Ismaili.NET - Heritage F.I.E.L.D.

With the imposition of the New Constitution of the Shi'a Ismaili Muslims in 1986, the Conciliation and Arbitration Board (CAB) came into existence for the first time in the Ismaili world. Previously, the Ismaili Councils executed the judicial activities in the community. The judicial activities of the Council thenceforward consigned to the newly formed Conciliation and Arbitration Board.

The Arabic word for arbitration appears in the Koran several times. The Arabic analogy used only in the singular is hukm (pl. hukkam), a verbal noun of hakama. Its root h-k-m, which is said to be non-Arabic origin, has a number of meanings. The principal meanings of the simple verbal form hakama are to govern, to restrain, to pass judgment and to be sage. Thus, hakim means he who decides, the authority, governor, judge or wise, and hukm means order, rule, sentence, judgment or wisdom (5:46-9, 6:56, 12:39, 18:25, 26:82). Hakam means arbiter appears twice in the Koran. One verse enjoins the appointment of an arbiter in the case of marital disputes: "If you fear a split between a man and his wife, send for an arbiter from his family and an arbiter from her family. If both want to be reconciled, God will adjust things between them. For God has full knowledge, and is acquainted with all things" (4:35), and "Shall I seek an arbiter other than God, when He it is Who has sent you the book, explained in detail" (6:114).

The appointment of arbiters, like a number of other practices of the Islamic community, is of pre-Islamic origin. In Mecca, it was customary for the parties in a dispute to select their own arbiter, usually a man noted for his tact, wisdom and knowledge of ancestral custom. Very often the disputing parties referred their case to a soothsayer (kahin), a practice the Koran specifically denounces (52:29, 69:42). Ultimately, the Koran stresses that final judgment belongs to God alone (6:57, 62; 12:40), and the Arbiter (al-hakam) is one of His attributes. He is the Best of judges (khayr al-hakimin) (7:87, 10:109, 12:80), and the Most Just of judges (ahkam al-hakimin) (11:45, 95:8). The Koran is also called the Arabic code/judgment (hukm arabi) (13:37). It is He who conferred the authority to make decision on his prophets (21:78-9). As long as the Prophet was alive, he was naturally regarded as the ideal person to settle disputes and was elevated to the position of judge supreme: "We have sent down to you the book with the truth in order that you may judge (li-tahkuma) between the people on the basis of what God has shown you" (4:105). The Prophet is commanded that if Jews come to him seeking arbitration, he should accept: "Judge (fahkum) between them fairly" (5:42).

The judicial decision (qada) is generally considered as part of judgment (hukm), since whenever someone gives verdict or a decree, the judgment is invariably passed. But in the Koran, the verb hakama and its cognates usually relate to the Prophet's judicial activities (4:105), while the verb qada, from which the word for judge (qadi) is derived, mainly refers not to the ruling of a judge, but to a sovereign ordinance of either God or the Prophet. Both verbs occur simultaneously in 4:65: "But no, by your Lord, they can have no real faith until they make you a judge (yuhakkimuka) in all disputes between them and thereafter find no resistance within their souls of what you decide (qadayta), but accept them with total conviction." The first verb yuhakkimuka refers to the arbitrating aspect of the Prophet's activity, while the second qadayta emphasizes the authoritative character of his decision, raising it to a level of belief.

Tabari in his Tafsir includes a reference to peoples' sincerity of belief as dependent upon whether God or the Prophet were appointed as judges in their affairs and their not feeling any uneasiness about the ensuing decisions. On the other hand, al-Qummi (d. 328/939) designates yuhakkimuka as referring to Ali bin Abu Talib, and the second verb, qadayta to the Prophet's decision. The term din is another expression for judging in the Koran. The Arabic philologists often derive din from dana lahu meaning to submit to the obligations imposed by God, thus din is a term in the sense of obedience. The word al-dayyan thus is one of God's attributes, which people also applied to Ali bin Abu Talib as the sage of the community (Lisan al-Arab, Beirut, 1956, p. 350).

There are many Koranic verses enjoying man to justice: "Surely, God enjoins the doing of justice and the doing of good" (16:90), "O you who believe! Be upright for God, bearers of witness with justice, and let not hatred of people incite you not to act equitably; act equitably, that is nearer to piety, and be careful of (your duty to) God; surely God is Aware of what you do" (5:8), "Surely God commands you to make over trusts to their owners and that, when you judge between people, you judge with justice" (4:58), "He said: As to him who is unjust, we will chastise him, then shall he be returned to his Lord, and He will chastise him with an exemplary chastisement" (18:87), "And God does not love the unjust" (3:57), and "And God sets forth a parable of two men; one of them is dumb, not able to do anything, and he is a burden to his master; wherever he sends him, he brings no good; can he be held equal with him who enjoins what is just, and he (himself) is on the right path" (16:76).

The new Ismaili Constitution has established a major new organization – the Conciliation and Arbitration Board. It has also a National and Regional Boards, which seek to resolve disputes between members of the jamat with fairness, speed, confidentiality and without excessive cost, so that, in accordance with the tradition of the jamat, disputes are resolved by mediation of conciliation and arbitration within the jamat itself. If there are any appeals from the National Board, they will lie to the International Conciliation and Arbitration Board (ICAB), whose reports are submitted to the Imam. The essential purpose of establishment of the CAB system is set out clearly in the Present Imam’s message of July 7, 1987, while appointing the member of the first ICAB, wherein he stated: “Since many a decade it is an admirable tradition of the jamat that as far as possible, when differences of opinion or disputes arise between members, they should be resolved by a process of mediation, conciliation and arbitration within the jamat itself. This is clearly preferable than to enter into the unhappy and costly process of official and often public litigation. To strengthen and enhance our tradition, provision has been made under the Ismaili Constitution that henceforth there should be an International Conciliation and Arbitration Board. This body will hear appeals from the National Conciliation and Arbitration Boards, and will, it is hoped, also assist in the resolution of problems that have an International dimension. The Board, Insha’Allah, will act with fairness, speed and confidentiality and without excessive cost.”