BEGINNINGS OF MUSLIM CIVIL JUSTICE SYSTEM
Muslim minorities living in non-Muslim countries like Canada are like wandering Bedouins to whom Shariat applies regardless of where they live. Although they are free to live according to the Divine Law, and practice their faith unhindered in their homes and masjids they have practically no say in the making of the laws of the land, and governmental institutions do not cater to their needs.
To grapple with this problem, THE CANADIAN SOCIETY OF MUSLIMS, under
the guidance of Dr. M. Qadeer Baig marhoom initially, and now its president
Mr. Syed Mumtaz Ali, a barrister and solicitor, has been looking into ways
of establishing a Darul-Qada - a judicial tribunal that will, in effect,
operate as a private Islamic Court of Justice without in any way infringing
on any Canadian judicial jurisdictions or legal authorities or violating
any Canadian law. The Society has been working on this subject for near
two decades and has attempted to influence and follow the evolution of
laws and court practices over that period. It has issued a detailed News
Bulletin dated October 2002 summarizing the present status of laws, and
court practices. Copies of the Bulletin can be obtained by writing to P.
O. Box 143, Station P, Toronto, Ontario, Canada, M5S 2S7. The Society also
maintains a web site http://muslimcanada.org
where other details and articles e.g. by Maulana Munzoor Nomani and others,
relating to Muslim minorities can be found.
It is now clear that according to the current Canadian Law, we are free to set up independent Muslim Arbitration Boards (Darul-Qada) to serve those who choose to come to them. The decisions of Darul-Qada once rendered will be binding on the parties, the relevant Rules Of Civil Procedure would be applicable, and the decisions will be enforceable through the normal enforcement agencies of the government in the same way as any order of a Canadian Court.Accordingly, it is proposed that Muslims set up an Institute of Islamic Justice and maintain branches in the form of Darul-Qada to ensure uniformity of practice and certain minimum standards of service. Such services may also be listed on the roster of ADR practitioners maintained by the Courts that are now required to send civil cases to Alternate Dispute Resolution (ADR).
A case may come to Darul-Qada in two ways. The parties may choose to go to Darul-Qada directly without ever going to the Court, or alternatively, by consent of the parties, the matter may come to Darul-Qada after the Court orders that it go to ADR. This was proposed by the Society and published by The Toronto Star on May 30, 1991.
Once the matter comes to Darul-Qada, the parties will be free to choose the law that they wish to rely upon. This model will not exclude application of Canadian laws if the parties wish to do so. It is expected that the Muslim Law and associated Case Law created through the old Anglo-Mohammadan Law precedents would be the model for Personal Law cases initially, but any other Fiqh could also be relied upon if the parties so desire.
For further information in Urdu, see the monthly magazine AAFAQ, February 03, 2003. Here is one article from it on Darul Qada.
The establishment of the Institute Of Islamic Justice and the associated Darul-Qadas would require some seed money, donated physical resources, and some volunteer help to get started. But once established, it is expected that, Insha Allah, the system would soon be self supporting through fees for services rendered.