Effectiveness of Tahkim in Selangor Shariah Courts Based on Organizational Effectiveness Goal Approach

Abstract

The Shariah court will initiate tahkim (arbitration) when it finds that marital disputes between parties have reached a severe phase, known as ‘shiqaq’. Unlike sulh (mediation), full function of a hakam (arbitrator) has resulted in speedy and absolute resolution over the disputes. This is reached through the absolute power vested on the Hakam Keluarga (arbitrator appointed by the parties) in the final stage of tahkim to pronounce the talaq on behalf of the husband, or on behalf of the judge in the case of the Hakam Panel (arbitrator appointed by the court). In view of these, the effectiveness of tahkim has been concluded in the literature. However, empirical evidences to support these are still lacking. Despite the lack of past literature on tahkim, it was also found that most studies on the effectiveness of marital dispute resolutions, e.g. sulh, was studied descriptively, without adequate conceptual frameworks on effectiveness. Thus, as a preliminary study, the objectives of this study is to assess the effectiveness of tahkim based on the organizational effectiveness goal approach. Using thematic analysis on relevant laws on tahkim in Selangor and interviews data, it was found that tahkim has attained some of its objective, i.e. to resolve shiqaq between the parties, where most of the tahkim ended with divorce of the parties and expedition of case settlement. The interviewees have all agreed that tahkim has resulted in expedited case settlement for application of divorce under ss 47, 48 and 53 of the Family Law (State of Selangor) Enactment 2003. Other objectives, e.g. construing islah, i.e. tahkim as an amicable solution is yet to be adequately evident. It was also noteworthy that the perceived effectiveness by the interviewees are different, i.e. each looking at attainment of different objectives. As a result, the effectiveness of tahkim cannot be concluded considering the attainment of all objectives of tahkim. In fact, assessing tahkim effectiveness using the goal approach may also not be an accurate approach. In reference to the problems identified within the practice of tahkim, tahkim effectiveness may be assessed using other organizational effectiveness approaches, e.g. internal process approach and strategic constituency approach.  Therefore the findings of this study have implications on the researchers embarking on the study of tahkim effectiveness, particularly using the organizational effectiveness approach.