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Waqf Crisis: Late Ottoman Era and the Republic

Beginning with the reign of Muhammad Ali Pasha, a new wave of centralization of the waqf system was initiated. Noting that the waqfs had removed at least a fifth of the land from taxation, Muhammad Ali began to reassert state control. His attempt to control culminated in the cadastral survey of 1813-14, which paved the way to the reclassification of much waqf land as miri, i.e., state-owned land that was subject to taxation (Cuno, 1982: 107).

Ismail continued this policy by establishing, for the first time, a Waqf Ministry. This took over many waqfs from the nazirs (trustees) whose position did not conform to the law. After the British occupation, the power of the trustees was reduced even more with the Regulation of Waqf Administration of July 1895, which remained in force with minor changes until the middle of the twentieth century.


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But a new conflict between the British and the Khedive was centred on the Waqf Ministry itself. Realising that the British had started to use the Ministry as a venue for their policies, Tawfiq abolished in 1884 the Waqf Ministry and established in its place a General Administration directly responsible to him. A fierce controversy soon surfaced over the control of the Egyptian waqf system. At the end, a compromise was reached: the British demands to restore the Ministry had to be complied with but the Ministry retained financial and administrative autonomy and the Minister, himself, was to be appointed directly by the Khedive.

During the Constitutional Monarchy (1923-52), the King tried to maintain the traditional right of the ruler to administer the waqfs. Based upon Section 153 of the 1923 Constitution, which regulated the way in which the King was to exercise his authority over religious institutions, the King continued to consider the Waqf Ministry as his personal agency. This attitude is confirmed by an order issued from the Royal Cabinet in August 1948 to the Minister of Awqaf that he should transfer the administration of a waqf founded by Khedive Ismail from the Ministry to the Diwan of private royal awqaf. The order was carried out and this particular waqf, together with many others, were delivered to royal control in the years 1945 to 1949.

Meanwhile the universal tendency of the waqf system to expand was also observed in Egypt: waqf lands were growing by an average of 20,000 feddans annually during the early twenties. Just when some concerned individuals were beginning to worry that bulk of Egypt’s lands would be converted into waqf land, news of the radical Turkish reforms reached Egypt, which were hailed by some Egyptian reformers from the parliamentary tribune (Baer, 1969: 84-85). The 1926 Law passed in Turkey, some months before the abandonment of the Shari’a in general, had provided for the liquidation of the waqfs, and as we have seen above, a massive destruction of Turkish waqf property had ensued. In the same year the Committee of the Waqfs in the Egyptian Chamber of Deputies, in presenting its report on the budget of the Ministry of Awqaf, made some pungent criticism of the system and remarked:

“These and other considerations make it incumbent on Parliament and those who watch over the country’s economic and social affairs to consider whether the system ought, or ought not, to continue”.

In short, impact of modernism in waqf affairs had reached Egypt via Turkey and Egyptians, perhaps for the first time, began to envisage putting an end to the whole system.

Armed with the news of “reforms” from Turkey, Egyptian reformists launched a campaign attempting to prove that Islam in its original form was not incompatible with liberal Western ideas and that only later corruptions resulted in practices which conflict with the modern point of view. Thus, bitter controversies and persistent criticism observed elsewhere also surfaced in Egypt. Modernists repeated the orientalists’ thesis that the family waqfs had no religious basis whatever, and could therefore be reformed according to modern requirements. Moreover, there were constant complaints from multitudinous beneficiaries that waqf administrators proved dishonest, high-handed, and negligent, but could never satisfactorily be brought to account. There was also the argument that a considerable part of the material and even human resources of the country lay idle under a “dead hand”, with houses derelict for lack of repair, estates impoverished for lack of development and beneficiaries indolent for lack of incentive to work.

These attacks should be considered as part of a concerted onslaught on the system re-enforced by social and economic theories from the West, inspired by the eighteenth century French philosophers and the Revolution. As we have seen before, it was under similar influences that the Turkish reformers demanded the complete abolition of the awqaf on the grounds that their wide diffusion crippled the public economy in favour of family perpetuities of the most pernicious kind. And much earlier, it was still under the same influences that Muhammad ‘Ali in Egypt had issued his famous irade-i seniye forbidding the creation of any further waqfs.

Two powerful groups, the ulema and the royalists, provided opposition to the reformists. The most prominent member of the former was Sheikh Muhammad Bakhit, formerly Mufti of Alexandria, whose opinion, it will be remembered, had been asked by Suhrawardy concerning the cash waqfs. In two lectures, delivered in reply to the modernists, Sheikh Bakhit refuted the claim that the waqf had no religious basis and that it was economically harmful. After this, he pointed out the vital importance of this institution for poverty alleviation, education and health. Were it not for their being waqf, he said, many properties would have fallen into the hands of foreign money lenders (Baer, 1969: 85).

The royalists, headed by Prince ‘Umar Tusun, launched their own offensive to the reformist drafts of the new waqf law, on the grounds that they imposed restrictions on property rights and that the spirit of the proposed law was one of disregard for the property of the great families. In the senate debate other royalists also challenged the modernists and emphasised usefulness of the family waqfs.

The principal exponent of the modernist view was Muhammad Ali ‘Alluba Pasha of the Liberal Constitutionalist Party, who had once been the Minister of Waqfs. In a draft law, which he submitted to the parliament in 1927, he proposed that in the future, family waqfs should be temporary and be endowed for a maximum of 30 years. Moreover, in a series of lectures he argued for the prohibition of de facto primogeniture, for the annulling of family waqfs established prior to a certain date, and for the right of beneficiaries to divide the waqf property into separate waqfs according to each one’s share of the income. Some of these views have been adopted by others and were finally incorporated into the Waqf Law of 1946.

Other reformers were not satisfied by ‘Alluba Pasha’s proposals and advocated nothing less than a complete abolition of family waqfs. They were a heterogeneous lot with no common denominator. Some of them were a group of Western oriented intellectuals, while others headed by ‘Abd al-Hamid ‘Abd al-Haqq, founder of the Egyptian Workers’ Party, were straightforward socialists. The main slogan of this party, similar to that of the Turkish Peoples’ Party, was the outright abolition of the family waqfs. But even the Liberal Constitutionalists and Fascists were demanding the prohibition of creating new family waqfs. The efforts of these groups were halted when the parliament itself was dissolved.

Thus, “dissolution was the fate of the Parliament before being the fate of the waqf” (Baer, 1969: 87).

In 1936 and 1937 modernising efforts were resumed and culminated in the Law no. 48 of 1946. The new law attempted to impede de facto primogeniture by restricting the creation of new waqfs thus limiting the motive for turning property into waqf. It also imposed a limit of a maximum of 60 years to a family waqf and confirmed that a public waqf, waqf khayri can be established in perpetuity. Moreover, ‘Alluba Pasha’s earlier proposal was accepted and beneficiaries were allowed to divide their waqf into separate waqfs according to their shares in the income.

This reform represents an almost revolutionary change in the waqf system. It was however, facilitated by the fact that Abu Yusuf himself had held that a waqf might validly be made for the benefit of some particular individual, after whose death the property would revert to the heirs of the founder. Maliki authority may also be quoted for such a proposition. The invalidity of any family waqf, which exceeded the prescribed limits, was supported by reference to those jurists who held that family waqfs in toto were invalid. Only a waqf of a mosque or cemetery must necessarily be perpetual; for on this point almost all jurists are agreed.

The reader may wonder, what the rationale for limiting the life span of a family waqf might be. This rationale is explained in the Explanatory Memorandum where family perpetuities are considered as a form of interdiction on series of unborn persons, of whose characters and abilities the founder could have had no knowledge (Anderson, 1952: 262). But the real motive should be sought elsewhere.

Bringing a waqf to an end subject to the extinction of a beneficiary should be linked to the efforts of rendering a waqf more like private property. Such efforts are also visible in the provision for the compulsory and final separation of any beneficiary’s share in a waqf, from the rest of the waqf property; by enacting that he should himself be appointed administrator thereof, and by ensuring that each beneficiary’s share in the waqf income should always go straight to his descendants and that such distribution should never unnecessarily be upset. Where, moreover, the above provisions are inapplicable, the administrator must be chosen, where possible, from among the number of the beneficiaries and largely at the discretion of those with the major entitlements. This person, moreover, shall be held responsible to the beneficiaries for negligence or wrongdoing; and is liable to punishment if he fails to present his accounts, together with supporting receipts, whenever the court shall so demand.

To bring the waqf closer in line with private property, the law also stipulates that if the court divides up a waqf, or if a beneficiary has a separate share therein, each beneficiary must be made administrator over his own share even if this is contrary to the provisions of the founder! Article 49 also provides further support by stipulating that

“No outsider shall be made administrator over a waqf where one of the beneficiaries is suitable to administer it: while if those with the major entitlement agree in choosing a particular administrator, the Kadi shall appoint him unless he considers this contrary to the general interests …”

The reasons which prompted these innovations has been noted in the Explanatory Memorandum as follows:

“Perhaps the chief causes for complaints against the waqf system has been that most of them oppress the beneficiaries and defraud them of their rights … and their shameful neglect of the waqf itself which occasions decrease of revenue and often ruin of the property or even its total loss … The cause of this is simply that they are not acting in their own interests at all … for it is rare for one who acts in the interest of another to be free from greed, covetousness and negligence …”

Thus the Law Maker found the remedy to this agency problem by making each beneficiary, whenever possible, directly in charge of his share of the waqf. The juristic basis for this reform is found in the Hanafi doctrine that the kadi may, in the interests of the waqf, remove one administrator and appoint another in his place, even where the former was an upright man and had been appointed by the founder.

Another major blow to the traditional Egyptian family waqfs was dealt with by the military regime and its Agrarian Reform Law (September 14, 1952), which declared that all waqfs for other than charitable purposes are considered to be null and void (existing ones as well as those to be created in the future). The property of the existing waqfs were either to be divided among the beneficiaries or revert to the founder if he were still alive and had reserved for himself the right to revoke his waqf.

The abolition of family waqfs is said to be based upon the principles of Shari’ah as well as to the principles of the newly established socialism (Barbar and Kepel, n.d.: 18). It goes without saying that whereas the former was just a pretext, the latter was the real motive. This is also confirmed by the later actions of the Nasser era. When the family waqfs were abolished, the Ministry of Awqaf assumed the trusteeship of all such waqfs. Moreover, the Ministry was also authorised to distribute the proceeds of the waqfs without consulting the original stipulations laid down by the founder (Barbar and Kepel, n.d.: 20). This was followed by the Law no.547, 1953, which deprived the founder of the right to appoint a specific trustee who would take over the waqf after him.

Although the abolition of the family waqfs met with little opposition, the execution of the law met with some difficulties. A major difficulty was the excessive division of the waqf property among too many beneficiaries. If such a division resulted in each beneficiary receiving less than five feddans, this would have conflicted with the Agrarian Reform Law. Another difficulty was to distinguish the public segment of the waqf from the family one, which should have been expected, as Islamic law does not feel the need to distinguish between the two. Since most waqf deeds did not therefore clearly demarcate these segments, this problem led to a huge amount of litigation.

When King Faruq was exiled on July 26, 1952, the public waqfs administered by the King were also taken over by the Ministry. Thus, more than a 100,000 feddans of waqf lands were taken over. One year later, a new law gave the Ministry of Awqaf the right to administer all public waqfs. Only those waqfs whose founders also acted as trustees were exempt from this rule.

This law met with fierce opposition on the grounds that it was:

  1. Unconstitutional since the revolutionary constitution had guaranteed property rights

  2. Contrary to the Shari’ah, which gives utmost priority to the conditions, laid down by the founder. This priority, it has been argued, is such that the original provision laid down by a founder of a waqf is considered to be as binding as the text of the Shari’ah.

But these objections notwithstanding, the transfer was gradually carried out and most trustees handed over their waqfs to the Ministry. Moreover, with total disregard for the objections in item b, Article 1 of the same law promulgated that the Minister of Waqfs had the right to spend the revenue of any public waqf on a purpose designed by him without being bound by the original conditions stipulated by the founder.

This blatant violation of the Islamic law was justified on the grounds that many Egyptian waqfs had originally been dedicated to objects in Turkey. This argument was given great publicity in the media supporting the new law. Thus for all practical purposes it can be argued that the public waqfs in Egypt have been nationalised: they have ended up being managed by a government department, which has been authorised to spend their revenue according to its needs.

The final blow to the waqf system in Egyptian agriculture was dealt with by a new law promulgated on July 18, 1957. According to its provisions, all agricultural lands belonging to public waqfs were to be transferred to the Land Reform Committee and to be distributed according to the Land Reform Law. Their former trustees were to receive Land Reform Bonds. The principal of these bonds was to be transferred to the Economic Organisation of the Government and invested in development projects. The former trustees, on the other hand, were to receive interest due on the bonds and later profits from the invested capital.

The 1957 Law hit the waqf system from both ends; while, on the one hand, it deprived the public waqfs of their landed revenues, on the other, it constituted a huge impediment for the endowment of new waqfs. For, surely, any person who might contemplate establishing a new waqf would be disheartened by the knowledge that his land would eventually be transferred to the Land Reform Committee.

Thus a unique combination of the abolition of the public waqfs, division of the family waqfs among the beneficiaries and their total subjugation to the Ministry combined with land reform meant that nationalisation, was followed by a massive process of privatisation. These developments allowed the government to expropriate huge properties and distribute them to landless peasants. If, as it has been often argued, private ownership of land is more productive then share cropping practised in waqf lands, then total productivity of Egyptian agriculture must have been significantly and positively affected by these developments.

The above argument that the waqf lands were distributed to landless peasants, however, must be taken with a grain of salt. For, these lands were auctioned off in 1954 and 1955 and naturally ended up in the hands of those who could best afford them. All in all, the final outcome of the republican waqf laws has been that they have liquidated that part of waqf property, which consisted of agricultural lands and have made the creation of new waqfs out of agricultural lands improbable. Indeed, when all the family waqfs have been divided among the beneficiaries and all lands of the public waqfs transferred to the Land reform Committee, only an insignificant area of family waqfs will remain.

Finally, the Articles concerning the accountability and responsibility of administrators expressly state that they are to be regarded as the agents of the beneficiaries, must produce documentary support for all their expenditure except in regard to items concerning which custom decrees otherwise, and must make good any loss caused by their major fault or neglect.

Although these measures taken by the Nasser regime, in similar fashion to those taken by the Kemalists in Turkey, proved to be harmful for the Egyptian waqf system, they ended up having a limited “success”. For a reaction did materialise and, the 1970s under Anwar Sadat, witnessed a revival of Islamic values, again, in similar fashion to Turkey where the 1967 Waqf Law has achieved a resurgence of the Turkish waqf system. It is too early, however, to write the story of this resurgence in Egypt for, the exact outcome of the conflicting forces of the secularists and the Islamists is not yet known.

 

Source: Murat Cizakca, A History of Philanthropic Foundations: The Islamic World From the Seventh Century to the Present. Republished with permission.