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

after total extinction of a family.’ 138 Notwithstanding this perhaps noble attempt to rein in themisuse of this important philanthropic institution -- and even despite concurrence with the PrivyCouncil decision by many Muslim clerics and experts in Islamic law -- powerful politicalinterests (backed largely by the financial resources of awqaf founded by wealthy Muslims)prevailed in the passage of the 1913 Act. As commented by a leading contemporary authority onMuslim philanthropic endowments in British India and modern Pakistan, the late ProfessorGregory Kozlowski, ‘[t]he controversy over endowments also pointed to the possibility thatpolitics sometimes shaped Islam quite as much as Islam shaped politics.’ 139Importantly, perhaps in deference to the powerful Muslim political interests which instigated itspromulgation, the Act carefully avoids any direct conflict with Sharī'ah or fiqh. The Actexpressly defines a waqf as the ‘permanent dedication of any property for any purpose recognisedby the Mussalman law as religious, pious or charitable.’ 140 The Act allows creation of a waqf that‘in all other respects is in accordance with the provisions of Mussalman law.’ 141 And it includes asaving clause expressly providing that ‘[n]othing in this Act shall affect any custom or usagewhether local or prevalent among Mussalmans of any particular class or sect.’ 142Significantly, while the Act declares as valid all family awqaf which ultimately fulfill religious,pious or charitable purposes, it does not exclude any other types of awqaf as invalid. As such, theAct does not interfere with the establishment of religious or purely philanthropic awqaf, nor doesit appear to interfere with the establishment of awqaf for purposes outside its scope. 143 The Actvery simply operates in a very limited and targeted fashion to negate the decision of the PrivyCouncil regarding family awqaf.2. The Mussalman Wakf Act, 1923The subsequent regulation of awqaf in Pakistan following the Privy Council decision and theconsequent validating acts appear to have some positive features as well as some drawbacks.Clearly, some regulation of awqaf -- leading to greater transparency and accountability -- wasnecessary and is good. Under Islamic Rule, mutawallis were supervised by the Kazis, judges inIslamic courts. After establishment of the British Raj, however, the Islamic courts were abolishedand mutawallis no longer feared the strictness and harshness of Islamic law. As was highlightedby the Privy Council decision, misuse of the waqf for personal gain and corruption by mutawalliswas an increasing problem in British India throughout the 18 th , 19 th and early 20 th centuries.Although British colonial policy was generally not to interfere in native religious matters, thesituation worsened to such a point that the colonial government could no longer avoid taking amore active role toward reform. Following the 1857 ‘Mutiny’, a number of waqf propertieswere placed under British control and, with passage of the Religious Endowment Act, 1863, theseawqaf were transferred to local trustees and jurisdiction for any administrative disputes was givento the British courts. As awqaf grew in wealth and political power (including the ability todeliver financial support and blocks of votes behind ‘friendly’ politicians), however, it becameincreasingly impossible for the British to avoid undertaking more stringent reforms. Even theMuslim press began stridently to call for action, decrying that ‘All Waqf properties have been138 R. Upadhyay, above n 135, quoting from S. Khalid Rasid, Wakf Administration in India (1978), 127.139 Gregory C. Kozlowski, above n 105, 167, quoted in R.Upadhyay, above n 135.140 The Mussalman Wakf Validating Act, 1913, above n 137, 165 [2]: emphasis added.141 Ibid [3]: emphasis added.142 Ibid [5]: emphasis added.143 This might include awqaf established for purely educational purposes or even for purely social orpolitical activism.26