Posted: Sun Jan 20, 2019 11:58 pm Post subject: CAB - Ismaili Conciliation and arbitration Boards
These are the constitutional rules and regulations and form a part of the Ismaili constitution of 1986 as amended in 1998 which are all to be read with Farmans which Imam has said in the constitution are freely available to all Ismaili.
There are two matters which are unknown to most.
Firstly the constitutional rules and regulations under and of the Ismaili constitution are issued by the Jamat's National Councils, and not by Hazar Imam. These Canada rules were signed and issued on the same day by the NCAB Canada and so, will have been approved by the National Council of Canada and ICAB, in February 2010. If anyone has a copy of the approvals please share them.
Secondly that in the case of disciplinary action by any Ismaili which can be against any Ismaili for example for excommunication. An Ismaili can be excommunicated. However His or Her Bayah, is between the Imam and him or her. That can only be broken by either an individual revoking the Bayah, or the Imam personally excommunicating him or her, which has not happened in the history of Ismailism.
Posted: Mon Jan 21, 2019 12:07 am Post subject: Ismaili constitution and CABS - NCABS
Ismaili Constitution re National Conciliation and arbitration Boards, and disciplinary action and excommunication
1 Article 13 - The role
i. “to act as an arbitration and judicial body and accordingly to
hear and adjudicate upon disciplinary action to be taken
under this Constitution and any Rules and Regulations.
ii. “Proceedings for disciplinary action against any Ismaili shall be
commenced by NCAB upon a complaint lodged by any Ismaili”
b. Article 14, including “1 Any Ismaili shall be liable to disciplinary
i. 14.1a 14.1b 14.1d 14.1f 14.2b 14.3b 14.3e ,and
2. The Boards - Article Thirteen NATIONAL CONCILIATION AND ARBITRATION BOARDS
13.1 There shall be a National Conciliation and Arbitration Board for each of
the territories specified in the Seventh Schedule to be known as "His
Highness Prince Aga Khan Shia Imami Ismaili National Conciliation and
Arbitration Board" for the territory for which it is formed:
(a) to assist in the conciliation process between parties in differences or
disputes arising from commercial, business and other civil liability matters,
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domestic and family matters, including those relating to matrimony,
children of a marriage, matrimonial property, and testate and intestate
(b) to act as an arbitration and judicial body and accordingly to hear and
(i) commercial, business and other civil liability matters;
(ii) domestic and family matters including those relating to matrimony,
children of a marriage, matrimonial property, and testate and intestate
(iii) disciplinary action to be taken under this Constitution and any Rules
13.2 Each National Conciliation and Arbitration Board shall be composed of:
(a) a Chairman; and
(b) four other members.
13.3 The Chairman and other members of the National Conciliation and
Arbitration Board shall be appointed for a term of three years.
13.4 Each National Conciliation and Arbitration Board shall have such
Rules and Regulations as may be prescribed to:
(a) constitute Regional Conciliation and Arbitration Boards within its
jurisdiction for the proper carrying out of its functions;
(b) determine the composition of each Regional Conciliation and
Arbitration Board within its jurisdiction;
(c) define its functions, powers and duties and those of each Regional
Conciliation and Arbitration Board within its jurisdiction;
(d) define the functions and duties of its members and those of each
Regional Conciliation and Arbitration Board within its jurisdiction;
(e) provide rules of procedure for the conduct of conciliation by the
National Conciliation and Arbitration Board and each Regional Conciliation
and Arbitration Board within its jurisdiction;
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(f) provide rules of procedure for the conduct of matters of which it and
each Regional Conciliation and Arbitration Board within its jurisdiction is
seised, which shall include provision for filing of application and reply,
notices of hearing, attendance of parties and witnesses, administration of
oath, conduct of proceedings, and pronouncement of decisions;
(g) provide remedial procedures for breach of any provision of its Rules and
(h) provide consultative procedures for making recommendations for
appointments to the National Conciliation and Arbitration Board and each
Regional Conciliation and Arbitration Board within its jurisdiction; and
(i) provide for such other matters as Mawlana Hazar Imam may determine.
13.5 Each National Conciliation and Arbitration Board shall upon the
application of any Ismaili assist him to settle any differences or disputes
with another party residing in the area of jurisdiction of the National
Conciliation and Arbitration Board in relation to any of the matters
mentioned in Article 13.1 (a).
13.6 Each National Conciliation and Arbitration Board shall hear and
(a) applications in relation to any of the matters mentioned in Article
13.1 (b) ;
(b) appeals from any decisions of any Regional Conciliation and Arbitration
Board within its jurisdiction and referred to it by that Regional Conciliation
and Arbitration Board; and
(c) appeals allowed by a special leave of the National Conciliation and
Arbitration Board from decisions of any Regional Conciliation and
Arbitration Board within its jurisdiction.
3. Article Fourteen DISCIPLINARY ACTION
14.1 Any Ismaili shall be liable to disciplinary action who:
(a) subjects to contempt or ridicule the Holy Quran, the Holy Prophet, the
Ahl-al-Bayt, Mawlana Hazar Imam, this Constitution, any Rules and
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Regulations, any Farman, or any Ismaili religious literature or any rite or
(b) engages in activity aimed at creating unnecessary conflict between any
of the tariqahs of Islam or between Islam and other religions;
(c) without the permission in writing of the National Council obtained
through the Regional Council within whose jurisdiction he resides, prints,
publishes, or circulates any material or makes any statement or convenes a
meeting or assembly purporting to be on behalf of or in the name of or
relating to Mawlana Hazar Imam, the Ismaili Tariqah, the jamat, any Council
or any other Ismaili institution;
(d) conducts himself in a manner likely to offend the religious sentiments of
the jamat, or to cause disaffection in the jamat, or to create disturbance or
nuisance in any jamatkhana or any assembly of the jamat, or acts in any
other manner prejudicial to the dignity or prestige of the jamat;
(e) disregards any order made by a Council in accordance with this
Constitution or any Rules and Regulations or fails to appear without just
cause when requested to appear before a Council or Board; and
(f) commits a breach of this Constitution or any Rules and Regulations or
aids or abets any person to contravene any provision of this Constitution or
any Rules and Regulations.
14.2 Proceedings for disciplinary action against any Ismaili shall be
commenced upon a complaint lodged by:
(a) any member of a Council authorised in that behalf by the Council; or
(b) any Ismaili.
A complaint shall be lodged with such Regional Conciliation and Arbitration
Board or, if none, then such National Conciliation and Arbitration Board
within whose jurisdiction the respondent is resident at the time of the
14.3 If the matters alleged in the complaint are established, the Regional
Conciliation and Arbitration Board or the National Conciliation and
Arbitration Board may make one or more of the following orders:
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(a) order the offender to be conditionally or absolutely discharged;
(b) order the offender to observe or perform any religious rites;
(c) order the offender to pay compensation to any aggrieved party;
(d) order temporary exclusion of the offender from jamatkhana for such
period as the Conciliation and Arbitration Board may deter-mine;
(e) order that any Order made by it under this Article be announced by the
National Council in the jamatkhanas under its jurisdiction; and
(f) recommend to the National Council to order the offender to be expelled
from the Jamat.
14.4 Before pronouncing an order of expulsion, the National Council shall
cause to be served upon the offender a notice requiring him to appear
before the Council, if he wishes to make any representations in mitigation.
14.5 The National Council shall hear the offender if he appears, and shall
(a) pronounce the order of expulsion;
(b) discharge the offender absolutely or conditionally; or
(c) substitute one or more of the other orders set out in Article 14.3.
14.6 The order of expulsion shall have binding effect worldwide and shall
be announced in all jamatkhanas under the jurisdiction of the National
Council, provided however, the National Council may for good and
sufficient reason decide that it would be useful or desirable also to
announce the said order in jamatkhanas in other parts of the world.
14.7 The order of expulsion shall be announced:
(a) immediately after the time limited for giving of notice of intention to
present an appeal has expired; or
(b) if such a notice has been presented, immediately after the decision on
appeal, if rejected.
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14.8 If a person who has been expelled dies without having embraced any
other religion, his burial and funeral rites may be performed in accordance
with the Ismaili Tariqah.
14.9 If a person who has been expelled wishes to be re-admitted to the
jamat, he shall make a written application to the National Council within
whose jurisdiction he resides. The Council may require him to appear
before it, and may refuse or grant the application subject to such terms and
conditions as it may deem necessary.
Posted: Mon Jan 21, 2019 12:22 am Post subject: Re: CAB - Ismaili Conciliation and arbitration Boards
"Secondly that in the case of disciplinary action by any Ismaili which can be against any Ismaili for example for excommunication. An Ismaili can be excommunicated. However His or Her Bayah, is between the Imam and him or her. That can only be broken by either an individual revoking the Bayah, or the Imam personally excommunicating him or her, which has not happened in the history of Ismailism.[/quote]
The Rules and regulations confirm
"From the time of the Imamat of Hazrat Mawlana Ali ("AS'j, it has been a tradition of the Ismaili Muslims that the constitutions "given to them" by their Imams are in conformity with the Islamic concepts of unity, brotherhood, justice, tolerance and goodwill. The authority of the Imam in the Ismaili Tariqah is testified by Bavah of the murid to the
However the rules and regulation do not say that the any one excommunicated can appeal and petition Hazar Imam nor that NCAB and ICAB must notify Imam of every excommunication. We know the constitution and Farmans are above these regulations and Imam can change the constitution by giving a Farman.
Posted: Sat Feb 09, 2019 4:02 pm Post subject: Rules procedures and process of an application & hearing
The following directions were issued by NCAB Canada following the Aga Khan copyright lawsuit filed in April 2010 and applications for NCAB and ICAB to intervene and for disciplinary action.
These directions and processes are under the 1986 constitution which was repealed in the 1998 constitution.
These directions, process and procedures were not followed by NCAB and ICAB in the cases filed against Shafik Sachedina, Azim Lakhani, M Keshavjee, not A Dharamsey (who did not submit any evidence, except making baseless allegations)
Issued by NCAB Canada on 20 May 2014
Disciplinary Action DA
The making of a disciplinary complaint under the Jsmaili Constitution is a serious matter. A person making such a complaint should be prepared to set out all the allegations of material facts to establish a breach of Article 14.1 of the Ismaili Constitution.
The procedure to be followed by the Board is in the form of an inquiry into the Complaint in accordance with the Ismaili Constitution, Rules for Disciplinary Action and adherence to the rules and principles of natural justice and good conscience. Subject to foregoing considerations, the procedure to be followed shall be within the discretion of the Board hearing the Complaint, and the Board shall not be bound by the strict rules of evidence.
The principles of natural justice require at the minimum, the right of the Respondents to notice and particulars of the allegations against them, the right of the Respondents to be given an
opportunity to respond to the allegations; the right of the Parties to challenge evidence from other Parties and present evidence to support their position, and the right of the Parties to legal
representation. The Board will give a reasonable opportunity to each Party at the hearing to make an opening statement, to give evidence, produce witnesses and documents, to ask questions to
witnesses produced by the other Party, and to make a closing statement before any decision is made by the Board. Relevant excerpts for the Ismaili Constitution, 1986 ("lsmaili Constitution"), and a copy of the Rules for Disciplinary Action, dated February 24, 2010 ("Rules"i have been previously provided for your reference. The inquiry into the Complaint shall be undertaken as set out in this
Conduct of Proceedings
The Board shall ensure that the DA takes place with due expedition. It may, at the request of a Party or on its own motion, extend in exceptional cases a period of time fixed by these Directions, by itself or agreed to by the Parties. The place of hearing shall be in Toronto, in the Province of Ontario.
The language of the arbitration shall be the English language, subject to the authority of the Board to determine otherwise, having regard to any observations of the Parties and the
circumstances of the hearing. The Board may order that any documents submitted in languages other than the language of hearing be accompanied by a translation in whole or in part into the
Pursuant to Articles 3.1 and 3.2 of the Ismaili Constitution, the lsmai/i Constitution shall apply to Ismailis worldwide, subject only to the overriding effect of any applicable laws of the land of abode of any Ismaili to the extent of the inconsistency. Accordingly, if the jurisdiction of the Board is established pursuant to Articles 14.1 and 14.2 of the Jsmai/i Constitution, and subject to the Board's discretionary authority, the Board will apply the law of the Province of Ontario and Canada as applicable to proceedings as applicable and necessary as determined by the Board.
Notices, Service and Delivery
Any notice or other communication that may or is required to be given during the DA shall be in writing and shall be delivered by expedited postal or courier service, or transmitted by telefax, email
or other means of telecommunication that provide a record thereof. A Party's last known address for delivery shall be a valid address for the purpose of any notice or other communication in the absence of any notification of a change by that Party.
The Board shall advise each party to confirm their addresses and mode of communication of correspondence with the Board. Each party shall be directed to deliver their correspondence to
the Board and to each other party in the DA at the same time. Each Party receiving correspondence from any other party, including the Board, shall confirm receipt of the communication as directed by the Board.
Any and all communication to the Board shall be addressed to the Chairman at the address and mode of communication specified in this Direction, or as may be amended in the future in writing.
Summons and Production of Documents
Summons: For the purpose of conducting an inquiry of the matters alleged in the Complaint, the Board has the power to summon persons to attend and give evidence and to order production of
relevant documents (Rule 7.1 ). If the Parties require the Board to exercise its powers in this regard, they are required to advise the Board when filing their Pleadings or at the earliest practicable opportunity in writing.
List of Documents: Each Party shall prepare a list of all documents referred to and relied upon by that Party in their pleading. Each party shall also identify any document that is material and relevant to the issues in the DA that is in their possession or control. The list shall enumerate th documents in a logical order, and shall specify the location of any document that is not in the possession of that Party. Where legal privilege is claimed over a document for production, the Party claiming the privilege shall identity the claim in its List of Documents with a statement of the grounds of the privilege. Each Party is obligated to supplement and keep current its List of Documents during the course of the DA. Order for Production of Documents: Any Party requesting an order for production of documents shall make an application in writing to the Chairman. The requesting Party shall identify the document to be produced, the name and contact information of the person in possession of the document, the location of the document, the relevance and materiality of the document to the issues in the DA.
The Board may order a Party to the DA, or any other person to produce for inspection any documents specified by that requesting Party, provided that the Board is satisfied that, among other things:
The document is relevant and material to the proceeding;
The document is not privileged from production; and
The Board is otherwise authorised to make any such an order for production.
The principle of proportionality must be kept in mind when making requests for production of relevant and material documents. The term "documents" is a broad term, which includes audio recordings, video recordings, film, photography, charts, graphs, maps, plans, surveys, books of account, computer diskettes and any other devices on which information is recorded and stored.
A document of a Party is "relevant" if the Party intends to rely on it or if the document tends to adversely affect the Party's case or to support another Party's case. With respect to "material documents", this means "documents required to prove or disprove a material fact" rather than what relates to every matter in question. Materiality requires a consideration of the material issues in dispute to determine if evidence will advance the Party's case.
Examinations for Discovery:
There will not be any oral examinations for discovery of any Parties to the DA.
Pre-Trial Examination of Witnesses: Absent compelling and extenuating circumstances, there will not be any pre-hearing examinations of witnesses.
Summons to Persons
Any Party wishing to request that the Board exercise its authority to summon a person to attend and give evidence at the hearing shall: specify the name of the witness, the contact information of the witness, the general nature of the evidence and its relevance to the issues in question in the DA before the Board in the form of a "Will Say Statement". The Board may require the requesting Party to pay such conduct amounts as may be necessary for the witness to attend at the hearing, and fulfil any other specified conditions.
For the purposes of this Direction and the DA, "contact information" includes the address(es) of the person, the applicable telephone number(s) and email address(es).
Pursuant to Rule 6, any Party may, with the prior request of the Board, request to be represented by any person or legal representative. Any such representative shall undertake in writing to abide with the conditions stated in Rule 6.1 (b).
Where a party wishes to be represented by a non-Ismaili or an Ismaili, the Board may grant such a right so long as the representative undertakes in writing to abide by the Rules and respect the authority of the Board in all matters connected with the inquiry.
Costs and Security for Costs
The Board has full discretionary power over the amount and allocation of costs and the determination of by whom they are to be paid in a DA. The Board has the authority to issue an award for legal costs actually and reasonably incurred by any respondent in defence of a complaint where a complaint is withdrawn or dismissed. The Board may also award costs in favour of any successful party for the prosecution or defence of any issue that is unreasonably contested or prolonged during the inquiry.
Where a complaint is lodged by an Ismaili under Article 14.1 (b) of the Ismaili Constitution who does not reside within the jurisdiction of the Board, the respondent may apply for an order for security for costs.
The primary purpose of security for costs is generally to protect a respondent from the likelihood that in the event of its success it will be unable to recover its costs from the complainant. The application of the rationale for security for costs involves a balancing of interests. Thus, while access to the disciplinary process under the Ismaili Constitution by Ismaili members ought not to be unduly constrained, there is an interest in protecting against frivolous or abusive claims by litigants from whom costs may not be recoverable. That balance comes into play however, only when there is reason to believe that there are insufficient assets to satisfy a potential costs order, or where there are other factors to suggest that the recovery of costs will be difficult, or not possible. These are the factors that raise the presumption in favour of security for costs which then have to be balanced with other interests.
The Board may order that security for costs be given in stages, as costs are incurred. The Board may, on application by a respondent, require the complainant to increase the amounts paid for security for costs.
The respondent may waive any entitlement to security for costs.
Where security for costs is ordered by the Board, the complainant shall be directed to provide security for costs in the form satisfactory to CAB within a specified period of time. The
disciplinary action shall be suspended until the complainant complies with any such order.
Pleadings: The term "pleadings" shall refer to the allegations of materials facts in the Complaint and the Statement of Response.
This is the stage where the parties must stake out their positions
and issues for the hearing.
The pleadings shall set out a concise statement of the material facts on which a party relies. It is not necessary to plead the evidence, that is, how the materials facts will be proved at the hearing
at this stage. The pleadings shall, as far as is practicable, be divided into consecutive numbered paragraphs.
No pleading may be amended without leave of the Board.
The Complaint: The Complaint shall contain a comprehensive statement of the material facts of every allegation so as to enable the Respondent to know the nature of the case it has to meet, to
prevent surprise at the hearing, to facilitate the gathering of evidence.
Material facts are facts which must be proved in order to establish the breach of Article 14.1 of the Ismaili Constitution, and includes any facts which the Complainant is entitled or required to prove at the hearing. In particular, the Complainant must specify:
• What was the alleged wrongful conduct or activities;
• When did the wrongful conduct or activities take place;
• Where did the wrongful conduct or activities take place;
• Who performed the wrongful conduct or activities; and
• What provisions of Article 14.1 of the lsmaili Constitution are applicable to the alleged wrongful conduct?
The causal connection between the alleged wrongful conduct and the Respondents must be established on a balance of probabilities by the Complainant. In addition, the Complainant shall specify the order or relief sought in the Complaint.
A copy of every document referred to and relied upon in the Complaint shall be delivered with the Complaint, except as otherwise ordered by the Board.
IN THE PRESENT CASE, THE COMPLAINANT IS DIRECTED TO AMEND THE COMPLAINT TO COMPLY WITH THE ABOVE DIRECTION WITHIN 21 DAYS FROM THE DATE OF DELIVERY OF THIS LETTER. IF THE RESPONDENTS FAIL TO SUBMIT A WRITTEN RESPONSE IN THE
MANNER AND WITHIN THE TIME SPECIFIED HEREIN, THE DISCIPLINARY ACTION MAY PROCEED IN THEIR ABSENCE AND AN ORDER MAY BE MADE AGAINST NON-RESPONSIVE PARTIES.
Rule 3.2 Determination and Article 14.1 of the Jsmaili Constitution
Following the Close of Pleadings, the Board will conduct a summary determination of the Complaint on a preliminary basis pursuant to Rule 3.2.
The Parties shall be directed by the Board and given an opportunity to make submissions within specified time periods at that time. The Respondents shall provide their submission, if any, within 14 days after the Close of Pleadings. The Complainant shall provide their response to the submission from the Respondents, if any, within 14 days from the expiry of the time specified for the Respondents to provide their submissions to the Board.
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