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SULH BY TAHKIM

Literally means make someone as a middle man or mediator in a dispute


Terminologically, a voluntary appointment of a trusted person made by disputing parties in order to solve their
disagreement/differences.
Surah an-Nisa: 35
Hadith: Rasulullah SAW said to Abu Syurayh who use to be called Abu al-Hakam.
From Syurayh bin Hani from his father Hani, when he and his tribe came to see Rasulullah SAW, He (Rasulullah)
heard the people call him (Hani) with a title Abu al-Hakam. Then Rasulullah called Hani and said:
verily Hakam is Allah(s attribute) and upon Him alone all decisions are requested, then what is the reason you
are being called Abu al-Hakam? Abu Syurayh replied: Indeed, whenever my people had a dispute they would
come to me for solution, then I made my decision upon them and they accept it with willingness. Rasulullah
SAW responded: This is a good way, do you have children? Abu Surayh replied: yes, I do, they are Syurayh,
Abdullah and Muslim. He asked again: Which one is the eldest? Abu Syuraih said: Syurayh. Rasulullah said:
then, you are Abu Syurayh.
(narrated by an-Nasai)

Abdul Karim Zaidan: if both parties are not ready to accept the decision
made by Hakam, it is up to court to enforce that decision.

Jurists in Hanafi school of law: rights of human or in case there is combination, the right of human dominates.
Hakam may not be applied in Hudud, qias and diat because in applicable in sulh.
Jurists in Malikis: Hakam is only applicable in property related cases or categorized as a property but not in
hudud, lian, qisas, qazaf, talak, nasab, cases related to slavery. (ibnu Abidin, Hasyiyah Radd al Muhtar ala alDurr al-Mukhtar)
Jurists in SyafiIs: Applicable in property related cases and Muawadhah. Hakam (Tahkim) is not permitted in
hudud,qisas, nikah and lian.
Some Jurist in SyafiIs allowed Hakam to be applied in all matter.
Hanbalis; : Tahkim is permited in all matters other than nikah, lian, hudud dan qisas. It is because only the
ruler or their representative has right to decide on that matter.
In sum, matters related to right of human and matters where ijtihad may be applied, tahkim is applicable as a
form of settlement.

QUALIFICATION OF HAKAM IN FAMILY


MATTERS
Hanafis: only family members are allowed to be appointed as Hakam, trustworthy, influential, has
ability to convince parties through his/her opinion and view, just and his/her main objective is to
reconcile the parties.
Malikis: Hakam must be a muslim, male, a free man and attain age of puberty, faqih, and just.
Syafiis: Male Family members (in family dispute), muslim, a free man, just, has ability to reconcile
people.
Khatib Syarbini (one of Shafii scholar) does not require a Hakam must be a male.
Hambalis; male is not a requirement, faqih and has ability to reconcile in family dispute,
immediate Family members.
Reason of differences (male as a condition to become Hakam) : whether Hakam is a judge of
representative?

FAMILY MEMBERS AS A
REQUIREMENT/CONDITION TO BECOME HAKAM
Surah an-Nisa: 35
Al-Alusi: Hakam is designated to family members because they tend to
reconcile them, and well informed in hidden matters, and this (hakam
appointed among family members) is only a priority.
Ibn al-Arabi: the wisdom behind the appointment of Hakam among family
members is because they know the couple better than anyone else. Due to
their family tie, they normally hope that the couple relationship could be
restored. Besides, the couple would feel comfortable to express their feeling
because the hakam is their close family members.

Al-Jassas: if hakam is appointed among family members, (the couple) might not have
any suspicion (toward hakam) believing their sincerity to help.
Al-Qurtubi & Ibnu alArabi: the obligation to appoint hakam among family members
depends on the ability to execute such task (as hakam). If non of family members have
that particular ability, it is permitted to appoint hakam among non-family members.
Ibn al-Arabi added: if hakam is appointed among ajnabi, they must consist of two just
muslims and neighbor is more preferable since they are close with them and know the
situations better. Reconciliation is the main objective in tahkim process, so it could be
achieved by ajnabi hakam or family members, male or female. Therefore, whoever is
qualified and believed to perform such responsibility may be appointed as Hakam.

In sum, the appointment of hakam among family members is just a priority


not a requirement.

NUMBER OF HAKAM
Surah an-Nisa: 35 A hakam must be appointed for each husband and wife.
Islamic Jurists differs on the appointment of a hakam to represent both husband and wife:
Imam Malik: Husband and wife may appoint a hakam (to solve their dispute), provided they both
agreed.
Al-Dardir: there are circumstances which permit the appointment of a single hakam:
The dispute is not referred to a judge/court.
The appointed hakam is their immediate family member.
If the appointed Hakam is not among family members, he must fulfill conditions of hakam:
Attain the age of puberty (baligh)
Sound mind
Wise/intellect
Just
Know the background and factsof dispute

Khatib Syarbini: It is not sufficient to appoint a hakam to represent husband


and wife for they might have prejudice/suspicious that the hakam would
incline to any of them. Consequently, they would refuse to cooperate and
disclose any fact about the dispute.
Majority of jurists view that the appointment of two Hakams is a requirement
in family dispute unless by the consent of two parties.

FUNCTIONS OF HAKAM
To encourage disputing parties to perform sulh by performing what has been ordined
by Allah to them (Rights of husband and wife i.e material obligations, good treatment
and stop cruelty, obedience & loyalty).
Act as a mediator to settle arising claims (Ancillary rights),If their relationship is
irreparable and divorce is the best option for them.
Hakam is also empowered to issue any order or sentence the disputing parties based
on available evidence.
In sum, in the process of Tahkim, Hakam may act as a counsellor, and mediator at
one time and may also act as a judge when all available remedies are exhausted
(subject to different opinions among jurists.

WHETHER A HAKAM HAS AUTHORITY TO


ORDER THE PARTIES TO DIVORCE?
Generally, majority of jurists agreed that whenever a hakam decided to keep the
marital relationship, the disputing parties must accept such decision.
They disagreed when a hakam decided that the disputing parties should divorce:
Ata, Hanafis, Zahiris, and Jafaris, Ahmad bin Hanbal (muktamad view), majority of
Syafiis said; the consent of husband is required in case of talaq and the consent of a
wife is required in case of khulu.Hakam have no right whatsoever although both
hakams thought that the couple should separate.
Reasons: Hakam is only a representative, all his actions depend on the consent of the
principal and the function of a representative is subject to the authority vested by the
principlal i.e husband and wife.

AUTHORITY (ATHAR)
From Muammar from Ayyub from Ibnu Sirin from Ubaydah al-Salmani said: A man and
a woman who are in dispute came to Saiyyidina Ali (k.w.) with a mass of people. He
(Saiyyidina Ali) instructed the couple to appoint a hakam from both families. Then he
asked the appointed hakams:
Do you know what you suppose to do? If both of you are of the view that they must
be together, so unite them, but if you think that they must be parted, separate them.
The wife responded: I am willing to accept the ruling of al-Quran and everything therein
and I accept any punishment that would be imposed on me. The husband replied: I will
not accept a divorce. Then, Saiyyidina Ali said:
By the name of Allah, speak no more until you accept or speak as spoken by your
wife.


Based on the words of Saiyyidina Ali (k.w.) show that the consent of husband
and wife is important before any decision is made by hakam.
The underlined verse implicitly explained that the function of hakam is to
reconcile.
Imam at-Tabari: since hakam has no authority to issue any order for both
parties to divorce, the task should be transferred to a judge.

Second opinions:
Saiyyidina Ali, Ibnu Abbas, Abu Salamah bin Abd Rahman, al-Syabi, al-NakhaI and
Said Ibn Jubyr, accepted view in Maliki school, al-AwzaI, Ishaq and Ibnu al-Munzir,
2nd opinion by Imam Ahmad Ibnu Hanbal and qaul Marjuh in SyafiI School.
Their position: Hakam has absolute authority to give order for divorce because both
parties has mutually consented to choose hakam of their choice, therefore any
orders issued by hakam is binding upon them without a need to obtain their
consent.
The appointment is made by a ruler or judge to reconcile the parties. Therefore
Hakam shares similar position with a judge and he could decide what he perceives
as reasonable and as the best option for solving the dispute whether to reconcile or
separate them.

Their arguments:
If both of you are of the view that they must be together, so unite them, but if you
think that they must be parted, separate them.

Saiyyidina acknowledged the authority of hakam to reconcile and separate.


The word (


) does not only mean reconcile but also separate/divorce

because the latter also a form of Sulh if it suits them and able to remove
dispute and vengeance.

The second view is accepted:


Surah an-Nisa: 35 used the word (

) not ()

and both word have different meaning and function in alQuran and law
Literally hakam means hakim.
Dispute or (

) may lead to harmness ()

and it must be removed as Rasulullah SAW said:

(narrated by Ibn Abbas)

DIFFERENCES IN
TAHKIM VS SULH
Generally Tahkim is a part of Sulh / Sulh is general and Tahkim is specific.
Tahkim requires the intervention of third party (hakam) and he must be authorized by a
judge/court.
Sulh may be achieved by mutual consent between both parties without third party.
In Tahkim the parties do not have to compromise while Sulh requires compromise in certain
right/interest.
Hakim has right to impose any sentence to the parties based on available evidence while
Muslih/mediator does not have such power.
In Tahkim, decision is made by hakam and in Sulh, decision is achieved through consensus
by the parties.

SIMILARITIES IN
TAHKIM VS SULH
Tahkim and Sulh is an amicable settlement of dispute
outside of court.
The decision made in Tahkim and Sulh is binding upon
the parties.
Any cases decided in Tahkim may also be resolved in
Sulh