A Comparative Analysis of Sulh in Syariah Courts and Mediation in Civil Courts
Introduction
The judicial landscape in Malaysia is characterized by a dual-track system, where both Syariah and civil courts coexist. Within this framework, the concepts of Sulh and mediation play crucial roles in dispute resolution. Sulh, an Arabic term referring to negotiation, arbitration, and reconciliation in Islamic jurisprudence, is widely practiced in Syariah courts. (Syasya, 2020) On the other hand, mediation is a well-established mechanism in civil courts, drawing from common law traditions. (Netipatalachoochote, 2020 ; Gomez & Ramcharan, 2014)
While both Sulh and mediation share the fundamental goal of conflict resolution, their underlying principles, processes, and applications differ significantly. (Syasya, 2020) Sulh is rooted in the Islamic legal tradition, emphasizing the preservation of social harmony and the collective well-being of the community. This approach contrasts with the more individualistic focus of mediation in civil courts, which prioritizes the interests and autonomy of the disputing parties. Whereas Sulh encourages the parties to find a resolution that benefits the broader community, mediation in civil courts typically focuses on reaching an agreement that satisfies the specific needs and preferences of the individuals involved in the dispute. (Syasya, 2020) The active participation of the Sulh officer in the sulh process also distinguishes it from the more neutral role of the mediator in civil court proceedings.
The implementation of Sulh in Syariah courts is influenced by the principles of Islamic law, where the sulh officer, may actively participate in the dispute resolution process. The Sulh officer plays a more active role in guiding the parties toward a mutually agreeable settlement, drawing on their knowledge of Islamic jurisprudence and the goal of preserving social harmony within the community. In contrast, the mediation process in civil courts is typically facilitated by a neutral third-party mediator, who assists the parties in identifying their interests and negotiating a resolution without imposing a binding decision. The mediator in civil court proceedings takes a more impartial stance, allowing the disputing parties to have greater autonomy in reaching an agreement that satisfies their individual needs and preferences.
Furthermore, the scope of Sulh extends beyond private disputes, as it can be utilized by the sulh officer within the courtroom or in a sulh room. Sulh can be applied to a wide range of conflicts, including family disputes, and inheritance claims, with the aim of preserving social harmony and community well-being. In contrast, mediation in civil courts is primarily focused on resolving civil disputes between private parties outside the formal litigation process. The mediator in civil court proceedings takes a more impartial and facilitative role, guiding the parties toward a mutually agreeable settlement without imposing a binding decision. (Hassan et al., 2013; Syasya, 2020)
The Legal Framework Governing Sulh in Syariah Courts and Mediation in Civil Courts in Malaysia
The legal framework governing the implementation of Sulh in Syariah courts and mediation in civil courts in Malaysia is distinct. Sulh is acknowledged and regulated within the Syariah court system, governed by the respective state Syariah Court Enactments, the Sulh Work Manual issued by the Department of Syariah Judiciary of Malaysia, and the Practice Direction No. 1 of 2010 of the Department of Syariah Judiciary Malaysia. These statutory provisions provide the legal basis for the Syariah courts to implement Sulh as an alternative dispute resolution mechanism, with the sulh officer playing a central role in the process.
In contrast, the legal framework for mediation in civil courts is primarily governed by the Mediation Act 2012 [Act 749], which provides a comprehensive legal structure for the mediation process within the civil court system. The Mediation Act 2012 establishes the rules and procedures for court-annexed mediation, where the courts can refer cases to mediation as an alternative to formal litigation.
Matters Referred to Sulh and Mediation Process
The Sulh process in Syariah courts is often utilized in resolving family-related disputes, such as divorce, child custody, and inheritance conflicts, as well as commercial disagreements, such as claims for breach of engagement, claims for mut’ah, claims for joint matrimonial assets, claims for wife’s maintenance, claims for maintenance for the disabled party, claims for maintenance deposit, claims for iddah maintenance, claims to amend maintenance order, claims for arrears of maintenance, claims for child maintenance, claims to amend order on child custody/child maintenance, claims to amend agreement on child custody/child maintenance, claims for child custody, claims for marriage compensation, claims for right to residence, claims for order for husband to reside together again, claims for wife’s obedience and claims for dowry.
In contrast, the mediation process in civil courts is applied to a wider range of disputes, including commercial conflicts, personal injury claims, and contractual disputes.
Legal Procedures for Sulh in Syariah Courts and Mediation in Civil Courts in Malaysia
In Syariah courts, the Sulh process is typically initiated by the parties themselves or by the court registrar, who may recommend Sulh as an alternative to formal litigation. The sulh officer plays a central role in the Sulh process, actively guiding the parties towards a mutually agreeable settlement and ensuring that the outcome is in accordance with Islamic principles and the preservation of social harmony within the community. The success of Sulh is measured not only by the parties’ satisfaction with the outcome but also by its broader impact on maintaining social cohesion and preventing the escalation of conflicts.
In civil courts, the mediation process is typically initiated by the parties themselves or at the recommendation of the presiding judge. The mediation is facilitated by a neutral third-party mediator, who assists the parties in identifying their interests, exploring possible solutions, and negotiating a mutually acceptable agreement. The success of mediation in civil courts is primarily measured by the parties’ satisfaction with the outcome and their ability to reach an agreement that addresses their individual needs and preferences.
Conclusion
In conclusion, the Sulh and mediation approaches in Malaysia’s legal system embody the contrasting philosophies of Islamic and civil dispute resolution. Sulh in Syariah courts prioritizes maintaining social cohesion and community well-being, with the sulh officer playing a central, guiding role. In contrast, mediation in civil courts emphasizes facilitating a mutually satisfactory settlement between the disputants. These distinct frameworks reflect the divergent principles and applications that characterize the two dispute resolution mechanisms.
Prepared by,
Aiman Izzuddin bin Jamaluddin
References
- Gomez, J., & Ramcharan, R. (2014, January 1). Introduction: Democracy and Human Rights in Southeast Asia. https://doaj.org/article/ab503ffd88ed45a1a88b2562bc1b4797
- Hassan, R., Khan, H A., Alshaikhli, I F T., & Hak, N A. (2013, March 1). Setting-up a Sulh-based, community mediation-type of online dispute resolution (ODR) in Malaysia. https://doi.org/10.1109/ict4m.2013.6518876
- Netipatalachoochote, S. (2020, January 1). The human rights protection system in Southeast Asia and ASEAN
- Syasya, N. (2020, June 5). The Significance Of Sulh In The Syariah Court. , 11(1), 141-141. https://doi.org/10.21043/yudisia.v11i1.7543
