Volume IV, Issue II (April 2006) - Columbus School of Law

…’ 101 Throughout the Islamic world, ‘Islamic charities emerged as the spread of wealth andinfluence created an elite with the ability and the desire to establish charities.’ 102Unfortunately, concomitant with the rapid growth of institutional Islamic philanthropy, ‘poorgovernance’ also became a problem within the sector -- providing the modern states just theexcuse they needed to step in and expropriate awqaf assets. 103 As Jennifer Bremer dramaticallysummarized in a presentation at the annual meeting of the Center for the Study of Islam andDemocracy:In country after country, the state seized upon these abuses as the excuse it needed tosuppress privately-managed charities. In the name of “reform,” the state moved toassume control over how charitable assets could be used, or to take the revenues for itsown, and then to seize the assets themselves, greatly limiting or even eliminatingprivately-managed charities altogether.… Within the limited scope for dissent available, the elite fought back to maintain theseimportant assets for social and economic power. … In country after country, the periodof contention for control ended with the end of independent Islamic charitableinstitutions as significant institutions for social bridging, justice, or alternative voices tothe state. …The nature of the government in power did not appear to affect this overall progressionfrom emergence to independence to decay and takeover. In the Ottoman empire, thesultan’s position as caliph, and thus defender of the faith, did not protect private charitiesfrom being seized. The Ottoman’s severely secular successor, Kemal Ataturk, continuedthe seizure of private charities begun by his religious predecessors. The sultan’scounterparts in Egypt’s royal family progressively suppressed private charities, but noless aggressively than did their Arab socialist over-throwers. The British colonialpowers worked to limit the power and flexibility of Islamic charities, whether inPalestine or British India, and their efforts were continued and expanded upon by thedevoutly Muslim government leaders of Pakistan. 104It is interesting to observe also that, throughout the Islamic world and throughout time, it does notappear to be Islam itself or Islamic movements -- as a part of civil society -- which are incontention with the state. Instead, it is the strength of the civil society, and the assets it controls,which is the threat to modern states in the Islamic world. As discussed above and in thefollowing section of this article examining regulation of awqaf in Pakistan, this struggle is evenmore pronounced in Asia and is expressed in greater state regulation of the creation, governanceand operation of Islamic philanthropies and charities, such as the waqf. Under the British Raj, forexample, the colonial government in what is now Pakistan initiated a legal structure to regulateawqaf and other endowments. 105 This included requiring disputes be brought before unfamiliarBritish-controlled courts, instead of the traditional religious (local) courts, placing local waqf101 Bremer, above n 37, 12.102 Ibid.103 Ibid.104 Ibid 13.105 An interesting study by the late Gregory C. Kozlowski, Muslim Endowments and Society in British India(1985), asserts that the British, rather than recognizing that Muslim property customs were different in eachcountry and very situation-specific, ‘concocted’ rules out of the Qur'ān and Sharī'ah to apply uniformlythroughout the British Raj -- which actually may have incentivized Muslims in what is now India, Pakistanand Bangladesh to create awqaf in an attempt to preserve their estates by circumventing the new rules.21