By Aleema Jamal
In 1986, the Aga Khan IV promulgated a global Ismāʿīlī Constitution, which brought the social governance of the Ismāʿīlī community under one umbrella. It was envisioned as a document that could harness the best in individual creativity while creating an ethos of group responsibility. The Ismāʿīlī Constitution provides an example of the way in which minority religious communities can create a unique legal identity, which can operate within a modern nation-state system. In the Ismāʿīlī case, the legal identity crafted through this promulgation of a community Constitution paved the way for the Ismāʿīlī community and Imamate (leadership), arguably, to act as a constrained quasi-state within other states.
The Ismāʿīlī Constitution (hereinafter “Constitution”) holds a unique status as a formal religious document that serves as a legal instrument establishing governance authorities and codifying the structure of Ismāʿīlī community institutions. The Constitution is premised on each individual Ismāʿīlī’s spiritual allegiance to the present, or living, Imām and seeks to accord with the local law of the state in which that individual lives.[1] In other words, the Ismāʿīlī Constitution “lays out clear guidelines about the allegiance of a murid [Ar. murīd, disciple] to the Imam, but warns that this allegiance is ‘distinct from the allegiance of the individual murid to his land of abode.’”[2] In this way, the Ismāʿīlī Constitution provides an example of how minority religious communities can create a unique legal identity that can operate within a modern nation-state system.[3] In the Ismāʿīlī case, I argue that the legal identity crafted through the promulgation of a Constitution paved the way for the Ismāʿīlī community and Imamate (leadership) to act as a quasi-state within a nation state.
First, the Ismāʿīlī Constitution operates by seeking to create a unique legal identity for both the Ismāʿīlī Imamate – the community’s leader – and the community itself. Its scope includes the activities within the prerogative of the Imam’s role. For example, it establishes governance processes and institutions that define religious practices and provides for the Imam to conduct religious interpretation meant for the spiritual advancement of the community. The Constitution also touches on Imamate activities focused on improving the quality of life of the Ismāʿīlī Jamat (global congregation) in the various regions in which its members live.[4] The Constitution was written with the knowledge that there is no distinctly Ismāʿīlī state or territory, and that it thus governs people who also owe allegiance to the states in which they reside. This arrangement is contrary to that of modern state-based constitutions, which operate on the basis of territory and grant absolute sovereignty to a national government to define the laws of the land within an international system.[5] In short, the Ismāʿīlī Constitution’s approach is founded upon the Imām’s conception of his own role in relation to the community and in relation to the legal authority of the nation state:
The role of the Ismaili Imam is a spiritual one; his authority is that of religious interpretation. It is not a political role. I do not govern any land. At the same time, Islam believes fundamentally that the spiritual and material worlds are inextricably connected. Faith does not remove Muslims — or their Imams — from daily, practical matters in family life, in business, in community affairs…. Before 1957, individual Ismaili communities had their own social and economic institutions where that was allowed. There was no intent for them to grow to national prominence, and even less a vision to coordinate their activities across frontiers.[6]
The Ismāʿīlī Constitution lays the foundation for the Ismāʿīlī community to take on a coordinating role across borders by embedding principles of flexibility that recognize the community’s minority status within various nation-states. For instance, a series of Rules and Regulations have been crafted to supplement the Constitution and apply to each region, tailored to the specific contexts of each local community. The Rules and Regulations make the Constitution an adaptable document, outlining a process for revision designed to evolve over time.[7] The Rules and Regulations undergo periodic changes, typically with guidance from the Imam in response to issues raised by the community leadership of a country at times of new appointments or end-of-term reports.[8] At the same time, the global Ismāʿīlī Constitution itself undergoes less frequent changes, the most notable dating back to July 1998 and include the establishment of an Aga Khan Development Network and outline the role of Territorial Councils, among others matters.[9]
The flexible revision process for Ismāʿīlī law reflects the history of the Ismāʿīlī community. When revising the community’s regional Constitutions, “to keep pace with the many changes that the community was expecting over the course of the twentieth century,”[10] the previous Imām of the community (Aga Khan III) noted that:
Ismailism has survived because it has always been fluid. Rigidity is contrary to our whole way of life and outlook. There have really been no cut-and-dried rules… as to method and procedure and not detailed orders about results to be obtained.[11]
This arrangement seeks to create an ethic of cooperation in the Ismāʿīlī community toward the nation states in which its members live. Aga Khan III emphasized that he had always “advise[d] Ismāʿīlīs to be absolutely loyal and devoted subjects of the State – whatever its constitution, monarchical or republican – of which they are citizens.”[12] Thus, although the Ismāʿīlī Constitution gives broad authority to the Imam on issues relating specifically to the Ismāʿīlī community, the Imām in turn gives deference to the national governments in which Ismāʿīlī communities reside.
The flexibility of the Ismāʿīlī Constitution manifests itself specifically in two main ways. First, the Ismāʿīlī Constitution creates special rules for family law. Article 3.2 of the Ismāʿīlī Constitution states that “this Constitution shall apply to Ismāʿīlīs worldwide subject only to the overriding effect of any applicable laws of the land of abode of any Ismāʿīlī to the extent of any inconsistency.”[13] Furthermore, Article 15.4 creates a special carve-out for family and personal law, providing that:
To the extent that the territory of domicile or residence of any Ismaili does not recognise and apply or allow the application of the personal law of Ismailis, he shall be governed in that territory by such personal law as is applicable to him under the law of that territory.[14]
This provision recognizes that the activities of the state may conflict or overlap with the activities of the Ismāʿīlī Community, and seeks to create conflict-of-law rules. Kenya is one example of a country that has demonstrated both the recognition and lack thereof, of Ismāʿīlī personal law at different points in time.[15] The Ismāʿīlī Constitution places the state’s interpretation first and therefore subservient to the nation-state—a posture of subservience that seeks to create compatibility of Ismāʿīlī law and practice with laws of the nation-state.
Second, the Ismāʿīlī Constitution has facilitated the Ismāʿīlī community living within the laws of a modern nation-state system by establishing parallel, complementary responsibilities and processes to the nation-state itself. Like modern nation-states, the Ismāʿīlī Constitution forms a series of institutions, governance processes, and reporting lines.[16] In addition to delineating the founding principles and values of the community, authority over members of the community is enforced through specific dispute resolution mechanisms and disciplinary action.[17] Furthermore, the Imām has the authority to “enter into treaties, conventions, charters, agreements, accords, protocols and memoranda of understanding with states, governments, international organizations and other authorities.”[18] The Constitution even establishes symbols of statehood, perhaps tied mostly to the personality of the Imām: a flag, unique crest, and the Nashīd al-Imāma (similar to a national anthem).[19] The Ismāʿīlī community thus bears the signs of being a state without a territory.
If a nation-state were to interact with the Imāmate in the way that it does with other states, the Imām and by proxy, the Ismāʿīlī community, is in effect given the legal privileges of statehood. As Daryoush Poor acknowledges, “the institutions are so far reaching and all-encompassing that it would not be difficult to conceive of this virtual state. When I say virtual, I only use it in terms of its being virtual as opposed to a territorial nation-state, otherwise everything else about the institution of the Ismāʿīlī Imamate is very much real.”[20]
Recent formal agreements concluded between the Aga Khan and state governments, coupled with states’ formal recognition of Ismāʿīlī dispute resolution systems, signify an evolution to this effect. The Imamate has signed formal accords, treaties, and other legal instruments with more than 25 countries.[21] For instance, in June of 2015, the Aga Khan signed an agreement between the Republic of Portugal and the Ismāʿīlī Imamate, “for the establishment of a formal Seat of the Ismāʿīlī Imamate in Portugal. The Agreement marks the first such accord in the Imamate’s modern history. It will come into effect once it has been approved by Portugal’s Parliament and ratified by the President of the Portuguese Republic.”[22] This agreement not only establishes a formal location for the diplomatic activities of the Ismāʿīlī Community, but does so in a way that creates congruent power with the State of Portugal; this agreement is of such significance that the State of Portugal must follow its domestic ratification process. In further illustration of the Imamate’s status as a quasi-state, countries such as Kenya, Afghanistan, and Syria have given full diplomatic status to personal representatives of the Ismāʿīlī Imamate.[23] It is clear that the Imamate and its associated institutions, perhaps through the foundational work of the Constitution, contain the credibility required to build the state-equivalent functions that are most relevant to the Ismāʿīlī community.
While the legal layering approach of the Constitution provides deference to the state, a state’s constitution may actually give deference to the Ismāʿīlī Constitution and its embodied views. For example, Kenya, Uganda, Tanzania, and India practice legal pluralism, and therefore allow different religious and social subgroups to practice their own systems of personal law.[24] In this context, the state actually defers to the marriage and divorce laws in the Ismāʿīlī Constitution, and gives the Imam “complete legal sanction” as a legislator.[25] It is unlikely that such deference could be given without the clarity provided through the legal code codified in the Ismāʿīlī Constitution and its Rules and Regulations.
The Ismāʿīlī Constitution, through its flexibility, adaptability, and conflicts of law provisions, thus demonstrates how a minority religious community can form a distinct legal identity still compatible with the modern nation-state. Although the Ismāʿīlī Imamate, and by association, the Ismāʿīlī community possesses some qualities of statehood, the Imamate is still ultimately constrained by the modern nation-state. The Constitution itself creates this constraint through its conflict of law provisions giving deference to state law. A ripe area for further study is whether there are any rules delineated in the Constitution or Rules and Regulations which are not subservient to state rules, and similarly, how the Ismāʿīlī Community responds to state challenges of the principles within its Constitution that are core to its identity as a community.
[1] See Daryoush Mohammad Poor, Authority Without Territory: The Aga Khan Development Network and the Ismaili Imamate 171 (2014).
[2] See Mohammad N. Miraly, Faith and World: Contemporary Ismaili Social and Political Thought 185 (2016).
[3] See Miraly, Faith and World, at 170-171.
[4] See generally The Constitution of the Shia Imami Ismaili Muslims [Ismāʿīlī Constitution], Jul. 11, 1998.
[5] See, e.g., U.N. Charter art. 2, ¶ 1; Military and Paramilitary Activities in and against Nicaragua (Nicar. v. U.S.), 1986 I.C.J. 14, ¶ 212 (June 27, 1986).
[6] His Highness Prince Karim Aga Khan IV, Address of His Highness the Aga Khan to Both Houses of the Parliament of Canada in the House of Commons (Feb. 27, 2014), available at http://www.akdn.org/speech/his-highness-aga-khan/address-both-houses-parliament-canada-house-commons-chamber.
[7] Interview with Namaan Adra, Executive Officer, His Highness Shia Imami Ismaili Council for the Prairies (Mar. 13, 2017).
[8] Email from Mahmood Ahmed, Coordinator of the Ismaili Constitutional Committee, Apr. 7, 2017 (on file with author).
[9] Email from Mahmood Ahmed, Apr. 7, 2017 (on file with author).
[10] Ali Asani, Improving the Status of Women Through Reforms in Marriage Contract Law: The Experience of the Nizari Ismaili Community, in The Islamic Marriage Contract: Case Studies in Islamic Family Law 288 (Islamic Legal Studies Program, Harvard Law School, 2008).
[11] His Highness the Aga Khan III, The Memoirs of the Aga Khan: World Enough and Time 185 (Cassell and Co., 1954).
[12] Id. at 187.
[13] Ismāʿīlī Constitution, art. 3.2.
[14] Ismāʿīlī Constitution, art. 15.4.
[15] See e.g., Nurani v. Nurani (1982) K.L.R. 1 (C.A.K.) (Kenya); See e.g., TSJ v. SHSR (2014) K.L.R. 1 (H.C.K.) (Kenya).
[16] See Ismāʿīlī Constitution, arts. 4-13.
[17] See Ismāʿīlī Constitution, arts. 1, 12-14.
[18] Ismāʿīlī Constitution, art. 16.1(C).
[19] Ismāʿīlī Constitution, art. 16.2.
[20] Poor, Authority Without Territory, at 215.
[21] Id. at 195-96.
[22] The Aga Khan Development Network, Historic Agreement Establishes Global Seat of Ismaili Imamat in Portugal (Jun. 3, 2015), http://www.akdn.org/press-release/historic-agreement-establishes-global-seat-of-ismaili-imamat-portugal.
[23] Poor, Authority Without Territory, at 196.
[24] Asani, Improving the Status of Women, at 293; See also Ali Asani, The Impact of Modernization On the Marriage Rites of the Khojah Ismailis of East Africa, 18 J. of Turkish Studies 17, 24 (1994).
[25] Asani, Improving the Status of Women, at 293.