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Skip da main content. Log In Sign Up. Background xz ADR in Islam 4. Brief historical background of sulh ADR in Algeria 5. Brief background of Court-annexed mediation and conciliation in Algeria 6. Abstract In Islam, many disputes are strongly recommended to be settled through negotiation, mediation, conciliation, arbitration or compromise, as these are nearer to norms laid down in the Holy Quran and Hadith.
Mediation and conciliation under Islamic law are conducted in an informal manner without being governed by any formal rule, as is the ever increasing trend in the modern institutional mediations.
Informal manner is found to be a useful thing which helps the process of settlement. Countries like China, Korea, Japan and Vietnam conducted mediation without adhering to any formal rules. Volume 6, Issue 3 Nov. Alternative Dispute Resolution, sulh, mediation 2.
Suhl processes are not newly created, but the truth is that it has been rediscovered again.
Datos Comparados —
It is a well known fact that people of early civilizations, like Muslims, have been using the sulh processes to settle their disputes.
Ddz fourteen centuries ago, ADR methods have been used by Muslims to settle their differences amicably and these methods have jlradp mentioned and encouraged in the rz of Islamic sharia. Islamic law has Exhorted on Sulh, and urged to resolve disputes between believers specially and jradp people in general. We can see as example, Mejelle2 has formulated 40 articles to deal with sulh ,from Article to article This proves in Islam, that sulh exists not only as general word, but it is a legislative system, which use many procedures which arrive to settlement dispute or conflicts.
Algerian legislator has introduced these alternatives, in an effort to reduce the size of the disputes which have become tired of judges and affect the yield qualitative judgments. It also was intended to prompt settlement of disputes and avoid prolonging the introduction and respond to appeals and alternative ways by sulh and mediation as the precious traditions. Background ofsulh ADR in Islam 3.
Sulh, also solh Arabic: It is derived from the same root as Arabic word musalaha meaning reconciliation. In Islamic Law it means an “amicable settlement. jorap
Literally means ”to cut off a dispute” or ”to finish a dispute”4either directly or with the help of a neutral third party. Sulhincludes negotiation, mediation or conciliation and also compromise of action. Sz becomes a conclude contract by offer and acceptance. ADR is an abbreviation that carries various meanings.
The letter ‘A’ does not only refer to one word, ‘alternative’, but to several words additional, amicable which carry different meanings. ADR may be described as a structured negotiation process during which the parties in dispute are assisted by one or more third person sthe ‘neutral’ ,and that is focused on enabling the parties to reach a result wherby they can put an end to their differences on an voluntary basis8. Islamic shariah contains the following ADR processes9: Ddz of sulh in Islamicshariah: But if one of them oppresses the other, then fight against the one that oppresses until it returns to the ordinance of Allah.
And if it returns, then make settlement between them in justice and act justly. Indeed, Allah loves those who act justly. The believers are but brothers, so make settlement between your brothers.
And fear Allah that you may receive mercy. And whoever does that seeking means to the approval of Allah – then We are going to give him a great reward. Sulh in the hadiths of prophet SAW we can see the process of ADR was used for dispute settlement in the pre- Islamic era are the dispute on the replacement of theBlack Stone of the Kaaba to its position amongst the tribes of Quraish after the reconstruction of the Kaaba.
The arbitratorin the case was the holy Prophet Mohamed S. Yes, Prophet of Allah! It is putting things right between people, spoiling them is the shaver destructive ” narrated by AbudDarda.
He who makes peace between the people is not a liar”. Once the people of Quba fought with each other till they threw stones on each other. When Allah’s Apostle was informed about it, he said, “Let us go to bring about a reconciliation between them. Al bukhari mentioned in his sahih: To make peace with Al-Mushrikun”. Narrated Al-Bara’ bin ‘Azib ra: Al-Mushrikun pagans would not return any of the Muslims going to them, and 3.
That was the position of the holy Prophet among the people. And after this, between Al-Hasan and muawiyah, Al bukhari mentioned in his sahih: This son of mine is a Saiyid i. If these killed those and those killed these, who would be left with me for the jobs of the public, who would be left with me for their women, who would be left with me for their children?
Al-Hasan and negotiate peace with him and talk and appeal to him. The rules which governs sulh and the role of Qadi: The only rule which governs Sulh in Islamic shariah is that no compromise is possible in the domain of huquq Allah i. Rights of Allah which include hudud punishment, zakat, kaffarah, etc.
Any effort circumvents the provisions prescribed for this through mutual settlement is sinful and avoid.
If the matter is already before the court, it has been made the duty of the Qadi to bring about settlement through compromise is lawful and preferable as it settles dispute. However, if the Qadi fails in this effort to bring compromise, then the dispute should be judicially determined in a proper matter Brief historical background of sulh ADR in Algeria 4. This was the nickname used by Muslims because of her reputed ability to foresee the future!!!. Kahina ruled as a Christian queen “sorcerer”.
Evidences of sulh in islamicsharia should form the basis of every dispute resolution mechanism. Brief history of Court-annexed mediation and conciliation in Algeria: Mediation was now in Algeria before the recent new law.
It was practiced historically in the rural communities by imams, in the azzaba groups as well as in tribal and notables’ counsels. This method was more practiced in villages than in cities Overview of Algerian Courts since French Colonization until this time: The judicial system in Algeria draws jkradp both French and Islamic legal tradition. Trade and investment and company law is regulated by secular legislation. The Algerian Family Code includes strong elements of Islamic law.
There are three levels of court in Algeria: Daira tribunals are the courts of first instance for civil and certain criminal matters. There are 48 Wilaya courts, one in each province, which have appellate jurisdiction over lower court decisions in civil matters. The Supreme Court, seated in Algiers, is the court of final appeal.
The new laws relating to ADR: It entered into force as of February Definition of Sulh in Algerian legislation: Algerian legislature defined the sulh in Article jorqdp the Civil Code, saying that: Sulh and mediation 7.
Regulated conciliation is a compulsory court-annexed mechanism He appoints the mediator and is allowed to examine the merits sz the dispute at outcome of failed mediation proceedings These requirements are related to the currently prevailing mediation practiced norms. By virtue of its court-annexed nature, the mediation procedure his followed by court officer of the appointing tribunal.
He takes charge of the mission of serving the parties and the mediator Art Thereupon he must prepare and sigh a report, co-signed par the parties, that discloses the content of the settlement. Mediation is covered by confidentiality Art Until the end ofunofficial statistics show that court-annexed mediators have been appointed in pending cases in Algeria. Over of these disputes were successfully settled.
In this light, the Algerian legislature had taken to consider other legal mechanisms to help the judiciary to adopt them, thereby to enable the litigants to resolve their problems quickly and effectively with their involvement in finding solutions for themselves, who is not achieved by litigation process. Remember me on this computer.
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