Waqfs in Pakistan & Bangladesh
Since Pakistan was part of British India until the middle of the twentieth century, the waqf system in this country preserved many of the characteristics of the situation in India. Before April 1959 the following waqf acts were in force:
The Punjab Muslim Awqaf Act, 1951
The Qanoon-e-Awqaf Islami, 1945. (Former Bahwalpur State)
The North West Frontier Province Charitable Institution Act 1949
Mussalman Waqf Act (Sind Amendment), 1959
Mussalman Waqf Act (Bombay Amendment), 1935
In 1959 the Government of Punjab promulgated the West Pakistan Waqf Properties Ordinance, which granted the government the right to dispossess a mutawalli. This was followed in 1960 by the Awqaf Ordinance and West Pakistan Waqf Properties Rules, which effected wholesale nationalisations. Thus, Pakistan also joined this universal trend. According to the Rules, the endowments were to pass into the hands of the state in obvious violation not only of the Islamic law but also of the Mussalman Waqf Validating Act, 1913 which, as we know, was one of the greatest achievements of the founder of Pakistan.
The main motives for centralization of the waqfs were also similar to the rest of the Islamic world. These motives can be summarised as follows:
The administration wanted to control the religious elements in the country since waqfs were often associated with religious activities
The state had an eye on the financial resources of the endowments
Centralization meant bureaucratisation of the religious establishment, which was thus denied any opportunity for autonomy.
By the year 1984 a statistical analysis covering the provinces of Punjab, Sindh, North West Frontier Province, Baluchistan and the Islamabad Capital Territory has revealed that 344 shrines, 648 mosques, 31,913 acres of culturable lands, 48,188 acres of unculturable lands 2,215 shops, 1,869 houses had been nationalised (Malik, 1990: 72). Thus, the waqfs were no longer available for the economic and social well being of the population. The “neglected and misused” institutions from now on were to be looked after by the central and provincial governments. The Kemalist perspective of the state was propagated in the schools all over Pakistan:
“The waqfs caused anti-social wastage of national wealth. They were misused by the pirs, mutawallis, sajjadanashins and other parasites” (Malik, 1990: 75).
As a rule, however, only profitable endowments were nationalised. The Waqf Properties Ordinance, 1961 facilitated the take over of waqf property by an administrator whose position and powers were strengthened by various legislations spread over almost a decade. These individuals were called Administrator Awqaf. They were basically bureaucrats without any religious background and were scarcely aware of the religious implications of their positions. In this way, the authority of the Muslim saint was replaced by the anonymous bureaucrat.
Up to Bhutto’s time, nationalised endowments were organised on a provincial level. But after 1971 they were put directly under the Central Government. In 1976 the Government of Pakistan federalised all Provincial Awqaf Departments through the Awqaf Federal Control Act. But this policy of centralization was short lived and the power was given back to the provinces in 1979 by the Awqaf Federal Repeal Ordinance, 1979.
This Ordinance granted to the Administrator Awqaf of a province complete control over the waqfs. Accordingly, he could now take over any endowment as defined by the Repeal Ordinance without being in any way legally answerable. Section 20(2), moreover, makes it possible to intervene in a waqf in order to preserve the “sovereignty and integrity of Pakistan”.
Such government interventions, whatever may have been their cause, have naturally provoked reaction. There were, indeed, a dozen appeals against interventions of the Department, pursued all the way to the Supreme Court until the end of 1985. Of the 12 petitions, 9 were rejected and only 3 were taken up (Malik, 1990: 82). But the most outspoken criticism of the government policy was voiced by the Council of Islamic Ideology (CII), which protested the confiscations as being directly in opposition to the Islamic law. It goes without saying that the CII demanded an immediate cancellation of the confiscations. This was an answer to the enquiry of the government on the occasion of land reforms of 1972. The CII resolution suggested that the waqf estates were to be exempted from the land reform. Provision for this was made way back in the Mussalman Waqf Validating Act, 1913. These arguments, however, did not find any resonance in the government policies, which wanted to limit the influence of waqf holders.
The government could afford to be highly inflexible thanks to a ruling of the Federal Shari’ah Court (FSC), which it had set up in 1981. The FSC examined the Waqf Ordinance of 1979 along with all the existing Acts and legitimised the nationalisation. Since, the FSC ruled that nationalisation was not against the Shari’ah it saw no reason to make any suggestions to change the Ordinance. Section 16, which pertained to istibdal transactions was considered to be justified as long as the original purpose of the waqf is continued to be served. An examination of the details of these rulings has revealed that only one of the judges in the FSC has spoken against the right of the government to acquire a waqf and that none of the judges has referred to the Mussalman Waqf Validating Act, 1913 (Malik, 1990: 85).
The Awqaf Administration is also granted the right to change the curricula of the religious schools run by the waqfs. After 1962 hundreds of waqf schools were brought under the control of the Awqaf Department. Ever since that date state control has been expanding in Pakistan. Following the schools, mosques were also tied up to the Department so that Friday sermons are controlled by the administrators.
Subsequently, four different waqf ordinances were promulgated one each for the four provinces in 1979. These provinces are: Punjab, Sind, N.W.F. Province, and Baluchistan. The main objects of the Provincial Awqaf departments were:
To take over the administration and control of the waqf properties in order to ensure better management of the properties, to improve the standard of religious services and to ensure that incomes are used for the original purposes
To enhance religious education.
The Awqaf Department has its own budget and is not subsidised by the state in three of these provinces. Only in Baluchistan is subsidy provided as the number of waqfs there is very small. The department is headed by a secretary to the provincial government (IRTI/IDB, 1987: 99-100).
Towards the end of the 1980s an increase in absolute terms in the receipts of the waqfs has been observed. There is no reliable explanation for this. These figures may well have been caused by the sale of some nationalised waqfs to the State Development Authority and also by the return of some waqfs to their original mutawallis. These return transactions were conducted in accordance with section 12 of the Regulation of 1961; section 16 of 1976 and 1979 and may be considered as a policy of reconciliation with the politically powerful shrine holders. It is also possible that these awqaf may simply have been unprofitable.
In spite of a massive integration policy and all the attempts to curb the autonomy of shrines and endowments, some of them still reflect political dissent and are refuge for subcultures when some illegal activities are practised (Malik, 1990: 81).
Concerning the economic matters, it must be noted, first of all, that the receipts of the Awqaf Department accrue from the following sources:
Cash boxes in shrines (About 50% of the annual income)
Income from gifts given in connection with vows etc. (15%)
Income from attached businesses (5%)
Income from rented urban properties (15%)
Income from rented agricultural land (10%).
Thus, we are informed that the waqf-company linkage we have emphasised above is of marginal importance in Pakistan.
The great increase observed in the period 1965-71 has been explained by the increasing nationalisation of the waqfs. After the 1980s stagnation in income is observed and this has been attributed to the latent disapproval of the official policy. As for the relative contribution to the overall budgets of endowments, it has been observed that in those regions more extensively monetarised, cash box incomes tend to be high while in agrarian regions rents from land tend to dominate. This is confirmed by the observation that the Lahore zone contributes half of the total receipts of the Awqaf Department and bulk of these receipts are cash box incomes.
As for the expenditure of the Awqaf Department, the salaries of the bureaucrats constitute the most important category. These expenses have been rising from Rs 8,201,458 in 1983-84 to Rs 10,254,100 in 1985-86 thus leading us to observe that nationalisation of the awqaf has simply led to a definite enrichment of the bureaucracy. Adding up other categories for the administration, we reach a staggering figure of 57.6% of the total expenditure. Thus, nationalisation has ended up diverting more than half of the total expenditure of the waqfs from charities, their primary function, to the enrichment of the bureaucracy. We would therefore be justified in calling this phenomenon a usurpation of the waqf funds by the state. This argument is supported by the small amounts spent for education (merely 6.7% of the total expenditure) and the declining expenditure on maintenance of historical waqf buildings. As for health, only 11.7% of the total expenditure was allocated for this item. Based upon these statistics, the Awqaf Department has been accused of dissolving the traditional social structures and replacing them with nothing (Malik, 1990: 91-96).
To summarise the situation in Pakistan, in striking contradiction of the text of the Mussalman Waqf Validating Act - 1913, which the “father of the nation” had pushed through under the British, the independent state of Pakistan nationalised profitable waqfs in order to further its own interests. In this process, the essential services that these waqfs used to provide to the population have been blatantly dissipated and replaced with nothing. The whole process has been bitterly criticised as a victory of the “colonial sector” which absorbs autonomous waqfs, enriches itself, pushes through its ideology and legitimises all of this through its own religious agents. (Malik, 1990: 97).
It has been reported that at the other end of the Indian sub-continent, in Bangladesh, there are 12,579 registered waqfs. There are probably many more scattered all around the country waiting to be registered. Some of these are several centuries old. The Eastern regions have a greater number of waqfs. These are both purely charitable and family waqfs and most are of mixed nature and so, a clear division is not possible. There are 10,000 mosques maintained by awqaf. Of the madrasahs, 20% are also maintained by the awqaf. The waqfs provide financial aid to more than 500 madrasahs and a good number of schools, orphanages and charitable institutions. Waqf properties are comprised of both agricultural/non agricultural land and urban lands. Many of the latter in Dhaka and Chittagong have been developed into commercial centres.
Since Bangladesh was also part of British India, the Waqf Validating Act of 1913, which permitted the family waqfs in India, was also valid in this country. In British Bengal, the waqf estates used to be administered under the provisions of the personal law of the Muslims and the Chief Kadı of the district was the guardian of the awqaf under his jurisdiction. But the district judge had no machinery to supervise or control the awqaf. The Waqf Act of Bengal was passed in 1934 in order to remedy this situation and an autonomous office headed by the Waqf Commissioner of Bengal was created. The political situation did not permit centralised financing of this office and the Act stipulated that the expenditures of this office would be met by collecting contributions from the net income of the awqaf. The whole purpose of the Act was to impose some control over the mutawallis.
When Pakistan was created, the Bengal Waqf Act of 1934 was adopted for East Pakistan and was applied. In 1962 another law; the Awqaf Ordinance was enacted but the 1934 Act was not repealed. The 1962 Ordinance promulgated that in case there was a conflict with any other law or enactment, the provisions of the Ordinance would prevail. The basic changes made in the Ordinance of 1962 were the following: a uniform rate of waqf contribution was fixed and the Waqf Commissioner became the Waqf Administrator with quasi-judicial and administrative powers. These powers were the following:
Enrolling newly established waqfs
Appointing and removing the mutawallis
Settling waqf disputes
Investigating and determining the extent of the awqaf properties
Calling from time to time for information regarding the accounts and returns from the mutawallis
Ensuring that the incomes generated by the awqaf are spent for the original purposes
Giving directions for the proper administration of the awqaf
Assuring the direct management of certain waqfs which, if necessary, he may take over
Fixing a remuneration for the mutawalli if the waqf deed does not make a provision
Investing any money received as compensation for the acquisition of waqf properties under any law
Generally doing all such acts as may be necessary for the proper control, maintenance and administration of awqaf.
The Awqaf Ordinance also provides for establishing a waqf committee at the national level. The mutawallis were made responsible for the usual duties and if they failed in these, they were subjected to a fine of up to Taka 2,000 or imprisonment of up to 6 months. Originally the waqf administration was subject to the Ministry of Education but was transferred to the Ministry of Land Reforms and Administration and finally to the Ministry of Religious Affairs and Endowments. In Bangladesh, also, the waqf administration is highly centralised. The inspectors (auditors) posted in the districts cannot pass any order or take any decision. All the orders and the decisions are made by the Administrator at the headquarters. The entire cost of the Administrator of Awqaf is met by the waqfs themselves with some subsidies from the government. The latter are now provided regularly (IRTI/IDB, 1987: 81-85).
Source: Murat Cizakca, A History of Philanthropic Foundations: The Islamic World From the Seventh Century to the Present. Republished with permission.
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