In Arab culture, honour is a very important value, being a function of tribal identity: thus conflict arises simply when
there is a threat to honour. Bedouin life was harsh and nomadic, violent raids
and counter-raids upon neighbouring tribes being an acceptable mode of gaining
food and other needs. Bedouin values thus emphasize tribal cohesion and
loyalties, and threats to the honour of an individual, is accordingly a threat
to the honour of the tribe. Dishonour to a member (perhaps by the capture of a wife
or daughter) or death caused to an individual can conflagrate to tribal
conflict giving rise to endless cycles of vengeance. Survival of the tribe
depends on the timely resolution of disputes and plenty of exhortations to this
end appear in the Quran[1].
Family disputes, being the core of tribal life, are particularly addressed[2].
Even Arabic townspeople were tribal in social structure, thus the cohesion and
survival of tribe remains a priority. Traditional Middle Eastern
dispute resolution mechanisms has the centrifugal force revenge-forgiveness.
There appears to be several techniques commonly used in
Arabic culture, including counseling (nasihah),
conciliation (sulh), arbitration (tahkim) or mediation/intervention (wasaata, tawasut, alshafaa, aljaryu, husnu
al-sifara). The outcome becomes a concluded contract.
The process of sulh
or conciliation is often used in cases of wrongful death claims, as retribution
in terms of the life of the perpetrator is often the demanded recompense.
Often, the family of the guilty party would initiate the process for fear of
retribution. The appointment of a third party consisting of a panel of trusted
elders (jaha) signals a
declaration of temporary truce (hudna)
usually accompanied by a token payment of good faith (arwa). Through shuttle diplomacy (whereby the conflicting
families do not meet), a series of concessions and trade-offs are obtained,
ending in the payment of blood-money (diya
in cases involving death, or taawir
in other cases) in a public ceremony of musalaha
involving a ritual of seeking and giving forgiveness.
The process of tahkim
might take the form of conflicting parties seeking an opinion from a respected
legal scholar (mufti) who would
engage in a process of in-depth research to find the applicable legal rules on
the subject. The opinion is given, and although not binding, will be given
considerable weight.
The process of wasaata
is describes as “walking between disputants” whereby the intervenor in a
non-binding procedure seeks an amicable settlement by proposing solutions to
the parties.
Malays, by contrast, were sedentary farmers and
fisher-folk who were governed by adat on a day to day basis. There are two sets of adat
(custom) followed by traditional Malay communities: adat pepatih (a matrilineal custom) and adat temenggong (a patrilineal custom). Adat temenggong is modified through the influence of Islamic law to
the extent that it almost mirrors Islamic law in norms and administration.
In general, in
traditional Malay society, people who allow a conflict to reach a destructive
stage are considered anti-social, the emphasis being on familial and community
peace and harmony. The identity of the Malay is intricately linked to “adat”
that imposes very strict social rules and etiquette to the conduct and language
of the person. In Malay literature,
there is no concept of law as we know it today, but “adat” is supreme, laying down the rules for social engagement. At
community level, harmony and togetherness are the most important values, therefore
resolutions affecting community are induced by the concept of selaras (unanimity).
At the personal level, adat
ensures the observance of dignity and “muka” (face) whereby any affront to the
person’s face will bring deep shame and inflict a wound to the Malay psyche.
Since raised voices, anger and harsh words (affecting the harmony of the
environment) are deemed impolite, the Malay would internalize the offense
giving rise to “amok” in some rare cases,
whereby the person lashes out in a rampage of rage and anger, attacking and
killing anyone in his way.
Since face is important, Malays prefer not to publicise
disputes, turning to the village headman (ketua
kampong), or other respected figures within the community such as the imam of the mosque or an elder within
the family. The 3rd party would often give advise to the parties and
parties would accept the advise to achieve peace so that harmonious
relationships can be restored. Parties may be asked to “beralah” (give way) whereby the older would give in to the younger
on the grounds of immaturity, or conversely “bagi muka” (give face) to the elder by the younger. Almost all
disputes are settled in this manner, most times with simmering resentments on
the part of the party forced to give the concession. Once a year, on the Eid
everyone asks others for forgiveness for intended or unintended offences,
ostensibly clearing the slate for the next year.
Where a conflict is more intractable, it would be escalated
to the chieftain or escalated to the Sultan, being the final arbiter of all
things in the territory. The Sultan’s mythical divine qualities result in
unquestioning obedience by the abject subject, for fear of the curse of the
Sultan’s daulat (or majestic powers)
being visited upon the person or family of the disputant.
Although the modern Malay is less constrained by adat as his ancestors were, nevertheless
the reluctance to wash dirty linen in public and the upholding of face is
important. Disputes are therefore either brushed under the carpet or parties
are forced to reconcile through concessions for the sake of harmony. It is rare
that a “win-win” outcome would emerge. Otherwise, the modern Malaysian would turn to modern judicial institutions in seek of the upholding of their "rights", something introduced by the common law.
In terms of pre-legal action, it would seem that the modern Western style mediation (in particular facilitative mediation) is suitable to modern Malaysians to whom private and confidential methods would be more suitable in the preservation of "face" as compared to Arab values emphasising on the public and upholding of honour.
