family law

1. ARBITRATION BY HAKAM

2. Arbitration by Hakam
 DefinitionDefinition
 AuthoritiesAuthorities
 Appointment ofAppointment of hakamhakam
 The Statutory ProvisionsThe Statutory Provisions
 CasesCases

3. Definition
Tahkim is a process whereby theTahkim is a process whereby the
disputing parties agree to appointdisputing parties agree to appoint
someone to act as an arbitrator for thesomeone to act as an arbitrator for the
settlement of the issue in dispute betweensettlement of the issue in dispute between
them. There should be clearthem. There should be clear
pronouncement (pronouncement (lafazlafaz) that a person has) that a person has
been appointed as an arbitrator, e.g., thebeen appointed as an arbitrator, e.g., the
parties should say, “parties should say, “we have appointedwe have appointed
you as hakam to judge over the disputeyou as hakam to judge over the dispute
between usbetween us””

4. Authorities
“And if you fear a breach
between the husband and wife,
appoint a hakam from his family and
a hakam from her family;
if they shall desire a reconciliation
Allah will cause them to agree”
Surah an-Nisa’ ; 35

5. Hadith on tahkim
““Whoever judges between two disputingWhoever judges between two disputing
parties (by way ofparties (by way of tahkimtahkim) and both of) and both of
them agree with (the arbitrator), whereasthem agree with (the arbitrator), whereas
he does not do justice between them,he does not do justice between them,
Allah will curse him”Allah will curse him”

6. Essential elements of tahkim
 Disputing partiesDisputing parties
 ArbitratorsArbitrators
 Sighah(ijab and qabul)Sighah(ijab and qabul)
 The subject matterThe subject matter
 Hukm(judgement)Hukm(judgement)

7. The Statutory Provisions
 Section 48 (1) to (7) of the IFLA,Section 48 (1) to (7) of the IFLA,
19841984

8. Shari’ah Court
Appoint two hakam if the Court is satisfied
that there are constant quarrels – S 48 (1)
Hakam for
the husband
Hakam for
the wife
Section 48 (4)
Section 48 (5) Section 48 (6)
The Registrar records the outcome

9. Cases on hakam
Balqis Fatimah v Najm ul Ikram Qureshi
Che Pah v Siti Rahmah
Talib v Che Sepiah
Nerah v Ahmad
Mohamad Sukri v Nalma

10. Cases on hakam
Balqis Fatimah v Najm ul Ikram Qureshi
Che Pah v Siti Rahmah
Talib v Che Sepiah
Nerah v Ahmad
Mohamad Sukri v Nalma