Subsídios e instrumentos de fomento

OF AWQAF IN

B

Thewaqf sector in the country represents an underdeveloped, underutilized segment of the national wealth, which awaits proper and better utilization. The problems facing the country’swaqf institutions are numerous and of

enormous magnitude. Some of the major challenges currently facing the

waqf sector in Bangladesh are discussed in what follows.

6.4.1 Inadequate Manpower

As cited earlier, compared to the magnitude of the total number ofwaqf

properties, a very small number of officials manage theawqaf sector. Only 98 officers and employees manage nearly 100,000waqf properties through- out the entire country. For the proper administration and management of such a huge number ofwaqf properties scattered all over the country the

awqaf sector needs a sizable number of qualified staff. Bangladesh has 64 administrative districts. Owing to a lack of manpower, only 29 district offices overseewaqfproperties in all 64 districts. These district offices have only one supervisor to cover nearly 800waqf properties. If and when that person goes to audit or inspect a waqf property, the office of the supervisor remains closed. The divisional offices of Dhaka, Khulna, Rajshahi, and Chittagong divisions have been brought under the direct control of headquarters, again owing to a lack of manpower (Islamn.d.).15

6.4.2 UnregisteredWaqf Properties

Although section 47 of the ordinance requires that“allwaqfs existing at or created after the commencement of this Ordinance shall be enrolled at the office of the Administrator,”more than one-third of the totalwaqf proper- ties in Bangladesh remain unregistered. According to the survey conducted by Census of Waqfsin 1986, the number of total waqf property in Bangladesh was, 150,153waqf properties in the country, among which only 97,046 were registered, 45,607 were verbal, and the remaining 7,940 were traditionally acquired. Thus, as many as 53,547waqf properties are not registered. The reason for not registering thewaqf properties is not known. However, it could be due to various factors. First, the existence of theWaqf Administration is not known to many people, particularly in rural areas. Second, the underregistration might represent a deliberate attempt to evade being controlled by theWaqf Administration. Third, it might be an attempt to evade payment of the 5% levy imposed on all registeredwaqf

properties. As such, theWaqf Administration has no control over these properties.16 This is a very disappointing state of affairs that must be addressed with serious measures. Bringing these properties under the 84 A.U.F. AHMAD AND M.F. KARIM

direct control of the office of the administrator would, among many other benefits, definitely increase thewaqf income in the country.

6.4.3 Illegal Occupation and Misappropriation of Waqf Properties Many awqaf properties are illegally occupied by private individuals or organizations and groups or even by government agencies. It has been reported (to mention just one prominent example) that the country’s police headquarter in Dhaka stands onwaqf land.17This area (that the police HQ occupies) is in the heart of the capital city. It could be developed into a huge profit-making business enterprise. Manywaqf properties are underutilized, for example, they are leased at a very low rental rate, while many others are being misappropriated.18

There are innumerable cases of neglect and encroachments and illegal occupations. There is hardly any mechanism for detecting detect such things and recover property in and outside courts of law because there are no legal provisions exist to enable this, nor does exist any social pressure for such recoveries. Adequate and competent staff is lacking, and as a result the lonewaqf committee for the whole country does not have the resources to make frequent and thorough inspections to prevent the mismanagement ofwaqf properties. The 5% contribution fromwaqf

income that is diverted to the committee has not benefited the country very much. Nearly the entire amount is spent on administration. Nor is the contribution realized effectively and very large realizable balances have reportedly accumulated. Therefore, at the very least it can be said that the

waqf committees of Bangladesh have delivered no service of value for the country; the same may be said of themutawallis.

6.4.4 Uncollected Arrears

The recovery of arrears of contributions is another systemic problem. The ordinance provides for this recovery under its section 71. Moreover, it provides a punitive method of collecting contributions. But despite these provisions, huge amounts of arrears have piled up in recent years. To put the finances of the Waqf Committee on an even keel, unpaid contribu- tions must be speedily recovered. In this respect, the experiences faced and procedure adopted under theIndian Waqf Acts of 1995may be taken into consideration (WIR 1976).

6.4.5 Operational Inefficiency and Problem of WaqfDisputes Hundreds ofwaqf-related disputes are adjudicated by the various courts and the OWA.19This number increases every day. Thewaqf administrator per- forms quasi-judicial functions. Disputes related to illegal possession or transfer ofwaqf properties, misappropriation, improper management, and so on, are referred to thewaqf administrator. He conducts hearings like a judge and hands down a judgment that is binding unless it is overruled by an appeals court. In cases of illegal possession or transfer of awaqf property or illegal interference in the management ofwaqf properties, thewaqf administrator enforces his order with the help of the local administration of the government at the district level. However, as mentioned earlier, compared to the total number ofwaqf properties in the country, a very small number of officials manages thewaqf sector, so theWaqf Administration is overburdened with not only a large number of cases but also many other relevant matters that require attention. This results in slow and inefficient operations.20

The statutory setup of the Waqf Administration in Bangladesh is empowered to handle and administer awqaf. But in many instances,

mutawallisbring waqf cases to court, where every trick is employed to secure decisions in a way that is convenient to the parties. The courts do not have the means to conduct a proper investigation into the affairs ofwaqf

properties and so rely on records that are tampered with and evidence given by hired witnesses. TheWaqf Administration is thus hamstrung. However, sadly enough, theWaqf Administration is also accused of handing down less than impartial and just decisions, and charges of bribery againstwaqf

officials are not uncommon. In many cases, the integrity ofwaqf officials has been call into question. The statutory checks imposed to investigate corrupt practices are found to be inadequate and the amount of autonomy granted to theWaqf Administration is one of the causes of cover-ups.

6.4.6 Absence of Provisions inWaqf Ordinance of 1962Relating to the Development ofAwqaf

TheWaqf Ordinance of 1962 contains no provisions concerning the devel- opment ofwaqf properties. This is a stagnant situation owing to which many

waqf properties are not utilized fully or remain idle. Those properties that are in use are underutilized, that is, they are not developed to their optimum level. The IndianWaqf Act of 1995, for instance, regards the issue of development ofwaqf properties as a function of theWaqf board of every state in India to 86 A.U.F. AHMAD AND M.F. KARIM

undertake the development ofawqaf. Section 32 of the IndianWaqf Act of 1995 has the following provisions in its subsections (4) to (6):

(4) Where the Board is satisfied that any waqf land, which is a waqf property, offers a feasible potential for development as a shopping center, market, housingflats and the like it may serve upon the mutawalli of the concerned waqf a notice requiring him within such time, but not less than sixty days, as may be specified in the notice, to convey its decision whether he is willing to execute the development works specified in the notice.

(5) On consideration of the reply, if any, received to the notice issued under subsection (4) the board, if it is satisfied that the mutawalli is not willing or is not capable of executing the works required to be executed in terms of the notice, it may, with the prior approval of the Government, take over the property, clear it of any building or structure thereon, which, in the opinion of the Board, is necessary for execution of the works, and execute such works from waqf funds or from the finances which may be raised on the security of the properties of the waqf con- cerned and control and manage the properties till such time as all expenses incurred by the Board under this section together with interest thereon the expenditure on maintenance of such works and other legit- imate changes incurred on the property are recovered from the income derived from the property: Provided that the Board shall compensate annually the mutawalli of the concerned waqf to the extent of the average annual net income derived from the property during the three years immediately preceding the taking over of the property by the Board. (6) After all the expenses as enumerated in subsection (5) have been recouped from the income of the developed properties, the developed properties shall be handed over to the mutawalli of the concerned waqf.

The absence of a similar provision in the Waqf Ordinance of 1962is a serious omission and is seen as an impediment to the development ofawqaf. Manywaqf properties in Bangladesh have considerable potential to be devel- oped into shopping and housing complexes, office space, and residential buildings that may bring in significant income. Likewise, unused cultivable lands may be brought under cultivation and dairy farming.Waqf properties in hilly areas like Chittagong and Sylhet could be used for tea plantation, while those in coastal areas could be used forfishery and salt industries. The income generated from these projects could then be used for the benefit of waqf

6.4.7 Integrity ofMutawallis and Their Qualifications Cases of dishonesty on the part of somemutawallis are not uncommon.21 Dishonesty may be in the form of incorrect accounts of income, fabrication of bogus vouchers for amounts not spent, subscription not accounted for, illegal alienation ofwaqf properties, rents at high rates obtained from the tenants but receipts for lower amounts issued and the balance pocketed as black money, and so on. The ordinance has a number of provisions to prevent such occurrences. For instance, amutawalliis debarred from mak- ing a compromise in any suit or proceedings with respect to any waqf

property without the administrator’s approval and the sanction of the trying court.22 But very often these statutory checks prove inadequate.23 The ordinance provides for the imposition offines on an erringmutawalli. It is, however, to be noted that the ordinance gives the authority to impose

fines to the law courts,24acting upon a complaint made by the administrator. Thus, in every case of default by amutawalli, a court must be approached where the process of complaints, countercomplaints, and explanations gen- erally consume much time and money. This is why, more often than not, the authorities prefer not to enforce penal provisions. Since there is no hard and fast rule for qualifications that a mutawalli needs to hold, nor is its office ordinarily hereditary it is quite natural many mutawallis of waqf estates are near illiterate or not educated enough to keep and maintain accounts of income and expenditure. Therefore, anyone can qualify to hold the office of mutawalli even the waqif himself, his children, his descendants, any ordinary person be he a Muslim or non-Muslim can serve as mutawalli. This some- times may open the door to corruption.25

6.4.8 Unauthorized Alienation

The ordinance debarsmutawallis from transferring in any way immova- ble waqf property over a specified period of time without the prior sanction of the administrator. As for the recovery of such property, the administrator mayfile a suit or proceeding in a court under S-83 of the ordinance, which provides:

If there is no mutawalli or the mutawalli refuses or neglects to act in the matter, within a reasonable time, the Administrator may, in his own name, institute a suit or proceeding in a court against a stranger to the waqf or any other person (a) for the establishment of right, title and interest in a waqf 88 A.U.F. AHMAD AND M.F. KARIM

property, or (b) for confirmation of possession of a waqf property, or (c) for the recovery of any waqf property wrongfully possessed, alienated or leased, or (d) for having any waqf property discharged of an encumbrance or obligation wrongfully created, or (e) for the recovery of any money belong- ing to a waqf, or (f) for any other relief in the interest of a waqf he may consider necessary.

Moreover, the general procedure that is usually followed appears to be that, if the mutawallior stranger defies this provision, the administrator may send a requisition to the deputy commissioner within whose jurisdiction the property is located to obtain and deliver possession of the property to him. Upon receipt of the requisition, the deputy commissioner shall take action. Any person aggrieved by the order of the deputy commissioner may prefer an appeal to the district judge within whose jurisdiction the property is located. The decision of the district judge or, when there is an appeal, the decision of the high court shall befinal. This procedure involves delays and costs. Therefore, a tribunal could be set up to handle these matters more efficiently since the provisions in the existing relevant laws of waqf are inadequate and in courts there are hundreds of other cases are in the long queue for hearing for decades, if not years.

6.4.9 Personal Use of Waqf Compensation Money

Complaints are often heard that the compensation money derived from the acquisition ofwaqf properties are kept for the personal use of officials. The ordinance provides that where anywaqf property is acquired under theLand Acquisition Act of 1894 (Act I of 1894)or any other law in force at the time, the compensation money payable for such property shall be paid to the administrator and shall be kept on deposit in theWaqf Fund till it is invested for the purposes stated in subsection (3) of section 74.26 This provision should be reviewed and amended to prevent corrupt prac- tices on the part of the administrator. Such an amendment would surely build public trust in theWaqf Administration in Bangladesh and ensure thatwaqf institutions are above corruption and shady practices.

6.4.10 Lack of Progressive and Innovative Ideas

It is sad to observe that progressive and innovative ideas for the devel- opment and extension ofwaqf properties are sorely lacking, from either

the public or private sector. The great majority of mutawallis and managers do not think in terms of adjusting the objectives of waqf

properties in these changing times.Mutawallis, even those known and believed to be honest, have no concept of property maintenance and development. The idea of investment in humans, that is, upgrading of Muslim human capital through education and training, has not received any attention. Mostwaqf deeds have not built-in provisions for main- taining the property.

This sad state of affairs raises doubts about the efficacy of existingwaqf

legislation, theWaqf Administration that operates under it, and the way in which the management of waqf properties is handled. The problems mentioned earlier are deeply rooted. The Waqf Administration is far from satisfactory and efficient. If the ordinance was enacted to eradicate the evils tormenting the holy purpose of the waqf institution in Bangladesh, it has failed to achieve its purpose. The ordinance under present circumstances does not have sufficient potential to become the modelwaqf legislation in Bangladesh. It must be replaced by a new one. In this respect, a legal and administrative analysis is necessary.

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