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

Like the waqf validating acts, the 1923 Act avoids direct conflict with Sharī'ah or fiqh, bydefining a waqf as the ‘permanent dedication of any property for any purpose recognised by theMussalman law as religious, pious or charitable.’ 152 Interestingly, the 1923 Act also expresslyexcludes from its definition of waqf, ‘any wakf, such as is described in section 3 of theMussalman Wakf Validating Act, 1913, under which any benefit is for the time being claimablefor himself by the person by whom the wakf was created or by any of his family ordescendants.’ 153 So long as the subject waqf is operating essentially as a family waqf, theregistration and reporting requirements of the 1923 Act do not apply to it. On the other hand, ifthe personal or family benefit of the waqf ends at some point and the waqf reverts to a ‘religious,pious or charitable’ purpose, then the mutawalli is required to register the waqf as such with thecourt and his annual reporting requirements commence. The reasons for this exclusion of familyawqaf are not evident in either the 1923 Act or relevant literature, although it is likely that it wassimply in deference to powerful Muslim clerics or political interests at the time who advocated onbehalf of family awqaf.Possibly unable to completely ignore that considerable institutional corruption and the apparentperversion of Islamic principles of philanthropy and charity were then-occurring in the context offamily awqaf, however, the framers of the 1923 Act did include an initial filing requirementapplicable to family awqaf where ‘the person creating the wakf or any member of his family orany of his descendants is at the commencement of this Act alive and entitled to claim any benefitthereunder.’ 154 Although the continuing annual reporting requirement does not appear to apply tothis latter category of family awqaf -- until and unless the waqf reverts to religious, pious orcharitable purposes -- the added provision at least had the initial effect of greater transparencyand public accountability with respect to family awqaf which existed at the time of the law’senactment.3. The Provincial Waqf OrdinancesThe provisions of the 1923 Act have been criticized more recently as providing ‘relatively looseregulatory oversight’ of waqf affairs. 155 Addressing this concern, various provincial governmentspromulgated ordinances in 1979 which ‘drastically supplemented’ the 1923 Act. 156 While the1923 Act may be seen as a bit loose in its regulation of awqaf, the 1979 ordinances could easilybe said to have gone to the other extreme. One such ordinance, the Punjab Waqf PropertiesOrdinance, 1979, 157 is an example of these ordinances. Significantly, the Punjab waqf ordinanceillustrates the extent to which the provincial governments have undertaken not only morecircumscribed regulation of awqaf, but also the direct control of waqf management in some cases.Much of this regulation is quite broad and gives the government potentially arbitrary powers.The Punjab waqf ordinance states its purpose as providing ‘for the proper management andadministration of waqf properties in the Province of Punjab.’ 158 In conjunction with the 1923 Act,the Punjab waqf ordinance requires that every waqf property in the province be registered, as152 Ibid: emphasis added. Unlike the validating acts, however, the 1923 Act does not contain any ‘saving’language resolving conflicts between the Act and any local or prevalent Muslim custom or usage in favorof the latter. Presumably, the Act -- not Sharī'ah or fiqh -- controls in the event of any such conflict.153 Ibid 688 [2(e)]: emphasis added.154 Ibid 689 [3.(3)(b)]: emphasis added.155 Zafar Hameed Ismail and Quadeer Baig, above n 1, 272.156 Ibid. There are four provincial Waqf Properties Ordinances of 1979.157 The Punjab Waqf Properties Ordinance, 1979 at 07 July2005.158 Ibid [Preamble].28