YHMT lwn. AHMB [2022] SLRHU 3

Syariah High Court of Selangor (Shah Alam)

Review of the Appointment of the Hakam Committee.

1.    The Applicant is the wife of the Respondent.  The parties were married on 1 May 1992 and were blessed with five children.  On 16 November 2020, the Applicant filed for divorce at the Syariah Subordinate Court of Sepang.

2.    When the Respondent objected to the divorce claim, the Judge of the Syariah Subordinate Court of Sepang ordered that the case to be referred to the Conciliatory Committee (“Jawatankuasa Pendamai”).  The Conciliatory Committee was established on 22 February 2021.

3.    On 26 August 2021 during the online court session, the Subordinate Syariah Court Judge read the report of the Conciliatory Committee.   The Conciliatory Committee failed to reconcile the parties. The Judge also recognised irreconcilable differences in the marriage of the parties and directed them to choose representatives to be appointed as Family Hakam.

4.    On 30 September 202, the Applicant, named MAMT, to act as the Family Hakam on her behalf.  Conversely, the Respondent did not appoint any representative but requested that the appointment of the Respondent’s Family Hakam be deferred to the subsequent session.

5.    Accordingly, on 7 October 2021, during the online mention proceedings, the Respondent, in representation, enlisted the support of his biological brother, AHMB, shall assumed the role of the Family Hakam on behalf of the Respondent.  Subsequently, the proceeding was adjourned to await the Hakam Proceeding report.

6.    However, the Applicant then requested for the Court to review the eligibility of the Family Hakam for the Respondent (AHMB) in terms of syariah and law as well as under Rule 8 of the Selangor State Family Arbitration Rules 2014, and to subsequently cancel and set aside the appointment of AHMB as the Family Hakam for the following reasons:

(a)         The Respondent’s Family Hakam had also served as a Syariah Court Judge in Sabah and had been working within the Malaysian Syariah Judiciary Department.

(b)         The Respondent’s Family Hakam did not meet the qualifications to be appointed as a fair and trustworthy arbitrator. The Respondent’s Family Hakam failed to apply the principles of justice, instead exacerbating the situation and the Applicant’s dispute with the Respondent, rather than striving for reconciliation.

(c)          The Respondent’s Family Hakam had a phone conversation with the Applicant’s child in March 2021. During that conversation, the Respondent’s Family Hakam listed the Applicant’s shortcomings, flaws, and mistakes.

(d)         The Respondent’s Family Hakam actions had also exacerbated the tensions that had already strained the Applicant’s relationship with the Respondent and the Respondent’s entire family.

(e)          While, the Applicant’s Family Hakam proactively took steps to make the arbitration process smoother. They created a dedicated WhatsApp group for ease of communication and even proposed conducting the proceedings online. This suggestion considered both the geographical distance between the arbitrators (the Respondent’s Family Hakam being in Sabah) and the Applicant’s Arbitrator’s age 60, making them more susceptible to COVID-19.

(f)           A Despite the qualifications of the Respondent’s Family Hakam, the arbitration proceedings were stalled due to a deadlock between the two arbitrators regarding the conduct of the arbitration. The Applicant, in light of this impasse, believes that the appointment of the Respondent’s Family Hakam should be reviewed and the individual to be replaced with another suitable candidate.

1.    Whether there have been any meritorious grounds for the Court to review the eligibility of the Respondent’s Family Hakam) and subsequently revoke his/her appointment in the aforementioned divorce proceeding?

(a)      The Court made a reference to Section 48 of the Islamic Family Law (State of Selangor) Enactment 2003 (Enactment No.2 of 2003)

“Section 48. Arbitration by Hakam

(1)  If satisfied that there are constant quarrels (shiqaq) between the parties to a marriage, the Court may appoint in accordance with Hukum Syarak two arbitrators or Hakam to act for the husband and wife respectively.

(2)   In appointing the Hakam under subsection (1), the Court shall, where possible, give preference to close relatives of the parties having knowledge of the circumstances of the case.

(3)  The Court may give directions to the Hakam as to the conduct of the arbitration and they shall conduct it in accordance with such directions and Hukum Syarak.

(4)  If the Hakam are unable to agree, or if the Court is not satisfied with their conduct of the arbitration, the Court may remove them and appoint other Hakam in their place.

(5)  The Hakam shall endeavor to obtain from their respective principals full authority, and may, if their authority extends so far, pronounce one talaq before the Court, if permitted by the Court, and in that event the Court shall record that pronouncement of one talaq, and send a certified copy of the record to the appropriate Registrar and to the Chief Registrar for registration.

(6)  If the Hakam are of the opinion that the parties should be divorced but are unable for any reason to order a divorce, the Court shall appoint other Hakam and shall confer on them authority to order a divorce and shall, if they do so, record the order and send a certified copy of the record to the appropriate Registrar and to the Chief Registrar for registration.

(7)  Unless he is a close member of the family of the parties, no person or Peguam Syarie shall be allowed to be present or represent any of the parties in the presence of the Hakam.

(b)      The Court indeed highlighted that the provisions specify that the primary criteria for the appointment of Hakam (arbitrators) should be to select individuals from among the close relatives of the parties involved, those who are familiar with the circumstances of the case.

(c)      The Court held that the Applicant’s concerns regarding the Respondent’s Family Hakam’s eligibility were unfounded. The Petitioner’s subjective perception of bias stemming from the Family Hakam’s position as a Syariah Court Judge did not constitute a valid legal basis to disqualify him as the hakam.  The Court further held the principle of party autonomy in arbitration, emphasizing that each party has the right to appoint their own Family Hakam. The Respondent’s choice of an arbitrator, even one holding a judicial position, did not inherently compromise the fairness of the arbitration proceedings.

(d)      Furthermore, the Court clarified the distinction between the roles of a Syariah Court Judge and a Hakam.  While the Family Arbitrator held a judicial position, their authority within the arbitration process is strictly limited by the applicable regulations and procedures.  They do not possess the full judicial powers they would exercise in a Syariah Court setting.  The position of a Syariah Court Judge demands that the individual possess expertise and knowledge in family matters, encompassing both Syariah law and Syariah legislation.

(e)      The Respondent’s Family Hakam is a close relative of the Respondent, specifically their biological sibling who is a Muslim man, of sound mind and having attained puberty.

(f)        Even though the Applicant challenged the competency of the Respondent’s Family Hakam to act fairly and impartially as an arbitrator under the provisions of Rule 8(1)(d), The Hakam (Selangor State) Rules 2014. The Court was of the view that the attributes of fairness and trustworthiness for a Family Arbitrator, as outlined in Rule 8 The Hakam (Selangor State) Rules 2014, are derived from the Islamic jurisprudence.  These attributes are subject to the trial Judge’s consideration upon the arbitrator is presented to the court.  Fairness and trustworthiness are inherent qualities, and the judge can assess them based on any criteria they deem appropriate. Should the trial judge determine that the arbitrator is fair and trustworthy during the appointment process, then it is sufficient.

(g)      However, the Court held that, the Applicant’s allegation regarding the fairness and impartiality of the Respondent’s Family Hakam are insufficient to convince the Court regarding the Family’s Hakam lack of integrity.  The Applicant’s claims are based on personal perceptions and prejudices rather than concrete evidence. The burden of proof lies with the party making the allegations.

(h)      The Court further explained that the Applicant’s criticisms of the Respondent’s Family Hakam’s alleged unprofessional conduct, stemming from the Arbitrator’s phone conversation with the Applicant’s child, to be unconvincing.  These allegations had lacked substantial supporting evidence and were deemed by the Court to have been superficial and without merit.

(i)        The Court found that the Applicant’s ground for review as lacking of merit and did not warrant the Court’s intervention to summon the Respondent’s Family Hakam to be investigated or replaced with another arbitrator.  The Court also found that there are no procedural flaws that could jeopardize the fairness of the Respondent’s Family Hakam’s appointment, considering Islamic law, civil law, and The Hakam (Selangor State) Rules 2014, as alleged.

Key Take Away

1. Subjective perception of bias is not enough to disqualify an arbitrator.  In this case, the Applicant believed that the Family Hakam might be biased because he  is also a Syariah Court Judge.  The Court held that it was not a valid reason to remove the arbitrator.
2. Party autonomy in arbitration is important.  It means both sides in an arbitration agreement have the right to choose their own arbitrator.  The Court held that the Respondent’s right to choose an arbitrator, even a judge, should be upheld as long as it doesn’t inherently make the process unfair.