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

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$Connected Minds,Connected Cultures:\ Connected Minds$

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
made over to the plundering hands of the non-Godfearing and evil following Mutawallies, and theMasjids and the other places of worship have merged into the depths of oblivion’ 144Finally, in 1923 the colonial government enacted the first legislation to actually regulate awqaf inBritish India (including what is now Pakistan). The Mussalman Wakf Act, 1923 -- which stillcontinues in force today -- was promulgated for the stated purpose of making ‘provision for thebetter management of wakf property and for ensuring the keeping and publication of properaccounts in respect of such properties.’ 145 Toward that end, the 1923 Act requires that themutawalli of every religious, pious or charitable waqf, within six months of its creation, mustfurnish to the local court a ‘statement of particulars’ containing the following:(1) a description of the waqf property sufficient for identification;(2) the gross annual income from such property;(3) the gross amount of such income which has been collected during the past five years or,if shorter, since the creation of the waqf;(4) the amount of Government revenues, local taxes and rents annually payable with respectto the property;(5) an estimate of expenses annually incurred in realizing the waqf income;(6) an accounting of amounts set apart under the waqf for salary of the mutawalli andallowances to individuals, for purely religious purposes, for charitable purposes, and forany other purposes; and(7) ‘any other particulars which may be prescribed.’ 146The statement of particulars must be accompanied by a copy of the waqf deed or other instrumentcreating the waqf; if none is available, then the statement must also contain ‘full particulars’ ofthe ‘origin, nature and objects’ of the waqf. 147 Once the statement of particulars has been filedwith the court, the 1923 Act further provides that the court shall ‘cause notice thereof to beaffixed to some conspicuous place in the Court-house and to be published in such other manner,if any as may be prescribed.’ 148 After such public posting, any person may petition the court foran order requiring the mutawalli to provide further information, and the court has specificjurisdiction to so order. 149Continued transparency and accountability is also a prominent feature of the 1923 Act. Inaddition to the initial statement of particulars, the mutawalli must file with the court an auditedannual statement of accounts ‘of all moneys received or expended by him on behalf of the wakfof which he is the mutawalli.’ 150 And the audited annual statement of accounts (as well as theinitial statement of particulars) must be signed and verified in the same manner as pleadings filedin accordance with Code of Civil Procedure. 151144 Ashan-ul-Akbar (Calcutta), 24 October 1902, 7, quoted in R.Upadhyay, above n 135, quoting fromS. Khalid Rasid, Wakf Administration in India (1978), 20.145 The Mussalman Wakf Act, 1923, The Pakistan Code (1966), Volume VII, from 1920-1923 bothinclusive, 686-7.146 Ibid 688 [3.(1)(a)-(g)].147 Ibid 689 [3.(2)].148 Ibid 689 [4].149 Ibid.150 Ibid 690 [5].151 Ibid 691 [8].27
Page 1 and 2: INTERNATIONAL JOURNAL OF CIVIL SOCI
Page 3 and 4: Letter from the EditorDear Readers,
Page 5 and 6: TABLE OF CONTENTSIJCSL EDITORIAL BO
Page 7 and 8: ARTICLESTHE ROLE OF THE ISLAMIC WAQ
Page 9 and 10: ‘a bewildering array of the good,
Page 11 and 12: [a]lthough civil society organizati
Page 13 and 14: to integrate economic development a
Page 15 and 16: duty.’ 55 In contrast to zakāt,
Page 17 and 18: of such venerable educational insti
Page 19 and 20: avoiding the appearance of impiety,
Page 21 and 22: …’ 101 Throughout the Islamic w
Page 23 and 24: partisan judiciary, a vigilant pres
Page 25: number of awqaf for myriad public p
Page 29 and 30: prescribed by law. 159 Like the 192
Page 31 and 32: property is not a waqf property or
Page 33 and 34: VIII. REFERENCESA. Articles/BooksAh
Page 35 and 36: Meidinger, Errol E, ‘Environmenta
Page 37 and 38: STUDENT ARTICLESINTERNATIONAL INSTR
Page 39 and 40: interest for the Balkan, minorities
Page 41 and 42: dimension is emphasized with Articl
Page 43 and 44: The Copenhagen document deals with
Page 45 and 46: Historically, the 1946 Constitution
Page 47 and 48: service, or sometimes 239 special f
Page 49 and 50: This position by the Greek governme
Page 51 and 52: a member of the civil state, entitl
Page 53 and 54: Civilization" with headquarters in
Page 55 and 56: term "vinozhito"(rainbow) could pos
Page 57 and 58: declare the party as unconstitution
Page 59 and 60: The cases analyzed below, exemplify
Page 61 and 62: ECHR, and based upon this analysis,
Page 63 and 64: Jabuka in particular, recognized as
Page 65 and 66: the minority still face problems in
Page 67 and 68: BibliographyBooks:BLACK’S LAW DIC
Page 69 and 70: Vlassis Vlassidis, Veniamin Karakos
Page 71 and 72: THE DIFFERING TAX TREATMENT OF INVE
Page 73 and 74: …any person who, for compensation
Page 75 and 76: the assets under management. 437 Th
Page 77 and 78:
As a preliminary matter, a taxpayer
Page 79 and 80:
Commissioner further summarized the
Page 81 and 82:
number of itemized returns. These t
Page 83 and 84:
fiduciary duty implications applica
Page 85 and 86:
operate as a fraud or deceit upon t
Page 87 and 88:
Policy ConsiderationsIn light of th
Page 89 and 90:
more advantageous to address altern
Page 91 and 92:
STUDENT NOTESBUILDING CONSUMER CAPA
Page 93 and 94:
CASE NOTESC A N A D I A N S U P R E
Page 95 and 96:
minimum constitutional protection t
Page 97 and 98:
objective of ensuring safety in sch
Page 99 and 100:
Turning to its impact on courts and
Page 101:
tribunals to ensure that an appropr
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Volume IV, Issue II (April 2006) - Columbus School of Law

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