Involvement of Conciliatory Committee and Arbitration By Hakam in Divorce Settlement

Penglibatan Jawatankuasa Pendamai dan Hakam dalam Penyelesaian Tuntutan Perceraian

Abstract

The involvement of the Conciliatory Committee and Arbitration by Hakam is synonymous when one party does not agree to the divorce. The Conciliatory Committee and Hakam have been given powers under the existing States Islamic Family Law in Malaysia. Almost all states in Malaysia involve Conciliatory Committee and Hakam as a consultant to deal with their divorce. Hence, this study focuses on the history of functions, sources of authority, and methods of execution of conciliation committee proceedings and arbitration by hakam in carrying out their duties. The study adopts a qualitative method through interviews and analysis from scholarly papers, journals, and related books. The data are analyzed using content analysis from informers, statutes, and legal methods. The finding shows that the practice of appointing the Conciliatory Committee and Hakam is grounded and being as consultants of the parties to determine maslahah if the marriage is continued or terminated due to talak. The parties who faced difficulty in handling the complexity of their marital problems finally would find ways to end the problem with the assistance of hakam when he pronounced talak on behalf of the husband. Therefore, the husband’s refusal to pronounce talak can be resolved by Hakam after the hakam finds that there exists a clear shiqaq between the parties. The study found that the functions and qualifications of the conciliation committee are clear. However, there is a slightly loose in the qualification of the hakam, especially on the aspect of the eligibility requirements and eligibility of the individuals to apply. The duty of hakam is a great task. The pronouncement of divorce by the hakam is considered talak ba’in sughra and the decision could not be appealed. This effect is seen as serious and the appointment of hakam should be measured respectively with the ability that equivalent to the burden of responsibility.