RESEARCH PROPOSAL

SULH: LAWS AND PRACTICE RELATING TO CODE OF CIVIL AND

ADMINISTRATIVE PROCEDURE IN ALGERIA

LAW RESEARCH METHODOLOGY

PREPARED BY:Dr.AZIEZ SALAH EDDINE

SEMESTER IIHARUN M. HASHIM LAW CENTRE

LL. M IN ADMINISTRATION OF ISLAMIC LAWINTERNATIONAL ISLAMIC UNIVERSITY MALAYSIA

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2014/2015

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. Currently, sulh (Alternative

Dispute Resolution) is taken by the most world’s legislation and they appear with

different names exceed eighty names: informal justice, Friendly Justice, agreed

justice, etc. Sulh under its main types (Negotiation, Mediation, Reconciliation,

Arbitration, ombudsman…..) includes dispute resolution processes and techniques

that act as a means for disagreeing parties to come to an agreement short of

litigation. The main objective of this paper is to prove that 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. The

beginning of process was by law no. 08-09 of February 2008, relating to arbitration,

mediation and conciliation has been inserted in the local code nicknamed: Algerian

Code of Civil and administrative Procedure (ACCAP), it entered into force as of

February 2009.

Keywords: Alternative Dispute Resolution, sulh, ACCAP.

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TABLE OF CONTENTS

Abstract…………………………………………………………………………… 2List of Contents…………………………………………………………………… 31. Introduction…………………………………………………………………. 42. Problem Statements………………………………………………………… 63. Purposes of Study……………………………………………...…………… 64. Objectives of Study……………………………………………………….… 75. Significances of Study……………………………………………………… 76. Arrangement of chapters……………………………………………….…… 77. Literature Review…………………………………………………………… 78. Methodology………………………………………………………………… 99. Conclusion……………………………………………………….………… 1

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References…………………………………………………….…………………… 1

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1. INTRODUCTION

Suhl processes are not newly created, but the truth is that it

has been rediscovered again. It is a well known fact that

people of early civilizations, like Muslims, have been using

the sulh processes to settle their disputes. Over fourteen

centuries ago, ADR methods have been used by Muslims to settle

their differences amicably and these methods have been

mentioned and encouraged in the sources of Islamic sharia.

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Islamic law has Exhorted on Sulh, and urged to resolve disputes

between believers specially and public people in general. We

can see as example, Mejelle1 has formulated 40 articles to deal

with sulh ,from Article 1531 to article 1571. 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.

Algerian mentality often prefers to resort to these methods of

dispute resolution, whether family councils or group, or what

is termed in some areas of the country: TarbatorTajmat.

2. BACKGROUND OF SULH

Sulh is an Arabic word which means "peace" as opposed to war.

It is derived from the same root as Arabic word musalaha

meaning reconciliation. In Islamic Law it means an "amicable

settlement." Literally according to Imam Nawawi, means ''to

1See The Mejelle, being an English translation of Majallah al-Ahkam al-Adliyah, translated by C.R.Tysler, B.A.L. and others, ( malaysia, the otherpress KL, 2011), 255-262.

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cut off a dispute'' or ''to finish a dispute''2 either directly

or with the help of a neutral third party. Sulh includes

negotiation, mediation or conciliation and also compromise of

action.3

Islam encourages people to solve their matters. Islamic

shariah contains the following ADR processes4: Sulh

(negotiation, mediation/conciliation, compromise of action);

tahkim (arbitration); med-arb (a combination of sulhand tahkim);

muhtasib (ombudsman); informal justice by the wali al-mazalimor

chancellor; and fatwa of muftis (expert determination).

In Algeria, during Pre-Islamic era the process of ADR Through

two main ways:

- Tribal arbitration: was considered as the sanctioned method

for of dispute settlement

-The priest: during this period, people referred disputes to

the priest (kahin) or soothsayers, this latter claimed

supernatural powers through divination(revelation from

heaven)5.E.g. kahina rule (Berber queen), Her personal name is :

Daya or Dihya , She was born in the early 7th century (585-

712AD) , Her title was cited by Arabic-language sources as al-

Kāhina (the priestess soothsayer). This was the nickname used

2Nawawi, tahrir alfaz al'tanbih, quoted from nazih hamed, akd sulh fi sharia islamia,(Damascus,darkalam, 1996), p5.3See Md. Zahidul Islam, Provision of Alternative Dispute Resolution Process in Islam, IOSRJournal of Business and Management (IOSR-JBM) ISSN: 2278-487X. Volume 6,Issue 3 (Nov. - Dec. 2012), PP 31-36; see <www.iosrjournals.org>.4See ahmed mahmoud, sulh wa tatbikatoho fi ahwal sharsiah, (jordanie, darthakafa,2010), p24-29; Nora Abdul HAK and others, Alternative Dispute Resolution(ADR) In Islam, (IIUM press,2011) 39-51.5See Nora Abdul HAK and others, Alternative Dispute Resolution (ADR) in Islam, (IIUMpress, 2011), P1-2.

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by Muslims because of her reputed ability to foresee the

future!

During Islamic era, the above holy Qur’an and Sunnah should form

the basis of every dispute resolution mechanism. Practiced in

rural societies by ‘shuyukh’ of the ‘kabila’ or ‘djemaa’ of the

’dachra’.

2.1 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.

The best way to resort to mediation in Algeria was to submit

one's complaint to the imam or sheikh of the village, who

applied religious concepts to keep parties from the ''shame''

of resorting to courts. This method was more practiced in

villages than in cities6.

2.2 Algerian Courts since French Colonization until this time:

The judicial system in Algeria draws on 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

6 See Goldsmith, Jean-Claude, ADR in business,Practice and Issues across Countries andCultures, edited by Arnold inges-housz,(Netherlands, wolters kluwer,2011)Nathalie najjar,2/562.

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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.

2.3 The new laws relating to ADR:

Law no. 08-09 of February 2008, relating to arbitration,

mediation and conciliation has been inserted in the local code

nicknamed: Algerian Code of Civil and administrative Procedure

(ACCAP). It entered into force as of February 2009

3. PROBLEM STATEMENT

Based on the above background, it can be pointed out the

problem as follows:

1. How a sulh mechanism can be used to reduce the size of

the disputes which have become tired of judges and

affect the yield qualitative judgments?

2. How sulh can settle disputes faster than settlement

through court process?

3. How sulh plays the main role in preserving the

relationship between the disputants and Protect their

dignity and privacy?

4. PURPOSES OF STUDY

The aim of the study was to obtain data on:

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1. To determine the application of sulh process as a new

mechanism in resolving the dispute in Algerian Code of

Civil and administrative Procedure (ACCAP)?

2. To investigate the barriers to implementation of sulh

in Algerian Code of Civil and administrative Procedure

(ACCAP)?

5. OBJECTIVES OF STUDY

1. To analyze the effectiveness of sulh as a short

process of dispute resolution

2. To investigate the main causes of dispute in

Algeria.

3. To investigate the number of disputes settled in

Court-annexed mediation and conciliation in Algeria.

6. SIGNIFICANCES OF STUDY

The importance of this study can be defined as below;

1. This study will contribute more in the empirical study on

the application of sulh / mediation in the settlement of

dispute in Algeria for the further researchers and who

are involved in this area.

2. Many researchers has been writing how the sulh (ADR) an

alternative dispute resolution better relied upon in the

settlement of dispute rather than litigation , this

study will have main portions to introduce sulh (ADR) role

in reducing the Accumulation of cases in court in

Algeria.

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7. LITERATURE REVIEW

To avoid the possibility of the similarities in similar

studies, the authors have done a search on this proposal. The

discoveries of the invention are as follows:

According to Arwi Abdul Karim (2012) in his Master

Thesis, talk about Alternative ways to resolve legal disputes

(reconciliation and judicial mediation in accordance with the

law of civil and administrative proceedings.) research

concluded that the role of sulh and judicial mediation in

accordance with the law of civil and administrative proceedings.

For comment this research did not covers enough about the

practice of sulh and the training of sulh officer.

Sualim sufian (2013) in his Doctoral Thesis, he talks

about Alternative ways for civil disputes resolution in

Algerian law. The research concluded the process of mediation

and arbitration under Algerian law and this research only

focus on mediation and arbitration and did not highlight the

other mechanisms of ADR.

Alawa hauoam (2012) in his Doctoral Thesis, he gives an

overview of the mediation in ADR and his application in

jurisprudence and in Algerian code of civil and administrative

procedure with the comparative study. This study is to cover

the procedural aspect of mediation system as ADR to resolve

civil dispute according to the Algerian Law, but This study

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did not cover sufficient the procedural aspect of ADR to

resolve administrative dispute.

Article by Trary Tani Mustafa (2009), who talks aboutMediation as a way to resolve disputes under the new AlgerianCode of Civil and administrative procedure, the author talkabout mediation and sulh under the new law of Algerian code ofcivil and administrative procedure.

Law no. 08-09 of February 2008, relating to arbitration,

mediation and conciliation has been inserted in the local code

nicknamed: Algerian Code of Civil and administrative Procedure

(ACCAP, 2008). It entered into force as of February 2009. But

The Algerian legislature organized the judicial sulh and did not

consider the friendly mediations that take place outside the

scope of the courts and considered it as one of the

alternative ways to resolve the conflicts amicably.

Bensoulah Shafiqa (2008) in his book talks about sulh in

administrative act, and spoke about reconciliation in the

administrative framework and how to avoid litigation, and in

the differences between the sulh and arbitration.

Umar al Zahi (2009) published by Supreme Court journalwith the title “alternative dispute resolution’’ the authortalk about the alternative dispute resolution throughmediation, sulh, and arbitration. And he did not givesuggestion on other subject matters of alternative.

Ahmed Mahmoud (2010) signified various importances on sulh

as a means to stop conflict outside of court, notably in

family and marital affairs. He also differentiated the nature

of law in Islamic law with Civil law, in which the law in

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Islam is acting and serve as the framework, guidance and

principles for the Muslim.

Nabil Sakr (2008) stress upon the principle of mediation,which has many advantages over Court litigation: it is lessexpensive and less time-consuming. The process gives controlof the outcome in the hands of the disputing parties ratherthan in the hands of a judge. In mediation the parties arefree to pattern their own solutions to the conflict, includingsolutions that a court would not be able to order. Whenongoing relationships are important, as, for example, in thecase of a dispute among family members or between businessesthat wish to continue a business relationship, mediationprovides an opportunity to resolve a dispute in a non-adversarial way so that important relationships are repairedand preserved.

Al-Mawardi in his book Al Ahkam Al-Sultaniyyah (the laws ofIslamic governance). It contains one chapter on judicialredress (Wilayat Al-Mazalim). Al-Mawardi has examined the judicialinvestigation of wrongs or abuses is concerned with leadingthose who have committed wrongs to just behaviour byinstilling fear in them, and with dissuading litigants fromundue obstinacy in their disputes by instilling a felling ofrespect.

We can see in the Mejelle, has formulated 40 articles to

deal with sulh, from Article 1531 to article 1571. 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.

Aida (2007) supports that the nature of sulh which is

somehow informal making it the best mechanism, as both parties

can sit down and discusses together how to make the best

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decision for their relationship. Islamic law often emphasize

on the legal maxim of “sulh is best” that originated in the

Qur'anic verse suggesting amicable settlement between husband

and wife: “it shall not be wrong for the two to set things

peacefully to rights between them: for sulh is best.”[Nisa: 128]

Nazih Hammed (1996) he give the systematic comparative showing

of act of sulh and his repercussion in ending of disputes under

Islamic law, however his searching is focus only about money

transactions and finally he tries to explain that the

informal character of mediation does not make the parties

enemies; the aim is to preserve relationship.

Furthermore, Sayed (2009) noted that the present day discourse

on the need and demand to evolve Alternative Dispute

Resolution mechanisms tends to focus upon the large, and

almost unmanageable, docket of litigation before Courts.

Hence, it is found that the rationale for ADR is perceived in

terms of reducing the arrears of cases in Courts.

8. METHODOLOGY

This study conducted by using qualitative research methods

with a normative, descriptive, and analytic approach.

The use of qualitative methods aims to obtain accurate data

on the application of ADR in Algeria.

My research methodology requires gathering relevant data from

both primary and secondary sources that include looking

through relevant statutes, rules and regulations, such as:

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Article 459 of Civil Law 2007 Law no. 90-04 on 06/02/1990 on individual dispute

resolution at work. Law no. 08-09 on 25/02/2008 includes the code of civil

and administrative procedure. Law no. 09-100 on 10/03/2009 includes How to appoint

judicial mediator. Executive Decree No. 91-272 dated 10/08/1991 determines

the jurisdiction of the regional offices ofreconciliation.

Reports, statistics, specified journals and books from libraryhelp in order to analyze the material and arrive at a morecomplete understanding and historical reconstruction of thecrucial advantage of the practice of sulh in Algeria.

This study uses multiple approaches so that author will getthe information from the various aspects of the process of ADRin Algeria.

1. Statue approach is done by reviewing laws and regulationsof other laws relating to sulh practice.

2. Case approach is done by performing a case study on sulh.

3. Historical approach is done by reviewing the backgroundof sulh in Algeria.

9. SCOPE AND LIMITATIONS

In this study, there is a time constraint to conduct further

research and information, Furthermore, lack of adequate

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sources and information acts as a stumbling block, which

affects the quality of this finding.

Many studies and researches focus on the practice of sulh in

Algeria in general view, not many have conducted extensive

researches particularly, because the new concept of law

governing the alternative dispute resolution since 2009.

The main purpose of this study is to identify and demonstrates

the crucial effectiveness of Sulh and its successful

enforcement under the Algerian Code of Civil and

administrative Procedure (ACCAP).

Particularly in its application in dispute resolution in many

subject matter (family, commercial....).

This study will concentrate only on the legal aspects of sulh

and its practice in enhancing amicable resolution.

10. ARRANGEMENT OF CHAPTERS

The research is compressed into five chapters. This

introduction chapter sets out the background of the study,

literature review, objectives of study, research methodology

and the limitations and scope of the research.

Chapter Two sets out the definition of Sulh in Islam and

Contemporary definition, ADR Processes In Islamic shariah,

Evidences of sulh in Islamic shariah , The rules which governs

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sulh and the role of Qadi .

Chapter Three, talks about the Court-annexed mediation and

conciliation in Algeria, Brief historical background of sulh

(ADR) in Algeria. Chapter Four, talks about Muslim Law Courts

and the French Colonial State in Algeria, Overview of

Algerian Courts since French Colonization until this time, The

new laws relating to ADR, Definition of Sulh in Algerian

legislation.

Chapter Five, talks about Laws relating to ADR in Algerian

Code of Civil and administrative Procedure. Lastly talks about

statistic and concludes the findings, recommend few

suggestions/recommendations and conclusion.

11. STATISTIC7

Until the end of 2009, unofficial statistics show that 1550

court-annexed mediators have been appointed in pending cases

in Algeria. Over 1520 of these disputes were successfully

settled.

12. RECOMMENDATION

Muslims should explore the relevant provisions of sulh or

ADR law.

7See El Ajeri, the Arab Dimension of Mediation,(in arabic), unpublished,quoted from Goldsmith, Jean-Claude, ADR in business,Practice and Issuesacross Countries and Cultures, edited by Arnold inges-housz,( wolterskluwer,2011) Nathalie najjar,V2/563.

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Choosing the best previous practice of sulh for be applied

in current cases.

The need for formation of professional Sulh Officers.

Upgrade the sulh process in all private and administrative

matters including family, ‘prud’hommes counsels’ (i.e.,

labour related).

13. CONCLUSION

Most of the legislation in the world have tended to interest

of alternative disputes resolution , which became impose

themselves in order to be an effective tool to achieve and

install justice and maintenance of rights, Where he was a

shift from the coercive justice to consensual justice.

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. In This context, the Algerian legislator has opted of

the reform of justice, while amended the Law on Civil and

Administrative Procedures, which included them in the law of

civil and administrative proceedings, under the title of

alternative ways to resolve disputes, which includes sulh,

mediation, and arbitration through the Articles, from 994 to

1005.

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19

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