4TH ANNUAL RAMADAN PRESENTATION 1435 AH (JULY 2014 CE DAY 12 Topic: Islam and Disputes Resolution Discussant: Sodiq Omoola DISPUTE RESOLUTION IN ISLAM OUTLINE Introduction Concept of Sulh in Islam Concept of Tahkim in Islam Arbitrable Matters Compromise of Action as an ADR process in Islam Nature of Arbitration agreement Amiable compositeur Med-Arb Muhtasib (Ombudsman) Wali al-muzalim Expert Determination (fatwa of mufti) Conclusion Introduction The growth of ADR in the modern world is very spectacular as it offers disputing parties quicker, confidential, cost-effective means of resolving dispute, while each party is generally placed at a win-win situation. ADR has become the best alternative to litigation in many jurisdictions in commercial, family, construction, banking, insurance and other forms of disputes. Though there is a common misperception that ADR is a novel western idea, many eastern and African legal systems have employed similar techniques for centuries. This fact is rarely acknowledged by western writers on ADR. In ancient religious legal traditions, particularly Islam, the use of ADR frequently is founded on deeply held religious, moral ethical and philosophical values. In light of their experience, such systems offer valuable perspectives on the virtues of ADR, and its ideal role in the resolution of everyday disputes. The religio-ethical underpinning makes ease for enforceability or ADR decisions by parties and institutions alike, in addition to the solemn position of the mediator or neutral third party’s position as the peacemaker who is conscious of the heavenly reward from the Law-giver. The next section discusses the concept of Sulh in Islam and its various meaning and postulation according to the Islamic tradition and practice. The distinguishing feature of Compromise of action and the role of amiable composition in relation to dispute resolution in Islamic law will also be examined. Prophet Muhammad was reported to have practice sulh (reconciliation, mediation, compromise) and tahkim (arbitration) in public disputes between fighting clan members, and private ones, including those between his Companions and their creditors. Further, a well-known hadith of the Prophet warns: “You bring me lawsuits to decide, and perhaps one of you is more skilled in presenting his plea than the other and so I judge in his favor according to what I hear. He, to whom I give in judgment something that is his brothers right, let him not take it, for I but give him a piece of the fire. An in-depth study of dispute resolution mechanism adopted in Islamic traditions shows the existence of the following: i. Sulh ii. Tahkim iii. Med-Arb iv. Muhtasib (Ombudsman) v. Wali al-Mazalim (Ombudsman Judge) vi. Expert determination (fatwa of Mufti) vii. Qada (Adjudication) Compromise of action and amiable composition are part and parcel of ADR process in Islam. This paper will also consider their relevance to dispute resolution in Islamic history. Concept Of Sulh In Islam Sulh is an Arabic word which literally means ‘to end a dispute’ or ‘to cut off a dispute’. Sulh is a settlement grounded upon compromise negotiated by the disputants themselves or with the help of a third party. Sulh have a long history within Arab and Islamic societies and have their roots in pre-Islamic Arabia. Sulh can be regarded as the preferred result and process in any form of dispute resolution; hence the application of all available means of amicable settlement of disputes can be deployed by the parties to arrive at settlement. Further, amicable settlement is favored to adjudication in Islamic jurisprudence. In tribal and Islamic cultures, the overarching objective in conflict settlement is collectivity. This is the similar position dispute resolution techniques in Chinese, Talmudic and Jewish bethdin . Anthropological research studies revealed that long before the appearance of Judeo-Christian era, Islamic ideals of moral harmony and peaceful settlement of disputes without confrontation and litigation pro-conciliation culture among the population in the Arab region. The dispute resolution landscape was however strengthened with the advent of the Prophet who was appointed as a trusted peacemaker among the Arab communities in Makkah. The basis for Sulh in Islam is influenced by the textual language and interpretation of both the Quran and the Sunnah. This is because Islam is not just a religion, it is a way of life and the parties and neutrals view resolution of disputes as a religious duty rather than a mere adjudication and litigious competition. The maintenance of relationships and the restoration of harmony is a duty on all members of the group as well as the third party intervener, whether he be a judge (a qadi), an arbitrator (a hakam) or a conciliator. Therefore, mutual interests and Sulh (amicable settlement) are the cores of any dispute resolution method in Islam in order to maintain the ties of among the community. The three distinct method of dispute resolution in ancient Islamic institutions are: Sulh, tahkim, and Qada. Sulh (amicable settlement) gets far more elaborate treatment than tahkim both in the hadith literature and in fiqh treatises that followed in later centuries of Islamic scholarship. The records of Prophetic tradition collected by Bukhari devote an entire chapter to Sulh, and exegetes hold this to be true in all instances of discord. The Prophet apparently found this particularly appropriate method for resolving financial disputes , legal rights or even those conflicts triggered by homicide. There are existing traditions on incidents where the Prophet mediated between two warring parties: as narrated by Sahl bin Sa’d that a dispute ensued between the people of Bani amr bin Auf, the Prophet went to them in order to make Sulh between them. The second was between the people of Quba when they fought and threw stones on each other. Allah’s Apostle was informed about it and he said: ‘Let us go to bring about reconciliation between them’. Concept of Tahkim in Islam The word Tahkim is loosely translated as Arbitration in Islamic law possess distinct character from the western notion of Arbitration. The history of tahkim in Islam took a markedly different course from the history of arbitration in the West. In the tribal society of pre-Islamic Arabia, tahkim, unlike arbitration, was not an alternative to an established judicial system. Rather, it was the only means of dispute resolution short of war if direct (Sulh) negotiation and mediation failed to achieve a settlement. Pre-Islamic tahkim was a voluntary procedure that could be triggered only by the mutual consent of the parties to the dispute and by their agreement on a specific individual to act as hakam (arbitrator). Hakams were poets and soothsayers (kahin) who were very revered and respected in the community or belong to a family famous for their competence in deciding disputes, perhaps possess supernatural powers. Any decision handed down is couched as revealed from the gods; the parties are quick to enforce the decision for fear of incurring the wraths of the deity. The advent of Islam in the Arabia met the pre-Islamic Tahkim. Prophet Muhammad (SAW) did nothing to change the voluntariness of its process and procedure which could be triggered only by the mutual consent of the parties to the dispute and by their agreement on a specific individual to act as hakam. However, Prophet Muhammad (SAW) who was able to control the legal system and development of the Muslim society was recognized as the hakam when dispute arose, this is pursuant to the verse of the Quran where Allah says: O you, who have believed, obey Allah and obey the Messenger and those in authority among you. And if you disagree over anything, refer it to Allah and the Messenger, if you should believe in Allah and the Last Day. That is the best [way] and best in result. The verse particularly stresses the importance of Muhammad being named hakam in disputes arising among the early Muslims and that the disputes would be decided in accordance with Gods law as revealed to Muhammad. Among contemporary Islamic societies, tahkim means the submission by parties to subject themselves to a decision of a third party – arbitrator (hakam) who well versed in Islamic law, in this case a single qualified arbitrator of their choice or a panel of two arbitrators. However, the disputants in a tahkim may dismiss the arbitrator or withdraw from the arbitration process before a decision is given. All the four Sunni school of thought accept Tahkim as a form of dispute resolution. The Maliki and Hanbali School advances the idea that an arbitration award is binding on the involved parties unless a judge rules that it is unjust or it contain flagrant injustice. The scholars of the Hanafi School emphasize the contractual nature of agreements to submit disputes for arbitration is tantamount to compromise, and advise that they should thus be enforced like other contracts. Shafii school hold that parties agreement makes the arbitral award binding. Settlement (Sulh) was a far more likely result of tahkim where the hakam was chosen by the parties than where he was imposed by some outside authority. Early Islam, therefore, never developed a system for the outside appointment of arbitrators, which is essential to enforcement of any agreement to submit future disputes to arbitration. However in situations where the parties cannot agree on a single hakam , both the practice in the early Islamic community was for each party to appoint one hakam to form a two man panel of arbitrators . This position is based on the verse which says If you fear a breach between the two, send a hakam from his family and a hakam from her family. If they wish reconciliation, God will make them agree. The two appointed hakam had to agree on the final decision. The application of this position was used in the failed tahkim which was an attempt to end the rivalry between Ali, the fourth Caliph, and his rival Muawiya, the governor of Syria. Other report from some of the earliest extant sources of Islamic legal traditions reflects an awareness of this shift in arbitral authority: Two men brought their dispute to ‘Ubayda and he said: Do you appoint me as a ruler over both of you? They said yes. He then judged between them. Arbitrable matters On the nature of dispute that can be subject of arbitration, Hanafi School confined it to private rights of the parties, which involve commercial and proprietary matters excluding hadd, qisas and ta’azir. Maliki School extends it to cases involving qisas while Shafii and Hanbali allow it only in commercial transactions. According to verses of the Quran and Article 1841 of the Madjallah, it is compulsory in dispute leading to separation between husband and wife and authorized with respect to disputes on goods and property. Arbitration is not allowed in mattes that need to be determined, such matters include nasab paternity, emancipation of slave, safih (spendthrift), mafqud al khabar (persons whose where about is unknown), waqf (endowment), had, ta’azir and revenue matters. These matters are within the competence of a qadi (judge) who sits over the dispute for adjudication. Compromise of Action as an ADR Process in Islamic Law The basic criteria to determine whether a case, is subject to compromise depends largely on the nature of rights involved, and the question of Halal and Haram. Compromise of action is allowed and indeed part of ADR process in Islam. This fact was reported in a popular letter written by Caliph Umar to Abu Musa Al Ash’ari on his appointment as a qadi (judge). One of the rules relating to compromise says: “All types of compromise and conciliation among Muslim are permissible, except those which make haram anything which is halal, and a halal as haram’ The Musannafi of al-San’ani Ibn Abi Shayba recorded opinions on the validity of a settlement entered into in a dispute related to portion in the estate which had not been clarified between Abd Rahman Ibn Awf, and one of his wives. Muhammad Ash- Shaybani also discussed the lawfulness of settlements of disputes over usurped property, blood-money payment, and ownership of dwellings and slaves. All matters are arbitrable in so far as the rights of Allah are not involved; Islamic law divides rights into two categories: huquq Allah (rights of Allah) and huquq il abid (right of human beings). Rights of Allah include salat, kafaara, hudud and no compromise is allowed in this aspects. It is a sin to try to maneuver around the rights of Allah. Nature of Arbitration Agreements in Islam: Islamic law does not have a general theory or arbitration agreement. The basic rule is that such agreement could be in writing or oral. Classical doctrine of arbitration agreement/clause is not part of the contract thus not binding. Islamic law adopts a ‘wait and see approach’ towards dispute. A study of the Majallah Adliyah - a compilation of law in the Ottoman empire, highlighted the basic conditions for validity of Arbitration agreement thus: a. The dispute must have already arisen and be clearly defined. b. The parties must have agreed to arbitration by reciprocal offer and acceptance. They must also say to the arbitrator ’Proceed to an arbitration between us because we have appointed you as an arbitrator’ c. There must be certainty as to the identity (name) of the arbitrator. If the party agrees that the arbitrator must be the first person they met on the path or first to enter the mosque, this will be void. Amiable Compositeur In Islamic Law Judges or arbitrators in Islamic law are allowed to suggest and guide the parties towards settlement with his sense of equity, justice and fair play. The potential outcome could be very different for the parties involved than if the judge proceeded with trial. This is the prevailing opinion among Muslim jurist derived from texts that arbitrator or Judges must attempt to settle according to the rules of fairness and public order. This position is also adopted by French Civil law but rejected by the Common Law which requires the arbitrator to decide in accordance with the law of arbitration. This is an inquisitorial justice system, and the roles of mediator and conciliator are included amongst them. Ibn Farhan refers to it as al-qada bi-l-Sulh (judgment by amicable settlement) when a qadi leads disputants towards Sulh to resolve their dispute. Indeed, the main value of tahkim, in the minds of the medieval Shariah scholars, was probably that it would likely produce a settlement of the dispute rather than a judgment. Med-Arb Specific reference to Arbitration and mediation combined to reach settlement was mentioned in the divine revelation: “If ye fear a breach between them twain appoint (two) arbiters one from his family and the other from hers; if they wish for peace Allah will cause their reconciliation: for Allah hath full knowledge and is acquainted with all things.” It appears that the above verse incorporates tahkim procedure in marriage and open option for mediation or conciliation of marriage disputes by two hakam, one appointed by the husbands family and one by the wifes, authorized to reach a compromise settlement. The role of an arbitration in Islam to first attempt mediation or reconciliation to reach settlement between the parties then go for arbitration if the settlement attempts fail. Article 1850 of the Madjallah provides that the arbitrator’s position is similar to an authorized agent for each of the disputants who instead of negotiating directly entrust this job to an agent in order to obtain a compromise. Any settlement reached under this circumstance shall be an award enforceable if ratified by the parties and equivalent to agency. Muhtasib (Ombudsman). The word ombudsman means representative in Swedish language has become a means of receiving complaint from the citizens about public actions. The modern concept was started in the Scandinavian region of Sweden in 1809; its origin can be traced back to the Islamic era. In this regard Dr. Pickle, Director General of the Austrian Ombudsman’s Office has made the following observation: “Institution to investigate complaints can only be seen in the context of public administration; hence their history is also the history of public administration as a whole. It goes back to the Koran. In the Koran itself the term ‘administration’ is not used, but in many of its verses the principles of political and administrative system are expounded. Justice is one of the basic principles of Islamic Ideology” Ombudsman has developed as an essential element of every welfare state to enhance the access to justice for ordinary people. The mandate of ombudsman was to monitor government administration to detect any maladministration which threatened the rights of the people. The Swedish encounter of Ombudsman occurred when the Swedish King Charles XII was in self-exile in Turkey after the Battle of Poltava in Russia, he learned about the second Muslim Caliph, Umar (634-644) and the concept of Qazi’ul’Quzat (“judge of judges”) developed in the Islamic law of the Ottoman Turks. Upon his return to Sweden in 1973, King Charles created the Office of Supreme Ombudsman to make government administrators more accountable. There followed fifty years of dispute between the King and Parliament about who the Chancellor of Justice would report to. The outcome was that in 1809, an ombudsman was established in the Swedish Constitution–linked to Parliament, not the executive. It was designed to be a supervisory agency independent of the executive branch of government, charged with the responsibility of protecting the rights of the people. This was however replicated in other Scandinavian countries with different names. There was the Norwegian ombudsmann and the Danish ombudsmand. England ombudsman experience was a creation of statue under the Parliamentary Commissioner Act 1967. Islamic history offer a detail account of offer ombudsman called the Muhtasib. The word Muhtasib is derived from the term Hisbah, or accountability, not only before society, but to one’s self and before higher powers. He takes account of matters such as weight and measures, quality of commodities in the market, observance of public modesty and honesty in trade. He also toured through the cities, towns and marketplaces on a daily basis to ensure that officials were acting correctly and morally, that customers were not cheated, and to offer resolution of disputes. The Muhtasib had the authority to reverse an official order which they deemed to be unjust. Muhtasib fall within the concept of dispute settlement in Islamic culture and also serves the role of dispute avoidance. One of the verses that gave authority for Muhtasib is: “Let there arise out of you, a band of people, enjoining what is right, forbidding what is wrong, and believing in Allah” The Prophet himself appointed Sa’d and Umar as the Muhtasib of Makkah and medina respectively. Their duty is to ‘Enjoin the good and forbid the evil’ in conformity with the above mentioned verse. According to Ibn taymiyah, duties of Muhtasib cover area not within the powers and ability of the qadi. Umar, Second Caliph of Islam, also utilized institution of Muhtasib . He enjoyed complete independence and functioned within the framework of an institution called ‘hisbah’. Its role was to ensure the observance of religious principles in daily life. In Egypt this institution existed up to the middle of the 19th century. Caliph Ali, fourth Caliph of Islam, in his famous epistle to Malik Ashtar, the Governor of Egypt, stressed the very fact about the working of the hisbah in the following manner: - “Out of your hours of work fix a time for complaints and for those who want to approach you with their grievances. For this purpose you must arrange public audience for them, and during this audience, for the sake of God, treat them with kindness, courtesy and respect. Do not let your army and police be in the audience hall at such a time so that those who have grievances against your government may speak to you freely, unreservedly and without fear. All this is a necessary factor for your rule because I have often heard the Prophet (Peace of God be upon him) saying: “that nation or government cannot achieve salvation where the rights of the depressed, destitute and suppressed are not guarded, and where mighty and powerful persons are not forced to accede to these rights”. An interesting fact in this context is that the institution of ‘hisbah’ and its functions was also adopted by the Crusaders in Jerusalem; they even used the even used the Arab world ‘Muhtasib’ although they changed it into ‘Mathessep’. The Functions of the Muhtasib also include helping the police to execute their duties, keep an eye on the working of professional like doctors, teachers and goldsmiths. The powers vested in the Muhtasib exceed the duties of modern day ombudsman practiced in the western world. Wali al-Mazalim (Ombudsman Judge) This is an officer of the king who is empowered to judge though not being a judge. This is to enable quicker and just settlement of disputes. This function is similar to the role played by the Chancellor in Equity under the Common law. This public officer appointed by the ruler combines the power of a Muhtasib and the duties of the qadi. To protect against the excess of the appointed authorities, especially the infringement of human rights, the office of Mazalim was created. The office was officially known as Wali al-Mazalim. It became necessary due to the expansion of the Islamic state beyond Arabia peninsula and the emergence of new types of dispute which required different approach at settlement not obtainable in the court of the qadi (judge). The system was first established by Caliph Umar Ibn Khatab. It was consolidated by Caliph Ali. Caliph Ali personally presided over the special Mazalim Court where cases against the administration were examined and people, irrespective of rank, status, wealth or position lodged complaints against any public officers. The office was later influenced by the Byzantine system of administration where it was known as agoranomos (Inspector of Markets). During the Abbasids era (750-847), complaint handling agencies called “Diwan-al-Mazalim” were established. Its function was to examine complaints brought by the public against government officials. The institution was headed by a senior judge responsible for examining the grievances. Persons appointed to this office are invariably of very high position in terms of knowledge and command respect among the people; Jafar Ibn Yahya al Barmaki, the famous minister of Caliph Harun ar-rashid and Ibn Khaldun were once custodian of this noble position. The modus operandi of the office is done in an informal manner in difference from the ordinary adjudication court in many ways: i. Admit evidence which are otherwise inadmissible or irrelevant in the court; ii. He may call witness which was not qualified before a normal court; iii. He may call a witness which he thinks can assist the case, whether or not the parties call such witness; iv. He may rely on his personal knowledge in deciding a case v. He may compel litigant to arbitrate; vi. He could postpone passing or judgment if it appears to be in the interest of the parties or resolution of the dispute. However, the decision (if any) must not be an affront to any provision of Islamic law under any circumstance. Modern democracies are increasingly adopting different version of Wali Al-Mazalim to settle administrative dispute and bureaucratic excesses. Expert determination (fatwa of Mufti) Expert determination, Mini-trial and Evaluative mediation involved the non-opinion of an expert neutral third party to give an assessment of a dispute based on merits and his expertise. In Islamic law, this role is an essential reserved for the mufti who gives fatwa (ruling) on contentious questions referred to them. Fataawa are non-binding evaluative opinions given by the Mufti (jurisconsult) to individual questioner (Mustafli). Such question is generally with reference to a real dispute and not hypothetical or probable dispute. Compilation of this fatwas (ruling) as a form of reference has formed a central part of Islamic literature and scholarship. This has played the role of dispute avoidance and settlement while encouraging scholarship. In modern day Islamic finance, acceptance of the role and position of the ruling of a neutral third-party expert in the Shariah as become part of the dispute resolution and avoidance framework. Conclusion Dispute Resolution mechanism has been as old as the religion of Islam as evidenced in Islamic history and tradition. Sulh or ADR is the norm in early Islamic communities rather than the being the alternative as known in the present day modernized litigious societies. It was colonialism and fragmentation of the vast Muslim empires that paved way for adversarial litigation around the Middle East and African communities. Sufficient of Sulh processes including Muhtasib (Ombudsman) has been fully developed in Muslim communities, and has been successful transplanted to other western communities which have continued to exist today with various forms. In addition, enough measures and mechanisms are in place to protect and promote access to justice of the ordinary citizenry. Such mechanisms are among those discussed above, namely the Wali al-Mazalim (ombudsman judge) and the hisbah. Today, however, most of these institutions have become extinct in most Muslim countries with the exclusion of Sulh (conciliation, mediation, negotiation) and tahkim. ADR in Islam is very robust and efficient as it allows compromise of action and amiable composition; a trend not obtainable in the common law of arbitration. The wide range of ADR options provide under Islamic law is not sufficiently explored by Muslim communities around world, perhaps the reason why the Islamic world is approaching a condition of disarray. 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