The Role of Waqf (Endowment) in Economic Development of Bosnia & Herzegovina: A Historical Overview and Future Prospects

Transcription

1. The Role of Waqf (Endowment) in Economic Development of Bosnia & Herzegovina: A Historical Overview and Future Prospects Edib Smolo ∗ Abstract The establishment of inalienable Muslim endowments (pl. awqāf; sing. waqf) in Bosnia and Herzegovina (B&H) goes back to the second half of XV century when Islam came to this region together with the Ottoman Empire rule. In this article, we provide a historical overview of the role of the waqf institutions in economic development of Bosnia and Herzegovina. It will cover the early stage with special reference to the fifteenth and sixteenth centuries when some of the most famous awqāf emerged. The great period for awqāf came to an end with the Austria-Hungarian takeover in 1878. These institutions were subjected to hostile environments, devastation and injustice from the various regimes that have ruled the country. The unlawful confiscation, nationalization and the ultimate abolition of the institution of waqf under the communist and socialist regime marked this period. This situation lasted until the independence of Bosnia and Herzegovina in 1992 when the Council of the Islamic Community of Bosnia and Herzegovina established the Waqf Directorate. Unfortunately, the current state of waqf in Bosnia and Herzegovina is not at the satisfactory level, although several steps are taken by the Islamic Community to restitute its institutions and reclaim it back from the State. The future of the waqf institutions will depend largely on steps that will be taken by the State and the way that they will be managed by future managers including the Islamic Community that claims its rights over the management of these institutions. Keywords: waqf, endowment, Bosnia & Herzegovina, economic development, economic history Edib Smolo is a Ph.D. candidate at the INCEIF and the Founder and the CEO of SARAYCON – Saray Consulting for Socially Responsible and Ethical Finance. ∗ 1
2. 1 .0 Introduction Qur’an does not mentions waqf (endowment) in specific terms. However, a number of verses encourages Muslims to do good deeds and promote charitable activities. This was also promoted by the Sunnah (sayings and actions) of the Prophet (p.b.u.h.). In fact, the institution of waqf was established by the Prophet (p.b.u.h.) by which a Muslim is seeking Allah’s pleasure. In general, waqf is a form of charity (sadaqah) that is encouraged in Islam. The Prophet (p.b.u.h.) especially encouraged people to invest in what is called ‘perpetual charity’ or ‘sadaqah jariyyah.’ Abu Hurayrah (r.a.) reported: The Messenger of Allah (‫ )ﷺ‬said, “When a man dies, his deeds come to an end except for three things: Sadaqah Jariyah (perpetual charity); a knowledge which is beneficial, or a virtuous descendant who prays for him (for the deceased).” 1 His ashab (companions) implemented this practice of waqf and passed it to next generations. According to some documents, there was no companion of the Prophet (p.b.u.h.) that did not form a waqf in one way or the other. This practice continued to live among Muslims ever since and until these days countless number of awqāf properties exist in the world. The waqf institution was most central in financing socio-religious and public welfare systems during the early days of Islam. More importantly, the contribution of philanthropic waqf effectively sponsored and maintained the social welfare of the Muslim Ummah in general. Gradually, however, the creation of this type of waqf degenerated and today, by and large, the waqf consists of religious kind (Mahmud & Shah, 2009). When it comes to Bosnia and Herzegovina, the waqf institution was introduced to the local community with the arrival of the Ottomans in the 15th century. The local population accepted Islam as their religion and implemented its teachings in their everyday life. Consequently, the waqf propertied became widely spread and used for the socio-economic development of the country. In this paper we will try to briefly discuss the establishment and development of the waqf institution in Bosnia and Herzegovina and shortly elaborate different historical and socio-political phases that it went through up until now. The paper consists of five sections including the introduction. Section two briefly defines the term waqf and provides its general classification. Section three discusses in more details the institution of waqf and its emergence in Islam. Section four is the main section of the paper as it focuses primarily on the waqf institution in Bosnia and Herzegovina. Finally, section five is reserved for concluding remarks. 2.0 Defining Waqf (Endowment) Literally waqf (plural awqāf) means to stop, to hold, to restrain, to detain, or to prevent, such as saying “preventing from disposition” (al-Zuhayli, 2007, p. 133). The term habs (plural ahbas) and its infinitive tahbīs is also used in the same sense. , i.e. devoting in the way of Allah (fi sabil Allah). Hence, in Arabic a ministry of endowments would be called vazīrah al-awkāf. However, in Morocco, for example, this ministry is called vazīrah al-ahbās (see Ibn Ābidīn, pp. 357-358; Tuhmaz, 1424/2003, p. 413). 1 Reported in Sahih Muslim see El-Munziri (2004, p. 951). 2
3. In Islamic law , waqf refers to an irrevocable confinement of a wealth or a property (movable or immovable) by a founder(s) and dedication of its usufruct in perpetuity to the public or to the family with the overriding objective of getting closer to Allah. In other words, the term waqf refers to assets that are donated, bequeathed, or purchased for the purpose of being held in perpetual trust as ongoing charity (sadakah jāriyah) or for a general or specific cause that Islam regards as socially beneficial. This condition of perpetuity has led over the years to a considerable accumulation of societal wealth such that awqāf has become an important sector dedicated to the social and economic improvement of the Muslim society (Abdul Kader & Dahlan, 2009; Dafterdar, 2009). Although there are several types of waqf, usually they can be classified into following three categories, namely: a) waqf khayri or public waqf; b) al-waqf al-ahli or family waqf; & c) al-waqf al-mushtarak or a combination of a public and a family waqf (Abdel Mohsin, 2009) 3.0 The Institution of Waqf in Islam The institution of waqf was first founded and became known with the advent of Islam as it was not known to the Arabs of the Jahiliyyah period (period of ignorance and before Islam). It is considered as a sunnah of the Prophet (p.b.u.h.) by which a Muslim is seeking Allah’s pleasure. In general, waqf is a form of charity (sadaqah) that is encouraged in Islam. The Prophet (p.b.u.h.) especially encouraged people to invest in what is called ‘perpetual charity’ or ‘sadaqah jariyyah.’ Abu Hurayrah (r.a.) reported: The Messenger of Allah (‫ )ﷺ‬said, “When a man dies, his deeds come to an end except for three things: Sadaqah Jariyah (perpetual charity); a knowledge which is beneficial, or a virtuous descendant who prays for him (for the deceased).” 2 Although the term waqf is not directly mentioned in the text of the Holy Qur’an, waqf derives its validity from the general directives of the Qur`an exhorting Muslims to be benevolent and charitable towards the social causes. For instance, the Qur`an says: “What you can spare of your wealth as should benefit the parents, the relatives, the orphans, the needy, the wayfarers for Allah is not unaware of the good deeds that you do.” 3 In another verse it states: “By no means shall you attain righteousness unless you give of that which you love; and whatever you give, of a truth God knows it well.” 4 In addition, the following verse further encourages Muslims to give what of the good things they have when it says: “O you who believe! Give of the good things which you have lawfully earned …” 5 Furthermore, a proof of its Shari'ah validity can be found in the Sunnah (practice) and hadith (saying or tradition) of the Prophet (p.b.u.h.) who is considered as the best example (uswatun hasanatun) for the Ummah (Muslim community). Leading by example, he started building social infrastructure on the basis of waqf. For instance, he erected the first mosque (Quba’) in Madinah, on a parcel of land made waqf by two orphans. These two pioneers in making Islamic waqf, in spite of the Prophet`s insistence on paying them for their land, refused it and stated that that they would Reported in Sahih Muslim see El-Munziri (2004, p. 951). Al-Baqarah: 215. 4 Al-i-`Imran: 92. 5 Al-Baqarah: 267. 2 3 3
4. claim its reward from Allah in the next world . This mosque now stands now on the same lot with a new and enlarged structure. In addition, in his last will the Prophet (p.b.u.h.) dedicated all his belongings to the Muslim Ummah and forbade his legal heirs from inheriting anything after his death. He only left small portions (sustenance) needed for their everyday life. His ashab (companions) followed his example. As a result, a number of waqf properties have been established during the Prophet (p.b.u.h.) lifetime and this practice continued even after his demise. Among the first ashab that created a waqf property was ‘Umar (r.a.). In a hadith reported in Sahih al-Bukhari and narrated by Ibn ‘Umar (r.a.) is stated: “When `Umar got a piece of land in Khaibar, he came to the Prophet (‫ )ﷺ‬saying, “I have got a piece of land, better than which I have never got. So what do you advise me regarding it?” The Prophet (‫ )ﷺ‬said, “If you wish you can keep it as an endowment to be used for charitable purposes.” So, `Umar gave the land in charity (i.e. as an endowments on the condition that the land would neither be sold nor given as a present, nor bequeathed, (and its yield) would be used for the poor, the kinsmen, the emancipation of slaves, Jihad, and for guests and travelers; and its administrator could eat in a reasonable just manner, and he also could feed his friends without intending to be wealthy by its means.” 6 Sahih al-Bukhari reported another hadith narrated by Enes (r.a.), which states: “Abu Talha had the greatest wealth of date-palms amongst the Ansar in Medina, and he prized above all his wealth (his garden) Bairuha', which was situated opposite the Mosque (of the Prophet (‫) )ﷺ‬. The Prophet used to enter it and drink from its fresh water. When the following Divine Verse came: “By no means shall you attain piety until you spend of what you love,” (3.92) Abu Talha got up saying. “O Allah's Messenger (‫ !)ﷺ‬Allah says, 'You will not attain piety until you spend of what you love,' and I prize above all my wealth, Bairuha' which I want to give in charity for Allah's Sake, hoping for its reward from Allah. So you can use it as Allah directs you.” On that the Prophet (‫ )ﷺ‬said, “Bravo! It is a profitable (or perishable) property. (Ibn Maslama is not sure as to which word is right, i.e. profitable or perishable.) I have heard what you have said, and I recommend that you distribute this amongst your relatives.” On that Abu Talha said, “O Allah's Messenger (‫ !)ﷺ‬I will do (as you have suggested).” So, Abu Talha distributed that garden amongst his relatives and cousins.” 7 This was the first family waqf in the Muslim history. 8 The above hadith, as pointed out by Abdel Mohsin (2009), lists down a number of rules related to the waqf. First, once the property becomes a waqf it must not be sold or inherited or given away as a gift. Second, it is up to the founder to specify beneficiary(ies), either person(s) or institution(s) he feels need it more, i.e. either to See Al-Bukhari (2009), Sahih al-Bukhari, Hadith No. 2772 (p. 614). See Al-Bukhari (2009), Sahih al-Bukhari, Hadith No. 2769 (p. 612). 8 Similar examples has been realized from the creation of the companions of the Prophet (p.b.u.h.) as has been documented by Al-Humaidi, shaykh of al-Bukhari, who gave the names of the companions, their endowments and their beneficiaries. He stated that Caliph Abu Bakr endowed his house to his children, ‘Omar b. al-Khatab endowed his land at Thamgh to his children, Sa‘d ibn Abu Waqqas his house in Madinah and Egypt for his children, and al-Zubair ibn al-‘Awwam his houses in Makkah and Egypt and his money in Madinah for his children, ‘Omar b. al-‘As his house in Makkah for his children, and Hakim b. Hizam his houses in Makkah and Madinah to his children. Moreover, most of the wives of the Prophet (p.b.u.h.) had created family waqf, for example, ‘Aisha, Umm Salamah, Umm Habibah, Safiah and Hafsah created their own waqf for the benefit of their kin (see Abdel Mohsin, 2009) 6 7 4
5. the public or to his family . In this case, Caliph ‘Umar devoted it to both public and family. Third, the administration of the waqf is also clarified since the founder, he himself administers his own waqf and at the same time he can benefit from it in a reasonable manner as long as he lives. Hence, the institution of waqf is a sunna established by the Prophet (pbuh) that played a remarkable role in the socio-economic development of Muslim societies: for centuries and in assisting them in providing all the essential services such as: financing and supporting health and educational sectors; supplying basic infrastructures such as roads, water canals and bridges; financing and sustaining mosques, schools, universities, hospitals and other public utility charitable institutions; creating jobs; enhancing commercial and business activities; providing food for the hungry and shelter for the poor and the needy; supporting agricultural and industrial sectors, etc. On top of that, all these services by waqf properties and institutions was carried out without any cost to the government. (Abdel Mohsin, 2009; Čajlaković, 2009; Esmaeili, 2009; Saleem, 2009). Historically speaking, the non-profit institution of waqf soon became a model for socio-economic development of Muslim societies throughout the world wherever Islam was introduced and accepted by people. In fact, the waqf institution offered many services that the modern welfare state today strives to offer. However, over the years and especially since the end of the 19th century, the role of the waqf as an effective tool for socio-economic development had been deteriorated, neglected and often forgotten. This can be attributed to a number of reasons including, but not limited to the legacy of colonization of Muslim countries, centralization, confiscation and abolishment of waqf properties by both Muslim and non-Muslim governments, just to name a few. As a result, creation of new waqf properties is almost nonexistent as very few are donated nowadays. In addition, we can witness a dormant nature of many waqf assets. Over the years, “a large number of awqāf properties were expropriated, lost, or remained undeveloped or under-utilized and the latent wealth of awqāf remains largely untapped” (Abdel Mohsin, 2009; Dafterdar, 2009) 4.0 The Role of Waqf in Economic Development of Bosnia & Herzegovina Historically speaking and as mentioned briefly above, the institution of waqf played a very important role in the socio-economic development of the Muslim world. The same is true when we consider Bosnia and Herzegovina. As the institution of waqf was introduced by the Prophet (p.b.u.h.), its spread over the world followed the conquests of Muslim state and dissemination of Islamic teachings. Bosnia and Herzegovina is but an example how Islam, with all its teachings and principles, contributed to the socio-economic development of the country. In the following pages we will discuss the historical phases through which the institution of waqf went through (and still going through) and indicate its contributions to the socio-economic development of the country. 9 4.1 Phase I – The Ottoman Period The institution of waqf in Bosnia and Herzegovina was introduced in XV century with the Ottoman’s conquest of that region. Namely, in 1463 Maḥmūd Pasha, Please note that we will not discuss much about the history of Bosnia and Herzegovina as this is not the main focus of the study. Rather, we will focus directly on the institution of waqf and its relevance for the socio-economic development of Bosnia and Herzegovina. 9 5
6. under the direction of Sultan Mu ḥammad II the Conqueror (r. 1444-46 and 145181), led the Ottoman armies to victory over hostile forces in Bosnia. The conquest started much earlier and by the year 1492 the rest of Herzegovina came under Ottoman rule as well. 10 During that period, the territory of B&H was occupied by local people who called themselves Bosnianks and were also known by the Roman Church as the Bogomils. 11 It is reported that the Bogomils, due to similarities between their beliefs and rituals with Islamic tradition, accepted Islam en masse and the Ottoman rule over the territory. This is contrary to overwhelming opinion that Islam was spread ‘by the sword’ including the B&H territory and people (Abid, 2017; Trakić, 2012). B&H was under the Ottoman Empire’s rule for 415 years, since 1463 until 1878 and during this period, all issues related to the waqf institutions were addressed according to Islamic teachings, namely according to the Holy Qur’an and the Sunnah of the Prophet (p.b.u.h.). These two, the Qur’an and the Sunnah, were the basic sources of Ottoman law since the 14th until the beginning of the 20th century. Legal gaps have been completed by passing a series of regulations that were largely contained in the laws (kānūn) and the imperial orders (farmān). During the 19th century, a number of laws were adopted. The Law on the Waqf Administration was passed in 1863, and the Law on the Order of Succession of the ijāratayn 12 waqf in 1870. In other laws passed during this period we can find regulations on waqf properties, especially in the Ottoman Land Law from 1858 and the Ottoman Civil Code, better known as Majallah, whose regulations were gradually passed from 1869 to 1876. At that time, a great deal of attention was given to the institution of waqf as it had a great and importance for the whole society. During that period, the state controlled the administration, the army and the authorities in general while almost all other social activities were based on the waqf institution (Begović, 1963, p. 5). It should be noted, however, that even during that period there were many issues related to the waqf institution and properties. Documents show many mismanagements and abuses of waqf properties which indicates that it did not functioned completely well even then. Bosnia and Herzegovina (B&H) was initially knows as Kingdom of Bosnia. Later on, its name was changed to Bosnia and Herzegovina where ‘Bosnia’ refers to northern and central parts of the modern territory of B&H and ‘Herzegovina’ to south parts. Nowadays, when we refer to Bosnia we mean B&H as a whole. 11 The Bogomils were a Gnostic religio-political sect founded in the First Bulgarian Empire by the priest Bogomil during the reign of Tsar Peter I in the tenth century. It most probably arose in what is today the region of Macedonia as a response to the social stratification that occurred as a result of the introduction of feudalism and as a form of political movement and opposition to the Bulgarian state and the church. The Bogomils called for a return to early Christianity, rejecting the ecclesiastical, and their primary political tendencies were resistance to the state and church authorities. This helped the movement spread quickly in the Balkans, gradually expanding throughout the Byzantine Empire and later reaching the Kievan Rus, Bosnia and Herzegovina, Dalmatia, Italy, France, and England. The Bogomils were dualists in that they believed the world was created not by the Abrahamic God, but by an evil demiurge – the Devil. They did not use the cross nor build churches, preferring to perform rituals outdoors (for details see Obolensky, 2004; as mentioned in Trakić, 2012). 12 Ijāratayn means leasing waqf property under two leases (rentals). According to Shari’ah principles, when it is found that the waqf property has no money that can be used for renovation of its properties, for instance rebuilding a demolished house or a shop, and when there is no one willing to do so using his/her own resources, in that case Shari’ah allows this practice of ijāratayn. A person that is looking for a rent, ijāratayn, is required to pay two prices: i) a price that is approximately equal to the value of the property; and ii) a smaller price that would be payable at the end of every year and it was called ijarah mujallah (see Balagija, 1933, pp. 19-21; as mentioned in Čajlaković, 2009, p. 244) 10 6
7. The first waqf in B &H was founded in the 15th century. In 1537, under the direction of the regional Ottoman governor, Gazi Husrev Beg (d. 1541), the first major madrasah was established in Sarajevo. The aim of this new madrasah was the complete integration of the latest sciences of the time, such as mathematics, literature, and natural sciences, plus the traditional religious sciences such as Islamic theology, tafsīr (Qur’ānic exegesis), ḥadīth (prophetic traditions), and uṣūl al-fiqh (principles of Islamic jurisprudence) (Trakić, 2012). At that time, only what was fully owned (mulk) could have been a subject matter of a waqf. The waqf institution in B&H reached its pinnacle in the period from 16th to 18th century when over two thousand waqf properties were founded. Numerous vakufnama 13 (waqfnāmes or waqf certificates), as living witnesses of the waqf institution and its history in B&H, remained attached to the waqf properties or were kept by founders themselves, which is why, in most cases, they were lost. During the Ottoman period, the waqf institution was a powerful factor in promoting and maintaining the then state-political concepts, which was of particular importance for the then government. This was the reason why the state administration insisted on the early establishment of awqāf and the construction of waqf properties. The presence of waqf in the newly conquered territory meant the ideological and political strengthening of the regime, the guarantee of its stability, and thus the security of the defense of the Bosnian soil, whose strategic and political importance in the Ottoman Empire was great (Čajlaković, 2009). Living for hundreds of years with waqf and from the income generated out of waqf properties – an institution that provided conditions for undisturbed religious life, and which, during the Ottoman administration, was responsible for education and social care of the Muslim population as well as a founder of new urban and economic milieu and facilities 14 – Muslims in B&H have accepted waqf as an integral part of their daily social life. Thus, waqf became a kind of national institution (Čajlaković, 2009; Čaušević, 1983). Mutawallīs (managers) managed awqāf. Due to a process of a general decline of the power of the Ottoman Empire, this inevitably led to weakening and various misuse of the waqf management. Along with the weakening of the supervisory authority, consisting of a Shari’ah judge (qādi) and a supervisor (nāzir), the influence and the power of mutawallīs increased tremendously. As a result, mutawallīs increased their personal wealth unjustly and at the expense of awqāf (Durmišević, 2002; Handžić, 1983). Vakufnama or waqfnāmes simply represent a certificate of a waqf which list down all matters related to the administration and utilization of the particular waqf property. 14 Up until 8 October 1966, there was no hospital in B&H. In that year, upon the incentive of then protector, Sharif Osman-Pasha, a Waqf Hospital was build and opened at Kovači, in the street Halilbašića 16. The construction of this hospital was founded from the revenues generated out of the Gazi Husrev Beg’s waqf properties. In the beginning, the hospital had: a manager, a doctor, a pharmacist, several servers and thirty-two beds. Patients received treatments regardless of their religious denominations and they were treated, most often, for free. Waqf was covering the costs of the hospital. At the beginning of 1882, the State Government took over this hospital. Over time, this hospital became too crowded that led to a construction of the State Hospital, which began in 1894. That year the Waqf Hospital was turned into an Institute for mental illness, which functioned until the construction of a modern hospital for mental illness within the complex of the National Hospital (Talić, 1996). 13 7
8. At the end of the 19th century , the Ottoman Empire began with reforms. A unique central authority, a ministry of waqf that was in charge of awqāf was established in Istanbul, with a sole objective of preventing selfishness and misuse of mutawallīs. The above ministry assumed the surveillance of waqf revenues. Unfortunately, nothing, in essence, has changed. However, this reform led to a creation of awqāf directory, which contributed to the preservation of the most important information about them (Čajlaković, 2009). In short, the establishment of waqf in B&H started with the official arrival of the Ottomans as shown briefly above. How much the waqf institution meant for the development of B&H and the emergence of urban, and therefore political, economic, cultural and religious centers, the most illustrative is the fact that the names of some cities in B&H have in their names the word waqf (or its Bosnian equivalent ‘vakuf’) indicating that these cities and towns were founded upon a waqf property(ies). These cities are, for example, Kulen-Vakuf, Skender-Vakuf, Gornji Vakuf, Donji Vakuf and many others. In addition to these, for some cities it is known that they used to have the word ‘vakuf’ in their own name. Thus, today's Mrkonjić-Grad was once called Varcar-Vakuf, and today's Sanski Most was only called Vakuf and the like. Most of the old cities in B&H are somehow related to the establishment and/or development of a certain waqf, that is, to a person who founded that particular waqf. Thus, for example, the following cities are related to the establishment of a waqf and its waqif (benefactor), namely: a) b) c) d) e) f) g) h) i) j) k) l) m) n) Sarajevo – Isa-beg Ishaković and Gazi Husrev Beg; 15 Tuzla – Turali-beg; Mostar – Karađoz-beg and Koski Mehmed-pasha; Tešanj – Ferhad, son of Skenderov; Maglaj – Kalavun Yusuf-pasha; New Kasaba – Musa-pasha, a vazir from Budim; Banja Luka – Ferhad-pasha Sokolovic and Sophie Mehmed-pasha; Gradačac – Captain Gradaščević: Osman, Murat and Husein; Foča – Mehmed-pasha Kukavica; Mrkonjić-Grad - Kizlar-aga Mustafa; Rogatica – Hussein-beg, son of Ilijaz-beg; Višegrad and Rudo – Kara Mustafa-pasha; Čajniče – Gazi Sinan-beg, Gračanica – Ahmed-pasha Budimlija. From the list shown, it can be seen that the vast majority of the wākifs (benefactors) came from the domestic population who played significant political and military functions within the Ottoman state governing the territory of B&H. These are: vazirs, pashas, bays, agas, gāzis, captains and others. 16 However, this does not mean that vakifs were only rich members of the Bosnian community. Rather, vākifs that vākifs came from all social classes as numerous data indicate. Thus, many traders, craftsmen, cadavers, mufti, ‘ulema and imams, men Beg or Bay – a title used on territories controlled by the Ottoman Empire. Different names and titles given to various roles played by administrative people within the Ottoman Empire. 15 16 8
9. and women , contributed to the creation of various awqāf in B&H (Štulanović, 2004; Vakufska direkcija, 2010, 2011). 4.2 Phase II – The Habsburg Monarchy Bosnia and Herzegovina fell under Austro-Hungarian rule in 1878 when the Congress of Berlin approved the occupation of the Bosnia Vilayet, which officially remained part of the Ottoman Empire. Knowing the significance of the waqf institution, Austro-Hungarian authorities took over the control of it. This has been a long-lasting issue and a dispute between the new government and Muslims in B&H. On one hand, Muslims demanded that Austro-Hungarian government leave the management and control over the waqf institutions in their hands referring to the convention of 21 April 1879 between the Ottomans and Austria-Hungary. On the other hand, Austro-Hungarian, made every step possible to keep the waqf institutions under its control. The newly established government found the waqf institution in a very bad shape and immediately began with the state of affairs and the introduction of orders. The initial steps came from the Muslims themselves that resulted in issuance of the first order, three years after the occupation, in 1881. Consequently, the government passed several orders related to the organization waqf property. 17 The government agreed that the administration of the waqf would be entrusted upon a Muslim. Thus, on 15 March 1883, the Provincial Waqf Commission (Zemaljsko Vakufska Komisija) was established. This commission, among other things, was tasked with registering all waqf properties in the country, to control their expenditure, and to carry out new regulations regarding the waqf administration. The PWQ was composed of the President, Inspector, Secretary, four members of the council of Muslim clerics (majlis al- ʿulamā’), two High Sharīʿah Court judges, and two prominent Muslims from each of Bosnia’s six districts (Trakić, 2012). In this commission, the government was represented by a special official in the capacity of a government commissioner. Without his presence and consent, no significant waqf work could have been done. Thus, the government controlled all waqf jobs and directly interfered with their management (Čajlaković, 2009). In addition, the Provincial Waqf Board (Zemaljsko Vakufsko Ravnateljstvo) was established. It was an executive body whose main duty was to assist the PWQ with the fieldwork and gathering of any information in relation to waqf administration in every district. The PWB was composed of the President, Inspector and Secretary of the PWQ, with necessary clerical staff. In the districts these waqf boards were headed by sharīʿah judges. Unfortunately, the members of those bodies were appointed by the Habsburg administration, a circumstance which left considerable space for the misuse of awqāf for purposes other than those which are permitted by Islamic law (Trakić, 2012). The Muslims in Bosnia became extremely were not happy with the existing situation. Already heated situation culminated with an incident that happened in Herzegovina. Namely, in 1899, an underaged Muslim girl from the town of Mostar – Fata Omanović – was taken away by Catholic nuns, converted to Christianity, and secretly sent to Austria to marry an Austrian officer. This event caused outrage The first order issued in 1881 was followed by orders from 1883, 1884, 1885, and 1894. In general, all orders left the Austro-Hungarian government's influence on the waqf administration. These orders introduced a uniform and stable administration of waqf affairs (see Čajlaković, 2009; Trakić, 2012). 17 9
10. among the local Muslim community . Demonstrations were led by Ali Fehmi Dzabić (1853-1918), 18 the muftī of Mostar, who submitted demands to the Habsburg administration demanding the reorganization of Muslim religious affairs, in particular the waqf and educational sectors (Karcić, 1999). All this resulted in the creation of a movement for religious and waqf-educational authonomy (vjerska i vakufsko-mearifetska samouprava). The movement demanded the reshaping of the waqf administration in such a way that members of waqf bodies would be elected by the Muslims themselves. Dzabic was the leader of this movement until his visit to Ottoman Istanbul, when the Habsburg administration prohibited him from returning back to Bosnia and Herzegovina. As a result of the constant pressure by Bosniaks, Vienna accepted most of the movements’ demands pertaining to the administration of Islamic affairs. The Statute for the Autonomous Administration of Islamic-Religious and WaqfEducational Affairs in Bosnia and Herzegovina (Statut za autonomnu upravu islamsko-vjerskih i vakufsko-mearifskih poslova u BiH) was adopted on 15 April 1909. By virtue of this statute, the autonomy and election of an authority administering the waqf were granted. The said Statute has determined that all movable and immovable waqf property is the property of a waqf itself; to be governed by Shari’ah; to be governed by the bodies that Muslims chose; and that it serves exclusively for the religious and educational purposes of Muslims. The consequences of this struggle were multiply significant both internally and internationally, because this statute was the basis of all subsequent resolutions about waqf, regardless of the change in the government in BiH, until 1945 (Begović, 1963; Čajlaković, 2009; Karcić, 1983; Mulalić, 2001; Trakić, 2012). 4.3 Phase III – The Kingdom of Serbs, Croats and Slovenes (SHS) With the collapse of the Austro-Hungarian Monarchy, in 1918, there was internationalization of the waqf issue. Namely, with the creation of the Kingdom of SHS, the state of Muslims deteriorated further. However, the Kingdom of SHS was forced to sign Saint-Germaine peace agreement on 10 September 1919. Article 10 of that agreement states: “The state of Serbs, Croats and Slovenes is committed to ensuring the protection of mosques, cemeteries and other Muslim religious institutions. All necessary facilities and permits will be provided to Muslim endowments (awqāf) and religious charities; the government of the Serbs, Croats and Slovenes will not deprive any of the necessary reliefs for the establishment of new religious and charitable institutions” (Bojić, 2001, p. 163). In 1929, the kingdom was renamed ‘Yugoslavia’. During the ‘Kingdom of Yugoslavia’ period, the Muslims claimed an autonomous administration over the waqf properties which was disputed by the authorities. For the Muslims, the situation only worsened by the introduction of the Sixth January dictatorship that took place on 6 January 1929, by King Aleksandar I Karađorđević (r. 1918-34). On 31 January 1930, the King abolished the Statute for the Autonomous Administration of Islamic Religious, Waqf, and Educational Affairs and Ali Fehmi Dzabić was the muftī of the town of Mostar. He was also known under the name of ʿAlī b. Shākir Fahmī Jābirzāde al-Mustarī and had an excellent knowledge of Arabic, literature, and geology. He wrote a number of works such as Ḥusn al-ṣiḥābah fi sharh al-ṣaḥābah, Ṭilbat al-ṭālib fī sharḥ Lāmiyyah Abī Ṭālib etc. 18 10
11. subsequently in 1936 introduced the Law on the Islamic Community . 19 Accordingly, the Waqf and Educational Affairs did not fall under the jurisdiction of the Islamic Community but were placed under the direct authority of the Ministry of Justice of the Kingdom of Yugoslavia (Čajlaković, 2009; Trakić, 2012). 4.4 Phase IV – The Socialist Federal Republic of Yugoslavia (SFRY) The Constitution of the Federal National Republic of Yugoslavia (FNRY) was passed on 31 January 1946 and the Law on the Legal Position of Religious Communities was passed on 13 July 1953. New Yugoslavia maintained the principle of separation of religion from the state, so the state left the waqf administration to the Islamic community of B&H. Furthermore, on 16 May 1959 the state is adopted a general law on the protection of cultural monuments. This law placed many waqf objects, such as mosques, darwish houses (‘tekije’), madrasas and cemeteries, were placed under the state protection. The Constitution of the SFRY issued on 7 April 1963 gave the Islamic Community rights over the waqf property so that it can govern and use it in the spirit of Shari'ah and within the boundaries of State laws (Begović, 1963, pp. 9-10). However, this time witnessed the nationalization of waqf and Muslim properties in general. Hence, this period is considered as the most difficult period for the waqf institution in B&H. The conditions of the waqf institution during this period is further explained by Trakić (2012) in the following lines: The extraordinarily harsh attitude of communist regime towards the waqf at this particular time culminated in the year 1958 when the Laws on Nationalisation of Leased Buildings and Land was legislated. The purpose of this piece of legislation was to take the last breath of the Islamic Community. By this piece of legislation, the Islamic Community was left overnight without any immovable property – except the mosques.26 The waqf land, the forests, and the buildings – the financial skeleton of the Islamic Community for its maintenance and very existence – were simply taken away.27 Subsequently, on 13 July 1959, there was an emergency meeting of the Islamic Community in which a new constitution had been adopted which abolished the existence of the organs and administration of waqf because the new legislation on the nationalisation of waqf had caused it to slip out of its control. As a purely religious organisation, the Islamic Community remained secluded from any active participation in the lives of Muslims in Bosnia and Herzegovina. The mosques were maintained from the alms and financial contributions of Muslim families on a purely individual basis (Trakić, 2012, p. 344). 20 19 In the middle of 1930, the government of the Kingdom of Yugoslavia removed raisu-l-‘ulama Džemaludin Čaušević and sent him into early retirement. The reason for early retirement was his advocacy for Muslim rights and the protection of their properties. At the time, there were about two million Muslims in the Kingdom of Yugoslavia. However, many did not see their future in that country, so they migrated in large numbers. Since the creation of the Kingdom of SHS until December 1931 about 45,000 Muslims moved to Turkey (see Bojić, 2001, p. 175). 20 Only in Sarajevo, about 24 mosques were destroyed during the Socialist Yugoslavia. At the same time, 204,000m2 of Muslim cemeteries were used for various purposes. A significant number of waqf shops were demolished with a useful surface of 2,571m2. Over 103,707m2 of waqf houses, courtyards and construction sites for houses were demolished. Expropriation and nationalization resulted in the 11
12. Even though the waqf institution was nationalized after the World War II and during the period of the SFRY , its significance did not vanish. The waqf institution remained connected to mosques and other properties that remained under the ownership of the Islamic Community. Besides, a number of new waqf formations were recorded during this period that, although much more modest, were equally important for the economic development of B&H as the old ones (Dobrača, 1976, p. 45). 4.5 Phase V – Pre- and Post-Dayton Peace Accord During the aggression on B&H that took place between 1992 and 1995, the waqf properties suffered massive losses and damages. Aggressors on both sides – the Serbs on east and north and the Croats on south and west of B&H – endangered, killed and destroyed not only hundreds of thousands of lives of citizens of B&H, but destroyed a large number of Bosniaks’ religious and cultural objects. 21 During the aggression period, two important laws were legislated with an aim to protect and prevent the sale of waqf properties and other religious properties nationalized by previous regimes, namely: i. ii. Laws on the Prohibition of the Sale of Common Property on which the Right Was Established Through Lease; 22 and Laws on the Special Protection of Sacred Objects and Places. 23 As of today, there are no specific laws and no particular ministry that govern the waqf institution in B&H. In fact, as pointed out by Trakić (2012) “there is not even any specific law which mentions the name waqf. The word which indicates waqf is the word ‘foundation’. In English the word ‘foundation’ can be defined as “an organisation that is established to provide money for a particular purpose, for example for scientific research or charity.” 24 Therefore, the protection of waqf in the legal documentations of Bosnia and Herzegovina is done through the word ‘foundation’ … Since the ‘foundations’ enjoy constitutional recognition, parliament, as a legislative body, was pressured to pass laws to govern and protect them. As a result, in 2001 the Parliament of the Federation of Bosnia and Herzegovina passed a statute called the Law on Associations and Foundations. 25 seizure of more than 536,023m2 of waqf gardens, orchards, meadows, arable land and other properties. This is only a brief overview of the suffering of the material and culture objects of Muslims in Sarajevo, as well as the properties that were used to sustain those facilities (see Begić, 2000; Koštović, 1995, p. 11). 21 During the aggressor's march on B&H and the Bosniaks, the most important objects of Islamic architecture in BiH were not spared of their destructive and ill intentions. During the three-year aggression more than 600 mosques were completely destroyed and more or less the same amount of mosques were partially demolished. Some of the examples are: the Gazi Husrev-beg mosque (1532); Careva mosque (1565); Baščaršijska (1529); Ali-pasha mosque (1561); Magribiya (1766) in Sarajevo; Aladža (1551) and Careva mosque (1483) in Foča; Sultan Esme Mosque (1745) in Jajce; Karađoz-beg mosque (1570) in Mostar; Ferhadija (1579) and Arnaudija (1595) in Banja Luka (destroyed on May 7, 1993); Emin Turhan-bey's mosque in Ustikolina (1449), which is the oldest mosque in BiH, as well as many others. Most of them were under the protection of UNESCO (see Ćeman, 2007, 2008; Omerdić, 1999, p. 15). 22 Official Gazette of the Socialist Republic of Bosnia and Herzegovina, No. 4 (17 February 1992), 100. 23 Official Gazette of the Socialist Republic of Bosnia and Herzegovina, No. 13 (June 1993), 324-25. 24 See Oxford Advanced Learner’s Dictionary ("Oxford," 2007) 25 The Law on Associations and Foundations was passed by the Parliament of the Federation of Bosnia and Herzegovina in both Houses in 2002 (No. 01-3-02-3-46/02). It was also passed by the Parliament of Bosnia and Herzegovina on 5 October 2001. 12
13. This piece of legislation was of great importance to all non-governmental organisations in Bosnia and Herzegovina , including ‘foundations’. Thus, this law has legislated indirectly on the protection and legal recognition of waqf, since waqf has been regarded as a ‘foundation’.” (Trakić, 2012, p. 346). He goes further by stating: At present, waqf is mentioned and explained in the Constitution of the Islamic Community of 1998. There are a few articles explicitly explaining the matters relating to waqf. Article 28, for instance, says that “the property of the Islamic Community is comprised of waqf, as well as other things like monetary founds.” Article 31 states that “every person, individual, or company (legal personality) can in accordance with sharīʿah laws leave his property as waqf.” The Presidency of the Islamic Community, based on constitutional jurisdiction dealing with the waqf affairs, has come out on 22 May 1999 with the Statute of the Waqf Directorate which observes that other organs that are entrusted with jurisdictional powers to deal with waqf affairs are the local Islamic community, special judicial waqf bodies, and mutawallīs. 26 By virtue of Article 32 of the Constitution of the Islamic Community in Bosnia and Herzegovina, the Waqf Directorate manages the property of endowments. Therefore, the management of waqf in Bosnia and Herzegovina should be entrusted to the Waqf Directorate which would be assisted and consulted by three previously mentioned organs. 27 Furthermore, according to information provided by the former Director of the Waqf Directorate of Bosnia and Herzegovina, Nezim Halilović Muderris, by 24 October 2007 the waqf sector in Bosnia and Herzegovina consisted of 1,144 mosques, 570 masjids, 1,030 shopping lots, 3,027 graveyards, 1,570 houses and apartments, 886 buildings, and 4,829 parcels of land 28 (Trakić, 2012, p. 347). Ever since the end of the aggression on B&H and the signing of the Dayton peace accord, attempts have been made by various groups from B&H (primarily by the representative of the Islamic Community) to restitute the waqf properties. An initial step was taken in December 1996 by the team of experts on matters pertaining to privatization in the Federation of Bosnia and Herzegovina whereby they drafted the Bill on Restitution. If the return of waqf property is not possible, then monetary compensation of equal value was to be paid. This battle for the restitution of the waqf properties is an on-going challenge before the Government of B&H as the issue is yet to be settled. 29 5.0 Conclusions Waqf represents an Islamic financial institution that bases its foundation on the Qur’an and the Sunnah. Awqāf institutions played an invaluable role the socio-economic, cultural and religious development of Muslim societies and economies. The same is true for Bosnia and Herzegovina. The emergence of waqf properties in B&H started See Salikić (2001, p. 352). See Hrvačić (2000). 28 See Ćeman (2007). 29 For more details about the restitution of waqf properties in B&H see Trakić (2002, pp. 347-50). 26 27 13
14. with the arrival of the Ottomans and the introduction of Islam and its acceptance by the domicile people known as Bogomils . Since the very adoption of Islam in the middle of the 15th century, the Muslims in B&H have acknowledged and promoted the institution of waqf by founding their own waqf properties for public and family uses. By doing so, the Muslims of B&H followed in the footsteps of the Prophet Muhammad (p.b.u.h.) and the first generations of Muslims who wanted to achieve Allah’s pleasure by bequeathing what they dear the most in this world. Throughout the Balkans, and especially in B&H, an impressive number of awqāf properties were created. The exact number of awqāf properties is difficult to determine as it is difficult to clearly indicate their contributions to the economic development of any countries where they can be found, including B&H. It is suffice to say that they played a tremendous role in the socio-economic development and in most cases playes supplementary role to the government agencies in providing various social services that, otherwise, may not be available. However, throughout the centuries and especially during the last hundred years B&H went through a number of different and something conflicting regimes. First, it migrated from the Oriental-Islamic to the Western-European civilization. Second, it passed through several state-legal frameworks, from monarchies to communist regimes witnessing a number of military conflicts including two World Wars and the aggression of 1990’s. All these instances played a significant part on the waqf institution and as pointed out briefly in the paper a large number of awqāf properties were seized and/or destroyed. Although attempts are made to restitute the waqf institution in B&H,it remains to be seen whether the existing government in B&H will return the awqāf properties to the Islamic Community, as the only legal and legitimate owner. References: Abdel Mohsin, M. I. (2009). Family Waqf: Its Origin, Law Prospects. Paper presented at the Waqf Laws and Management: Reality and Prospects, Kuala Lumpur. Abdul Kader, S. Z. S., & Dahlan, N. H. M. (2009). Current Legal Issues Concerning Awqaf in Malaysia. Paper presented at the Waqf Laws and Management: Reality and Prospects, Kuala Lumpur. Abid, S. (2017). Europe’s Endangered Species: Yugoslavia’s Forgotten Muslims: A Survey of the Indigenous Muslims of Bosnia and Herzegovina Past HistoryCurrent SituationFuture Prospects, available online at http://www.cyberistan.org/islamic/yugoslavia1.htm. Retrieved 22 September, 2017 al-Zuhayli, W. (2007). Al-Wasaya wa al-Waqf fi al-Fiqh al-Islami. Dimashq: Dar alFiqr. Balagija, A. (1933). Uloga vakufa u verskom i svetovnom prosvećivanju naših muslimana. Beograd: Štamparija Drag. Gregorića. Begić, M. (Ed.). (2000). Zemljovlasnici Bosne: vlasnicke pravne norme od disolucije (31.12.1991) ex-Jugoslavije do potpisivanja Dejtonskog sporazuma (14.12.1995) [Landlords of Bosnia: Legal Norms of Ownership from the 14
15. Dissolution (31 December 1991) of ex-Yugoslavia until the Signing of the Dayton Peace Agreement (14 December 1995)]. Sarajevo. Begović, M. (1963). Vakufi u Jugoslaviji. Beograd: SANU. Bojić, M. (2001). Historija Bosne i Bošnjaka (XVII-XX vijeka). Sarajevo: Šahinpašić. Čajlaković, M. (2009). Nastanak i razvoj institucije vakufa s posebnim osvrtom na vakuf u BiH. Glasnik, June (3-4), 239-256. Čaušević, H. (1983). Pravni i sociološki aspekti institucije vakufa-zaklade, s posebnim obzirom na njen razvoj u BiH. Anali GHB biblioteke (Vol. IX-X). Sarajevo: GHB biblioteka. Ćeman, S. (2007). Komparativna studija o polozaju vakufa i fondacija u serijatkom pravu i pozitivnim zakonima propisanim u Bosni i Hrcegovini [Comparative Study of Waqfs and Foundations under Sharīʿah Law and Positive Law Legislated in Bosnia and Herzegovina]. (MA ), University of Sarajevo, Sarajevo. Ćeman, S. (2008). Vakufi i fondacije u svijetu i kod nas (sličnosti i razike). Glasnik, December(7-8), 627-641. Dafterdar, H. (2009). Towards Effective Legal Regulations and Enabling Environment for Awqaf. Paper presented at the Waqf Laws and Management: Reality and Prospects, Kuala Lumpur. Dobrača, K. (1976). Vakufname u GHB biblioteci. Anali GHB biblioteke (Vol. IV). Sarajevo: GHB biblioteka. Durmišević, E. (2002). Uspostava i pravni položaj Rijaseta Islamske zajednice u Bosni i Hercegovini: 1882-1899: Magistrat. El-Buhari, M. i. I. (2009). Sahihu-l-Buhari: Buharijeva zbirka hadisa (E. Ljevaković, H. Popara, M. Mehanović, Š. Ramić, H. Mehanović & A. Adilović, Trans. Vol. 2). Sarajevo: Visoki saudijski komitet. El-Munziri. (2004). Muslimova zbirka hadisa: sažetak (M. Mrahorović, M. Prljača, N. Karaman, J. Karaman & A. Mujezin, Trans.). Sarajevo: El-Kalem. Esmaeili, H. (2009). The Relationship between the Waqf Institution in Islamic Law and the Rule of Law in the Middle East. Paper presented at the Waqf Laws and Management: Reality and Prospects, Kuala Lumpur. Handžić, A. (1983). Husrev-begov vakuf na prelazu iz XVI u XVII stoljeće. Anali GHB biblioteke (Vol. IX-X). Sarajevo: GHB biblioteka. Hrvačić, E. (2000, December). Restitucija i njeno pravno utemeljenje [Restitution and Its Legal Origins], [Tuzla, Bosnia and Herzegovina]. Hikmet 9-12, 265. Ibn Ābidīn. Radd al-Muhtār alā al-Durr al-Mukhtār, (Vol. 3). Beirut: Dār al-Maktab al-Ilmiyyah. Karcić, F. (1983). Međunarodnopravno regulisanje vakufskih pitanja u jugoslovenskim zemljama [Solving the Issues of Waqf by International Law in the States of Yugoslavia], Anali GHB biblioteke (Vol. IX-X, pp. 141-154). Sarajevo: GHB biblioteka. Karcić, F. (1999). The Bosniaks and the Challenges of Modernity, Late Ottoman and Hapsburg Times. Sarajevo: El-Kalem. 15
16. Ko štović, N. (1995). Sarajevo između dobrotvorstva i zla. Sarajevo: El-Kalem. Mahmud, M. W., & Shah, S. S. (2009). Optimization of Philanthropic Waqf: The Need for Maqasid-based Legislative Strategies. Paper presented at the Waqf Laws and Management: Reality and Prospects, Kuala Lumpur. Mulalić, H. M. (2001). Institucija vakufa u BiH. Sarajevo: Svjetlost. Obolensky, D. (2004). The Bogomils: A Study in Balkan Neo-Manichaeism. Cambridge: Cambridge University Press. Omerdić, M. (1999). Prilozi izućavanju genocida nad Bošnjacima (1992.-1995.). Sarajevo: El-Kalem. Oxford Advanced Learner’s Dictionary. (2007) (7th ed.). Oxford: Oxford University Press. Saleem, M. Y. (2009). Towards Institutional Mutawallis for the Management of Waqf Properties. Paper presented at the Waqf Laws and Management: Reality and Prospects, Kuala Lumpur. Salikić, M. (2001). Ustavi islamske zajednice [Constitutions of the Islamic Community]. Sarajevo: El-Kalem. Štulanović, M. (2004). Urf: običaj kao pomoćni izvor šerijatskog prava, s osvrtom na BiH. Bihać: IPA. Talić, Š. (1996). Stotinu trideset godina vakufske bolnice. Preporod, 14(597), 6. Trakić, A. (2012). A Legal and Administrative Analysis of Inalienable Muslim Endowments (Awqaf) in Bosnia and Herzegovina. Islamic Civilizational Review (ICR), 3(2), 337-354. Tuhmaz, A. a.-H. M. T. (1424/2003). Hanefijski fikh [Fiqh of Abu Hanifah] (A. Purdić, Z. Hasanović & M. Mehanović, Trans. Vol. 2). Sarajevo: Haris Grabus (translated from arabic by Ahmed Purdić, Zuhdija Hasanović & Muhamed Mehanović). Vakufska direkcija. (2010). Vakufi u Bosni i Hercegovini: historijat, trenutno stanje i perspektive. Sarajevo: Islamska zajednica u BiH – Vakufska direkcija Sarajevo. Vakufska direkcija. (2011, 22. juni). Naučni skup Vakufi u Bosni i Hercegovini, Sarajevo. 16 View publication stats