Editors’ Note: Launching HistPhil’s forum on waqfs, Nurfadzilah Yahaya introduces her new book, Fluid Jurisdictions: Colonial Law and Arabs in Southeast Asia (Cornell University Press, 2020) In this presentation of Fluid Jurisdictions, Yahaya notes that: “While scholarship on the history of human generosity is haunted by discussions of altruistic ends and self-regarding motives, the specific history of colonial waqfs underscores that the ultimate patron was always the colonial elite.”

Published this month, my book, Fluid Jurisdictions: Colonial Law and Arabs in Southeast Asia (Cornell University Press, 2020) describes how colonial administration of philanthropy, specifically through the implementation of various distorted versions of the Islamic waqf, not only rooted the property of diasporic Muslims but also routed their funds towards the well-being of the colony. It begins with the premise that some Muslim colonial subjects refashioned themselves under European colonialism as elite members of society even as others were subjugated to the extent of living in abject poverty. From the nineteenth century onwards, continued heavy reliance on legal institutions known as waqfs transformed systems of philanthropy throughout the Muslim world.  Litigation surrounding waqfs illuminates how in practice waqfs have deviated from the aims and intentions of testators and settlors who established them.

Rooted since the ninth century, waqfs are Muslim endowments that begin with the alienation of revenue-generating property with the principal remaining inalienable while its revenues are disbursed for a pious purpose. In order to establish a waqf, Muslim settlors would sequester their property such that it became perpetually inalienable, and appoint a trustee or fiduciary to manage it. Historically, waqf norms and ecosystems have constantly been changing in subtle and not-so-subtle ways under different regimes; colonialism abruptly transformed the institution of waqfs mainly through the application of, in the case of British Empire, the English Common Law against Perpetuities. Waqfs historically facilitated the transmission of wealth across generations, while also providing public welfare in the form of schools, mosques, hospitals, hostels, public drinking fountains independent of the state. Restrictions presented by English Common Law placed the very concept of charity at the centre of waqfs because only waqfs deemed charitable could exist perpetually. As a mode of charity, waqfs potentially challenged colonial jurisdiction on a conceptual level; the only thing that was allowed to perpetually exist was colonial rule after all. While scholarship on the history of human generosity is haunted by discussions of altruistic ends and self-regarding motives, the specific history of colonial waqfs underscores that the ultimate patron was always the colonial elite.

Usually, the intentions of founders of waqfs in the Muslim world were not thoroughly investigated by legal authorities until there were signs of corruption, incompetence or neglect. This was the case for colonial waqfs as well with the major difference being that whenever there was a case, colonial judges would take the opportunity to route the funds for public use instead. Over time, they determined that for a waqf to be charitable in British colonies, its beneficiaries had to be general society beyond one’s own family. Colonial judges also required waqf deeds to have concrete deliverable objectives in order to exist in the colonies. Prayers for the dead, for example, was something that colonial judges repeatedly deemed unenforceable. On the whole, because colonial judges enthusiastically tarried with Islamic law of waqfs in order to administer these religious institutions, they applied a cy pres doctrine to approximate testators’ intentions in line with Islamic law but this also meant that waqfs came yet under more intense scrutiny.

Social crossroads

Waqfs long have been living institutions adapting to their immediate surroundings and the needs of communities that they served. In this respect, colonial waqfs were no exception. For example, the rise of the colonial port-city of Singapore led to an upsurge in population due to considerable emigration from the region, which in turn, exacerbated the problem of widespread poverty encouraging rich merchants to establish waqfs. The legal case Re: The Shrine of Habib Noh in 1952 exists in an era of “supercharged charitable giving” to borrow a phrase by Darren Walker, the current president of the Ford Foundation, especially common in times of economic injustice. The legal judgement, written by Judge Justice Taylor was published by the Malayan Law Journal a year later.

Around 1870, a man known as Habib Noh Al-Habshi died in Singapore. He was of Arab descent, and regarded as a saint among many in the port-city and the broader region of various ethnicities and religious faiths according to Taylor. Born in Penang, Habib Noh reportedly walked the length of the Malay peninsula to Singapore and chose the summit of a small steep hill called Mount Palmer in the southern part of the city near Tanjong Pagar Dock as his home. He chose the site of his own burial near his house by planting a stick wrapped in white cloth on the ground where his tomb now lies. When the Sultan of Johore wanted his tomb to be moved to the northern part of the island, “the body refused to be lifted from its resting place” a reporter wrote in January 1950. An endless stream of visitors – both transient and local residents comprising mainly Malays, Javanese, Indians, Arabs and Chinese – commemorated the anniversary of his death for days in 1950 as they did each year. Haj pilgrims from China and Netherlands Indies which later became Indonesia also visited his tomb on their way to Mecca.

According to the waqf deed in 1880, the site of the shrine was conveyed to a body of trustees. Between 1880 and 1905, a massive iron chest with a slot in the lid was placed in the shrine to collect worshippers’ contributions. In 1905, British authorities granted the site of the steps giving access to the shrine to a new set of trustees who were successors to those appointed in 1880. These new trustees made periodic payments from the iron chest for maintenance and the mosque imam’s salary. Each year, the amount collected greatly exceeded what was necessary for these purposes so it became usual to distribute much of the surplus to descendants of Habib Noh, without any regard to the question of whether they were “affluent or needy.” But in 1952, the judge ruled that they were no longer entitled to the funds “irrespective of indigence.”

Private/Public Binary

Waqfs lie at the intersection of kinship, family and economic relations. The colonial waqf highlighted this fuzziness even more since subjects’ desires for connectedness within family and community was continually juxtaposed with property value and the real estate market in the colonies. From the late nineteenth century onwards, the stark bifurcation of waqfs into public and private waqfs, with the former meant for members of the public and the latter meant for family members, prevented testator’s descendants from having any say in the ways that public waqfs would be administered. Administration of public waqfs fell to the Mohamedan and Hindu Endowment Board appointed by the British colonial government from 1905 onwards, with British court judges at the helm of policy-making when litigation occurred. The site of one of the earliest churches in Singapore, St. Andrew’s Cathedral, began as a waqf designated by the testator to be a “place of worship” that was subsequently elected to be a cathedral by East India Company authorities in 1823 to the chagrin of some of the donor’s descendants from the Arab Muslim Aljunied clan. For descendants of Habib Noh, their marginalization came with actual economic consequences so they argued in court that “donors (to the shrine) have invoked the aid of the saint who is commemorated and specifically intend…that his descendants shall benefit from their gifts, as do the descendants of certain other saints whose tombs are places of pilgrimage.” The judge however determined that proof of indigence was the only way descendants court benefit from donations and gifts.

Surplus

In many ways, the colonial waqf shows how the boundaries between welfare developmentalism and colonialism are notoriously blurry. Although waqfs were avidly established by colonial subjects, the story does not conform to a straightforward narrative of how anti-colonial welfare programmes accumulated strength. Far from it, one could cast the establishment of waqfs as complicity in colonial economic policies, especially with regards to erosion of state welfare for colonial subjects. The system of economic distribution, and deeper ills produced by colonial profiteering was conveniently obscured by the establishment of waqfs too. There was no aspiration by anyone for true structural reform. Economic development in the colony was rapid and chaotic with few regulations to hamper anyone from making as much money as they could to achieve economic surplus for the colony.

In fact, surplus funds enabled spontaneous giving in times of emergency when colonial contingencies required it such as in troubled economic times, as Judge Taylor tellingly wrote in his judgment for Re: The Shrine of Habib Noh. And therein lies the virtue of having reserves on hand for any public waqf. He explained “that the Board should dispose of them by outright gifts to needy members of the class described, treating such surpluses not as part of a permanent or continuous fund but as windfalls, to be disposed in different ways according to the varying needs of different years.” Taylor thus argued in the 1950s that the value of colonial waqfs should lie in being a source of economic reserves in times of crises, and by extension a stopgap measure for colonial legitimacy, rather than an effective long-term measure for the amelioration of society. I talked more about this during my recent book talk on September 15 2020 at the Program in Islamic Law at Harvard Law School.

-Nurfadzilah Yahaya

Nurfadzilah Yahaya, assistant professor in the History Department at NUS, is a legal historian of the Indian Ocean. Prior to NUS, she was an Early Career Fellow in Islamic Studies at Washington University in St. Louis. Her book Fluid Jurisdictions: Colonial Law and Arabs in Southeast Asia is published by Cornell University Press (2020). Her articles have appeared in Law and History Review, Journal of Women’s History, Indonesia and the Malay World and Muslim World.

References:

Aljunied, Hussain bin Haroon (Syed) Special Project, Accession Number 001297 National Archives of Singapore. September 2 1991.

“Habib Noh’s Tomb refused to be lifted” Sunday Tribune (Singapore), 15 January 1950, 15.

Re Shrine Of Habib Noh [1957] Malayan Law Journal 139.

Payne, Alexander, Nat Faxon, Jim Rash, Jim Burke, Jim Taylor, George Clooney, Shailene Woodley, Amara Miller, Nick Krause, Beau Bridges, Judy Greer, and Kaui H. Hemmings. The Descendants. Beverly Hills, CA: 20th Century Fox Home Entertainment, 2012.

Economist Radio, “The Economist Asks: Darren Walker.” Anne McElvoy interview with Darren Walker, Economist, August 6 2020 https://www.economist.com/podcasts/2020/08/06/can-philanthropy-help-save-the-american-dream?fsrc=scn/tw/te/bl/ed/theeconomistasksdarrenwalkercanphilanthropyhelpsavetheamericandreampodcasts

Yahaya, Nurfadzilah. Fluid Jurisdictions: Colonial Law and Arabs in Southeast Asia. Ithaca: Cornell University Press, 2020.