The word constitution is derived from the Latin constituere means an action of decreeing or ordaining. According to The Oxford English Dictionary (London, 1933, 2:876), "It is a decree, ordinance, law, regulation usually one made by a superior authority, civil or ecclesiastical." In the broad sense, a Constitution is a body of rules governing the affairs of an organized group.
It is within the core of the Ismaili doctrine that the Imam guides his followers according to the developing conditions of time and society. This outlook is what made Ismailism fluid. Earlier, the traditional council, known as justi dealt the community affairs on good faith. Imam Sultan Muhammad Shah formed The First Ismailia Committee in 1900 in Karachi with a set of rules and abolished the working of the justi. The founder members of the Committee were Varas Ibrahim, Varas Basaria, Mukhi Muhammad Ali, Ali Ghulmani, Kamadia Rahmatullah Lutf Ali, Kamadia Talab, Mukhi Hashuani, Mukhi Ramzan, Ali Muhammad, Asani, Fakir Muhammad, Wali Muhammad and Mukhi Muhammad Ladha Sajan. Finally, the first Ismaili Council in Bombay, comprised of 20 members, came into existence on April 9, 1906 with Varas Ibrahim Muhammad Rawjee (1862-1911) as its first President and Alijah Ahmed Devji (1859-1925) as a Hon. Secretary. Varas Ibrahim Muhammad Rawjee ordained the Constitution of the Ismaili Council on March 4, 1910, whose draft was a splendid testimonial to his scholarly mind. Thus, the Constitutions for different areas of India with certain variations were prepared. It was confined to the workings of the Ismaili Councils in different areas, but was a milestone, which sought to lay the foundation of the progress of the community. The Ismaili Council was a peculiar mixture of a semi-judicial and semi-arbitration body. It was a judicial forum because its aim was to do justice. It was a arbitration board in the sense that it tried to give quick justice without stress of techanicalities and formalities.
In Africa, it would appears from a Civil Case no, 89 of 1894 in Zanzibar, vide Zanzibar Protectorate Law Reports (London, 1919, p. 46) by William Murison and S.S. Abrahams that adjudication of communual disputes rested in the hands of a traditional council (justi) of elders, who were considered authoritative as to the Ismaili customs. Imam Sultan Muhammad Shah was reported the need of the community rules during his first East African visit in 1899. On his second visit to East Africa, the Imam issued the first Ismaili Constitution on September 9, 1905 - a set of written rules and regulations, known as The Rules of the Shi'a Imamia Councils of the Continent of Africa. The Imam said, "I have framed rules and regulations for you, which are the token of my memory. If you follow it, you will acquire great benefit. I entrusted you these rules and regulations behind me as if my tongue, so follow it. If you violate the rules, it will mean you have cut my tongue" (Zanzibar, 17/9/1905). This Constitution foresaw a new administrative organization in the form of a hierarchy of councils; it also established rules for governing the personal relation in the community, especially with respect to marriage, divorce and inheritance. With the Constitution of 1905, the Ismaili community had proved itself capable of providing stability in the midst of an ever-changing and progressive community. Around the same time, the first Ismaili Council was founded in Zanzibar. This Constitution was not published in printed form until 1922 when it appeared in English and Gujrati, then in Germany. By the early 1920s, new centers of economic activity had appeared on mainland East Africa, where the Ismailis had gradually moved. Having lost its importance as the main commercial center of the region, Zanzibar had also ceased to be the seat of the Ismaili community. It was in recognition of these changes, the Imam revised the first Constitution in 1914, 1925 and 1937, instituting separate central councils in the three territories of Tanganyika, Kenya and Uganda. The original council in Zanzibar continued for some time to co-ordinate the activities of the Territorial Councils in matters of common interest. These central functions were later delegated to a Supreme Council, separate from the council in Zanzibar. During the final three decades of the Imam's Imamate, the hierarchical system of councils, with its subsidiary bodies, was further developed on the basis of periodical revisions of the Constitution for the East African jamats; the revision occurring in 1937 with the formation of the Executive Council for Africa, Ismailia Supreme Council for Africa, Provincial and Local Councils. It was further revised in 1946 under the title of Constitution, Rules and Regulations of His Highness the Aga Khan Ismailia Councils for Africa. The Constitution was again revised in 1954 after the Imam had called a special conference of the East African councilors at Evian in July, 1952 for making necessary amendments in the existing Constitution of the councils. It however remained in force until 1962 when they all were revoked and replaced by The Constitution of the Shi'a Imami Ismailis in Africa. This Constitution was ordained on the 26th of June, 1962 and came into operation on the 11th of July of the same year. It remained operative for 25 years. Accordingly, the administrative hierarchy was headed, after the Imam, by a Supreme Council for Africa, an international body that directed, supervised and co-ordinated the activities of the three Territorial Councils. The Supreme Council, with its changing headquarters in Nairobi and other major cities of East Africa, was also empowered to act as judicial tribunal of the second degree, the highest judicial authority being the Imam himself. The 1962 Constitution also established an Executive Council for Africa with the main function of allocating funds to various organizations. It was once again amended in 1974 to meet the new demands in the society. The constitutional revision was more than anything else an attempt to coordinate local interests as the Ismaili society became more complex.
When India was partitioned in 1947, a separate but still similar Constitution and council system was developed for Pakistan. On March 21, 1961, the Ismailia Federal Council for Pakistan came into existence. Another Constitution was put into effect for the Ismailis of Pakistan on July 11, 1962.. On the basis of the Constitution of 1962 for Pakistan, each Supreme Council was responsible for supervising the activities of some of the 23 Divisional. District and Local Councils throughout the country.
In India, the Federal Council, located at Bombay directed the affairs of four Regional Council for Maharashtra, Gujrat, southern India and eastern India. At the bottom of the hierarchy, there were 28 Local Councils in India, for south Bombay, north Bombay, Jamnagar, Kutchh, Surat, Hyderabad, and so forth. On March 21, 1968, a third Constitution was promulgated in India. During his visit to India, the Imam said on February 23, 1969 in Bombay that, "Last year a new Constitution was introduced for my jamat of India. Many of you may not know that the earlier Constitution was dated 1946, that is for 22 years, our jamat implemented the same Constitution. It was my view, and it is my view, that circumstances have changed sufficiently so that a new Constitution should be introduced. If I have seen fit to introduce a new Constitution in 1968, this means that I may see fit to introduce a new Constitution in 1970, or 72, or 74. This means that no Constitution for our jamat is a firm, solid, immovable document. It is a document, which is created to assist the jamat to administer its affairs satisfactorily and in keeping with the times. Thus, I wish my spiritual children to understand that if through the implementation of this Constitution, it is found that certain matters could be better pharsed, could be amended, could be improved, the Constitution will be continuously amended. The Constitution of our jamat here in India, like in East Africa, like in Pakistan, is a living document and where it is not in keeping with the tradition of the jamat, or in keeping with what the times require, amendment will be introduced."
The Constitutions of East Africa, Pakistan and India were alike in spirit, but differed in several points according to the different circumstances prevalent in these countries. This was explained by the Present Imam upon his sanctioning The Constitution of the Councils and Jamats of Shi'a Imami Ismaili Muslims of Pakistan that, "Look to the spirit and not the letter of the Constitution."
On July 11, 1977, a Syrian delegation led by President al-Haek of the Syrian Council visited France. The Imam gave them a special message for the Syrian jamat, in which the Imam said, "On the occasion of Imamate Day, I will be introducing for formal application from now onwards, a new Constitution for my jamat in Syria. I believe this Constitution will assist in improving the administration of my jamat."
The New Constitution of 1986
The Ismailis are spread in all over the world in different culture and society, and a need arose to ordain one universal Constitution applicable in common for all the Ismailis to improve the organizational structure of the institutions. In March, 1964, the Imam formed a Constitution Review Committee (CRC) under Wazir Anil Ishani (Convenor) with the members, Wazir Mohammad Jaffar, Wazir Ashiqali Hussain, Wazir Abdul Mohammad Furniturewala, Wazir Amirali Rahimtoola, Wazir Zaher Ahmed, Wazir Amir Bhatia, Wazir Zool Nimji and Huzur Mukhi Mahmood Ahmed. The CRC started its working in April, 1984 with a number of field visits in different countries. It submitted reports of its working regularly to the Imam after firs discussing them with the jamati leaders and group of the Imam's secretariat at Aiglemont. CRC had ten meetings with the Imam, culminating on December 13, 1986, the 50th Salgirah of the Imam with the ordaining ceremony at Merimont, Imam's secretariat in Geneva. The members of the Imam's family, including Begum Salimah, Princess Tajudawla, Mata Salamat, Prince Amyn Muhammad and Princess Zahra were present in Geneva during this historical ceremony. The members of CRC and those members from the secretariat at Aiglemont also participated. At 11.00 a.m., the Imam ordained, signed and sealed The Constitution of the Shi'a Imami Ismaili Muslims.
Before the ceremony, the Imam sent his message to the jamat on December 10, 1986, and said, "On the 13th December, I will ordain a new Ismaili Constitution, which will be known as The Constitution of the Shi'a Imami Ismaili Muslims. The Ismaili Constitution will be applicable throughout the world, linking all members of my jamat wherever they are to the Imamate. Islam is a community of faith and throughout the 1400 years of our history, our jamat has lived by the rules and practice of our tariqah as a frontierless brotherhood of men and women. The permanent bond, linking the murid to the Imam and subsisting irrespective of the geographical location of the individual murid, has been and will continue to remain the cornerstone of our jamat's identity. In our tariqah, the Imam of the Time has always concerned himself with the spiritual advancement as well as with the improvement of the quality of life of the jamat. In this century, in accordance with the needs of the time, my grandfather gave during his Imamate, and I have given in the past 30 years, Constitutions to the jamat in different areas of the world. The ordaining of this Constitution has been preceded by detailed examination of the existing separate Constitutions of the jamat, all of which will be superseded, when the Rules and Regulations applicable to the respective countries come into force. I have recognized that in view of the change in the demography of the jamat, it is necessary to establish new councils and for the same reason to discontinue others. This has been done. In providing the new Constitutional structure, I have also taken account of recent significant developments, such as the increasingly international dimension of the jamat's settlement and especially my aspiration for the jamat to play an even more active part than in the past in the mainstream of life in the societies in which it lives." The Imam also said, "It is my belief that the Ismaili Constitution will provide a strong institutional and organizational framework through which my jamat will be able to contribute to the harmonies development of the ummah and of the societies in which the jamat lives." Besides, the Imam said, "The Ismaili Constitution recognizes and addresses many of the jamat's present and future needs, but it is to be expected that some adjustment will need to be made in the practical application of the Constitution to meet local circumstances. These adjustment will be made on a case by case basis, in the rules and regulations which will be provided in respect of each country. I am confident that the Ismaili Constitution will give stronger integrated identity to my jamat worldwide, and that in abiding by it in letter and spirit, the jamat will achieve greater peace, unity, happiness, security and well-being."
The New Constitution is a single unified paramount constitution, which applies to all Ismailis wherever domiciled or resident and superseded constitutions applicable to Ismailis in different countries. The jamat in individual countries, however, have their own rules and regulations by virtue of the Constitution, which makes detailed provisions for their governance and their institutions.
The Preamble to the new Constitution affirms all the fundamental Islamic beliefs and then clearly focuses on the doctrine of the Imamate. It sets out the essence of the Ismaili beliefs as Shi'a Imami Ismaili Muslims who affirm the Shahadah and that the Prophet Muhammad (peace be on him) is the last and final Prophet of God, and that Islam, as revealed in the Koran, is the final message of God to mankind, and is universal and eternal. The Preamble states the authority of the Imam in the Ismaili tariqah and that allegiance to the Imam unites all Ismaili Muslims worldwide in their loyalty, devotion and obedience to the Imam within the Islamic concept of universal brotherhood. It further states that from the time of Ali bin Abu Talib, the Imams have given rules of conduct and constitutions in conformity with the Islamic concepts of unity, brotherhood, justice, tolerance and goodwill.
Posted: Mon Nov 05, 2012 6:19 am Post subject: Wilferd Madelung: The Sources of Ismaili Law
Cross posted by Admin from Books Forum.
The Sources of Ismaili Law
Professor Wilferd Madelung
This is an edited version of an article that originally appeared in the Journal of Near Eastern Studies 35 No.1, University of Chicago Press, 1976, pp 29-40.
This paper was delivered at the Congress of the American Oriental Society in Santa Barbara in March 1974. In it, Wilferd Madelung presents his exhaustive research into the origins and sources of a monumental document that was considered lost to history; the Kitab al-idah, Qadi al-Nu‘man's first legal work - a vast collection of legal traditions transmitted from the family of the Prophet (ahl al-bayt), indicating their points of consensus (ijma‘) and conflict (ikhtilaf) and elucidating what was firmly established doctrine in them with evidence and proofs. This article provides an invaluable resource for academics and students of Islamic studies and related fields.
Friday, 27 July 2012
For Ismailis, legal justice is non-adversarial
In a recent blog posting (July 16) I argued that there are many kinds of legal disputes where courts ought to be seen as a “valued, but last forum.” This is not, in my view, just because courts are complex, slow, expensive and inefficient institutions, but because some legal disputes are better resolved by other means.
My view is that it is past time for us to refer to these other pathways to legal justice as “alternate” dispute resolution; rather, they need to be seen as belonging, with the courts, in the mainstream. I say this not to undermine the courts as fundamental institutions, but rather to enlarge and enrich our conception of legal justice to embrace a broader set of processes and institutions.
Such processes and institutions already exist. Arbitration is the preferred dispute resolution mechanism for almost all transnational commercial litigation. ( It is interesting that while judges are quick to remind us of the importance of adjudicative independence in our justice system, litigants in commercial disputes would prefer to choose and pay their own adjudicators, and yet arbitration is nothing if not a form of rent-a-judge, to put it crudely.) Mediation is increasingly preferred for relationship-based disputes, where there is an issue that needs to be resolved, but the parties will have to continue to work or live with each afterwards. Other examples could be given.
In this regard, I was recently provided with a copy of a remarkable witness statement filed in a proceeding in the Supreme Court of the United Kingdom. The witness is Noordin Nanji, of Vancouver. He makes the statement on behalf of His Highness Prince Aga Khan Shia Imami Ismaili International Conciliation and Arbitration Board (“ICAB”), of which he is Chairman. The statement explains that ICAB is “part of a global institutional framework that provides a dispute resolution system for members of the Shia Imami Ismaili Muslim community”, usually referred to as the “Ismailis”, on a national and international level.
The ICAB System seeks to encourage the amicable resolution of conflict through impartial mediation, conciliation and arbitration on a voluntary basis, i.e. the parties must be willing to seek an amicable resolution of their dispute. While the dispute resolution process followed by the CAB System respects the religious principles and values of the community, it is always within the confines of the applicable local law.
Here follow some extracts from the witness statement to illustrate the focus on non-adversarial dispute resolution. I do not offer these because I think our legal system should adopt Ismaili dispute resolution processes, but simply to illustrate that the adversarial system is not universally regarded as the best way to solve legal disputes.
3.2 The 1986 [Ismaili] Constitution established a dispute resolution system whereby Conciliation and Arbitration Boards would operate at both the national and international level. The system operates in 17 jurisdictions around the world. In some countries, notably India and Kenya, the decisions of such Boards, particularly in matrimonial and personal law matters, though reviewable by the courts, are recognised by the law.
3.7 The primary objective of the CAB System is to assist Ismailis to resolve disputes in an equitable, speedy, confidential, cost effective, amicable and constructive manner and in an environment that is culturally sensitive. Processes are designed to operate in an equitable manner. Moreover, the Boards, whether arbitrating or mediating, are required to operate in accordance with applicable local laws. In arbitrating any dispute, a panel appointed by one of the Boards will apply the national laws applicable to the relevant dispute, not any "religious" law.
5.2 Once a dispute arises, it is the practice of the Boards first to attempt to resolve any dispute by way of mediation or conciliation rather than arbitration, even in cases where the parties have referred to arbitration only in their agreement. Rules of Conciliation have been adopted formally by the Boards for disputes resolved by way of conciliation.
5.5 The experience of the Boards is that more than 99% of disputes referred to the Boards are dealt with by way of mediation or conciliation. It is only a handful of cases that are dealt with by way of arbitration.
5.6 It is strongly felt within the community that one of the reasons for this high incidence of mediation and conciliation is the fact that the parties, and indeed the members of the community, have confidence that their rights will not be compromised and that a fair and equitable resolution of their dispute will be achieved through mediation or conciliation by the Boards.
6.6 Muslim ethics, custom and practice strongly encourage the amicable settlement of disputes that may arise in the community between believers. It is recommended that, when a conflict arises between members in the community, attempts should be made to find a peaceful solution either through mediation or impartial conciliation or arbitration between willing parties. Voluntary and impartial conciliation and arbitration for the amicable resolution of disputes is a deeply embedded practice in the Ismaili community going back 14 centuries ... It is from that long tradition that the present CAB System has emerged.
6.8 In essence, it is believed in the Ismaili community, as in the broader Muslim community, that when a problem occurs between brothers, the people around should intervene to solve it, and they should pursue all means in order to make peace between them. That brothers in religion should be willing to forgive each other and to reconcile their disagreements is testified to in a large number of Prophetic traditions, both the Sunni and the Shia, as well as in the traditions of the Shia Imams. For instance, Imam Ali, the first Shia Imam, has said:
"Do not separate yourself from your brother unless you have exhausted every approach in trying to put things right with him. ... Do not be harsh with your brother out of suspicion, and do not separate from him without first having tried to reason with him... Seek reconciliation with your brother, even if he throws dust at you." (The Sayings and Wisdom of Hazrat Ali, published in England, 1994)
6.12 In sum, therefore, the broader Muslim tradition, and specifically the Shia Ismaili Muslim tradition, defines and fosters an ethos for amicable dispute resolution that, unlike the "secular" litigation culture, is non-adversarial. The notion of the winner and the vanquished, where the winner may take all, is completely alien to the teachings of the Ismaili Imams.
Geoff Plant at 15:31
Unknown6 September 2012 09:42
Geoff, this is not a comment on this posting; I'm writing to congratulate you on your appointment as spokesperson for the BC government before the pipeline enquiry. In that regard, I'm writing to urge you to consider not just the spill dangers and immediate economic costs and benefits, but the longer term and wider environmental costs to the world.
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