The law and practice of Sulh in Algeria

AZIEZ SalaheddineG1321317

Outline

• Introduction• Brief historical background of sulh (ADR) in Algeria• brief background of Court-annexed mediation and

conciliation in Algeria • Muslim Law Courts and the French Colonial State in Algeria• Algerian Code of Civil and administrative Procedure(ACCAP)• References of ACCAP• Statistic• conclusion

Preface

ADR is taken by the most world’s legislation and they appear with different names exceed eighty names:

• informal justice,• Friendly Justice,• agreed justice , • In French are known as Regulation of conflict ,• external dispute resolution in some countries, such as Australia• in Canada is as “charging solutions to the rules of disputes ” • ..

Main types of ADR:• Negotiation/Mediation/Reconciliation/Arbitration/

ombudsman…..

Introduction

Islamic law has Exhorted on Sulh, and urged to resolve disputes between believers specially and public people in general .

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 prefer to resort to these methods of dispute resolution, whether family councils or group, or what is termed in some areas of the country : Tarbat or Tajmat .

Brief historical background of sulh (ADR) in Algeria

Pre-Islamic era:• Through tribal arbitration: was considered as the

sanctioned method for of dispute settlement .• Through the priest(ess): during this period,

people referred disputes to the priest(kahin) or soothsayers, this latter claimed supernatural powers through divination(revelation from heaven).

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 by Muslims because of her reputed ability to foresee the future!!!.

• Kahina ruled as a Christian queen ( "sorcerer") . but finally died around the end of the 7th century in modern-day Algeria in a battle near Tabarka: according to Islamic legends, she ordered -when dying after her final defeat in 702 AD- her sons to convert to Muslim faith.

During Islamic era • The 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’.

• main verses and hadiths about sulh.e.g:

الناس، : بين إصالٍح أو معروٍف أو بصدقٍة أمر من إال نجواهم من كثير في الخـير تعالى الله يقولالنساء عظيما. أجرا. نؤتيه فسوٍف الله مرضات ابتغاء ذلك يفعل 114ومن

• Meaning: 'No good is there in much of their private conversation, except for those who enjoin charity or that which is right or conciliation between people. And whoever does that seeking means to the approval of Allah - then We are going to give him a great reward’’{4:114}

Cont..• : الل=ه> وا ات=ق< و> ي?ُك<م? و> خ>

أ> ب>ي?ن> وا لBُح< ص?َأ> ف> Dو>ٌة إBخ? ن<وَن> Bؤ?م ال?م< ا Bن=م> إ تعالى الله يقول

الُحجرات م<وَن> َح> ت<ر? 10ل>ع>ل=ُك<م?

• Meaning: 'The believers are but brothers, so make settlement between your brothers. And fear Allah that you may receive mercy’’{49:10}

Cont..

• The Prophet (ملسو هيلع هللا ىلص) said: Shall I not inform you of something more excellent in degree than fasting, prayer and almsgiving (sadaqah)? The people replied: Yes, Prophet of Allah! He said: It is putting things right between people, spoiling them is the shaver (destructive). Reference: 4919/sunan Abu dawud,narrated by AbudDarda

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.

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 cities.

Muslim Law Courts and the French Colonial State in Algeria

Overview of 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 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:

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.

Algerian Code of Civil and administrative Procedure

Algerian legislature defined the sulh in Article 459 of the Civil Code, saying that:

Sulh:

« is  the contract which terminates the dispute between two parties or to avoid a probable conflict , so that each party waives on his some rights  ». 

Definition of Sulh in Algerian legislation

Laws relating to ADR in Algerian Code of Civil and administrative Procedure

• Part 5: ADR• Chapter one: sulh and mediation

• Section 1: sulh• (Art 990-993): by virtue of this law, whenever a

dispute is pending before a judge, the latter must suggest mediation to parties as the beginning or during the proceeding and at the time and place considered appropriate. Regulated conciliation is a compulsory court-annexed mechanism.

Cont..

• Section 2: Mediation

• (Art 994): the judge must propose to the parties to resort to mediation in all private and administrative matters beside family, ‘prud’hommes counsels’(ie., labour related) and public order fields.

• When a judge proposes mediation, he keeps jurisdiction over the subject matter. He appoints the mediator and is allowed to examine the merits of the dispute at outcome of failed mediation proceedings .

Time and body

• the time limit of the mediator’s mission is three months and can be extended upon parties’ agreement and mediator's request for a similar period (Art 996).

• the mediator can be a person or an association (moral person) according (Art 997)

Condition of mediator

(Art 998): a mediator will be chosen among persons renowned for their probity and law obedience . He must:

• not have been sentenced for shameful crime • not have been felony • not have been depraved of his civil rights. • must, moreover, be socially and morally acceptable • have had theoretical and practical training in mediation.

This training is deferent from the one practiced in rural societies by ‘shuyukh’ or’ djemaa’ of the’dachra’.

These requirements are related to the currently prevailing mediation practiced norms.

Process of mediation

• Mediation is covered by confidentiality (Art 1005).

• 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 1000).

Cont..

• (Art 1002)?: if a mediation fails, the judge immediately terminate the proceedings upon the mediator’s or the parties’ request.

• (Art 1003): when a mediation successfully ends, the mediator must inform the judge, in writing, of the solution reached. Thereupon he must prepare and sigh a report, co-signed par the parties, that discloses the content of the settlement.

Cont..

• (Art 1004): the judge re-examines the content of the settlement and homologate it in the minutes by virtue of a definitive non- recourse court order.

• Once registered, the court’s minutes documenting the settlement agreement transform it into an enforceable deed.

Statistic

• 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.

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 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.