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Ismaili Constitutions: contract or covenant?

 
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PostPosted: Tue Mar 10, 2015 12:21 pm    Post subject: Ismaili Constitutions: contract or covenant? Reply with quote

As received:

“Imamat” is a legal entity (one of our constitutional Institution). This is not the same and distinct from Imam (as Imam of the Time). The attached agreement reaffirms this (read article 1 on page 2). This agreement which was released by the Aga Khan Council in Portugal, as a public document (as is our constitution which is being blocked like Farmans).

The following are excerpts from a publication, of/or with the consent & support of IIS. ( Includes legal cases in court against Imams in the past and registration of the constitution in for example India.If anyone wants the full 350 + pages, I am happy to share)


Ismaili Constitutions: contract or covenant? There is a significant difference between what is termed as the Ismaili Constitution and what is understood as a constitution in political literature of democratic institutions. The Ismaili Constitution is a legal document which was born in the modern period and was a result of the modernisation of the Ismaili Community. The earliest forms of the Constitution were produced under conditions of Colonial rule and as such it took into account how the Community could coexist with the legal framework around them.

There is, however, a big difference between the Ismaili Constitution and a secular constitution. While a secular constitution is subject to the will of the people of a

country or a polity, the Ismaili Constitution cannot be modified in a similar way, nor is it a contract between the leader and the led. The preamble of the Constitution, even though it is very minimal, bears strong elements of religious belief and doctrinal precepts, which cannot be changed. The identity of the Community revolves around these central principles. It is true that details of Ismaili law are subject to change, as we have seen in Jamal’s assessment of the development of Ismaili law over history, but there are two important parameters for this change: first of all, it is bound by the authority of the

Imam (unlike a secular constitution or contract) and secondly it responds to the needs of the Community some of which may come from the Community itself.

These requirements are all met in light of the Imam’s authority, rather than how people demand them to change. The Ismaili Constitution came into existence under modern conditions, but the underlying principles for its formulation were not modern in nature. There is a very strong sense of the divine and the sacred attached to it which makes it distinct from a constitution as a contract, so the best term which can characterise this Constitution is ‘covenant’ rather than ‘contract’. Legally the constitution is enforceable under the laws of the country.


The Ismaili Constitution: cornerstone for institutional change - Following the migration of the Ismaili imamate to the subcontinent at the time of Aga Khan I after a conflict which had arisen between the Ismaili Imam of the time, Aga Khan I, and the Qājār monarch in Persia74, some years later in the beginning ofthe 20th century, we witness the genesis of a document which was initially called ‘Rules and Regulations’ but was later labelled as ‘Constitution’. In the very early copies of this document, the title reads: “The Khoja Shia Imami Ismaili Council Rules and Regulations...Authorized by Mawlana Sarkar His Highness Aga Sir Sultan Mohamed Shah, Aghakhan”. When we turn the page (in the 1913 copy for Poona), we come up with a registration detail too: Registered under the Government of India’s Act XXV of 1867 AD. These rules and regulations which developed through time and finally culminated into what is known today as The Constitution of the Shia Imami Ismaili Muslims marks the beginning of an unprecedented era in the history of the Ismaili leadership. Before we go into any further details of the implications of the coming into existence of such a document and its role in defining authority and power for the Ismaili community (and hence the role of its present day institutions), one has to give a proper historical background as to why these documents came into existence in the first place and what was the context in which they were developed. Like any religious community, the Ismaili community had its own traditions of funding and economy: the tithes, zakāt or the part of one’s property or income which is believed to belong to the Imam. By tradition, every Ismaili was expected to give a proportion of his income (one tenth or one eighth) to the Ismaili Imam of his time. The issue would be simple in cases where the Imam was physically available and people had easier access to him, as when he used to live in Persia and his Persian followers did not have to go through a very complicated and lengthy process for submitting their dues, although even then there occurred certain conflicts between local leaders and the Imams, but these incidents could practically be ignored in the presence of the Imam. In the case of the subcontinent where the Imam finally moved, the local leaders, or Pīrs, used to collect the funds and then s end t hem to Persia to the Imam’s headquarters. In any event, the point was that these local leaders had direct control and access to the funds which were, by tradition, to be submitted to the Imam. As t he I mam m oved to India, new tensions began to surface between the Ismaili Imam and the local leaders, who were practically the elite of the Ismaili community which was known as the Khoja community. In the process of a dispute over the leadership of the Imam, the Khojas split into two groups: one which accepted the leadership and authority of the

Aga Khan as their rightful Imam and the heir to the imamate of Ismaili Imams and the other which did not accept the Aga Khan as the Imam and claimed that they had never been Ismailis. This latter group divided into two groups: a group which declared itself as Sunni (belonging to the bigger mainstream group of Muslims) and another which declared itself as Twelvers (like the majority of Shiʿi Muslims in Persia). The biggest change occurs at exactly this point. These schisms were nothing new in the history of a Muslim community (and the Ismaili Community too), but the way the issue was dealt with on the side of the Ismaili Imam was a method which had never been tried before. The Ismaili Imam resorted to the court to resolve the issue. This is a unique incident in the entire history of this community. No one had ever before, taken an issue of conflict and dispute inside this minority community to an outside court. The Aga Khan took the lawsuit to the British Raj of India. There are two major and important lawsuits by the Ismaili Imams in India: one at the time of Aga Khan I – the first Ismaili Imam who lived the later part of his life in India – and the other at the time of Aga Khan III. Both of these cases were somehow linked to the way properties and funds are managed by the Imam and the e xtent of t he authority of the heir to the Ismaili imamate. This may appear at first glance to be a purely financial issue, but the implications were far greater than a simple financial dispute. These legal disputes occurred during the lifetime of two Ismaili Imams, Aga Khan I

and Aga Khan III. The clashes were in essence a challenge to the authority of the Ismaili Imam. The struggles and challenges had in fact begun to surface just before the Imam immigrated to India. Daftary gives an account of the backgrounds of the conflict:

Under the circumstances, the first Āghā Khān established his religious authority in India only after some difficulty. He did, in fact, face periodical troubles from certain dissident members of the Khoja community. In 1829, while he was still in Persia, some Nizārī Khojas of Bombay had refused to pay the customary dassondh to him. As a result, he sent to Bombay a special representative, accompanied by his maternal grandmother, who filed a suit against the dissidents in the Bombay High Court. The suit was withdrawn in 1830 (Daftary, 2007:474).

Another legal case was later on filed in 1847 in which the Aga Khan’s brother represented him and the case was about an inheritance issue of two Khoja sisters: In this litigation, the Āghā Khān, then represented in court by his brother Muhammad Bāqir Khān (d. 1296/1879), upheld the rules of female inheritance as laid down in Islamic law, while his Barbhai opponents supported the Khoja custom that essentially deprived the females from such inheritance. In the resulting judgement, Sir Erskine Perry, the presiding judge, ruled that the custom of the Khojas should prevail even though it might be in conflict with the provisions of Islamic law. This judgement in effect recognized the Khojas as a distinct community (Daftary, 2007:475).

It is at this point that the issue of authority is taken very seriously by the Aga Khan and he attempts to take measures in order to define the identity of his followers and the confines of his own authority. Daftary explains these steps as follows: It was under such circumstances that the Āghā Khān launched a widespread

campaign for defining and delineating the specific religious identity of his Khoja followers. In 1861, the imam circulated a document in the Bombay

jamāʿat summarizing the religious beliefs and practices of the Nizārī Ismāʿīlīs, especially regarding marriage, ablution and funeral rites, and requesting every Khoja family to sign it. The signatories were, in effect, asked to pledge their loyalty to the imam and to their Ismāʿīlī Shīʿī Muslim faith as interpreted by

him (Daftary, 2007:475).

The tensions did not come to an end and continued further. Dissident Khojas filed a lawsuite against the Aga Khan emphasising that they had been Sunnīs (Daftary, 2007:475). The climax of these legal cases was a case which was later known as the Aga Khan Case and in the course of this lawsuit, the matter was finally resolvedand the first Aga Khan overcame the challenge he had faced against his authority by some dissident Khojas:

This case, generally known as the Aga Khan Case, was heard by Sir Joseph Arnould. After a hearing of several weeks, in the course of which the Āghā Khān himself testified and the history of the Khoja community was fully reviewed, in November 1866 Justice Arnould rendered a detailed judgement against the plaintiffs and in favour of the Nizārī imam and other defendants on all points. This judgement legally established the status of the Nizārī Khojas as a community of ‘Shia Imami Ismailis’, and of the Āghā Khān as the murshid or spiritual head of that community and heir in lineal descent to the imams of the Alamūt period. It also established, for the first time in a British court, the rights of the Āghā Khān to all the customary dues collected from the Khojas, and placed all the community property of the Nizārī Ismāʿīlīs in his name and under his absolute control. The first Āghā Khān’s authority was never seriously challenged again (Daftary, 2007:476).

Another instance of such legal disputes occurred at the time of Aga Khan III but the nature of the grievance was more specifically financial and it came from inside the family of the Imam himself, although it also had some implications as to the authority of the person of the Imam himself. The date this case occurs is around the same time when the first constitution for the Ismaili community is developed. Daftary summarizes the issue as follows:

While the Aga Khan was in East Africa, a suit was filed against him in the Bombay High Court by certain discontented members of his family led by Ḥājjī Bībī, a cousin and another daughter of Āqā Jangī Shāh, and her son Ṣamad Shāh. The litigants had certain financial grievances regarding their shares in the estate of ĀghāKhān I, and they also raised claims to the current imam’s income and status. After lengthy hearings, in 1908 Justice Coram Russell, the presiding judge, ruled against the plaintiffs, confirming the Aga Khan’s rights to the estate of his grandfather and to the offerings made to him by the Nizārīs. This ruling also established that the Nizārī Khojas were distinct from the Shīʿīs of the Ithnāʿasharī school, since the plaintiffs had claimed adherence to Twelver Shīʿism (Daftary, 2007:481).

It is from this point onwards that constitutions begin to appear in the administrative and legal affairs of the Ismaili community. In other words, they also become an apparatus of the authority and power of the Ismaili Imam and it is in this era that we see the consolidation of the authority of the Ismaili Imam but ‘after the earliest challenges to his status, Aga Khan III’s leadership was accepted unquestioningly by his followers’ (Daftary, 2007:486)75.

The basic features of the constitution in terms of its theological content are pretty much the same as earlier periods (as we will see below in a quotation from the Constitution). There are, however, two major elements which are worthy of attention here. First of all, it is a matter of the flexibility of Ismaili law in its form(s): ‘not o nly a re t he texts differently constructed but they have incorporated different

Here, there are certain questions to be asked. What is the role of the constitution at this stage in accommodating institutions? Is it the constitution which facilitate the development of institutions or is it the personal authority of the Imam (Aga Khan III)? The constitutions do not seem to have become a solid reference point as such,

Development in the practices of the Ismaili community and the decisions of the Ismaili imamate and particularly the Aga Khans has never occurred without a

context. Examples of these changes can be seen in the tensions which occurred during the imamate of Aga Khan I and led to a court case which was eventually resolved in favour of the Aga Khan. Later, similar changes occurred in the time of Aga Khan III over a dispute with some of his relatives and a certain representative of his in Persia at that time.
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