Article in the "university Majlis"- Vol. VII 1957-58
For twenty five years, i.e. from 1931 – 1956, the Muslim Community had to wait for a central authority, possessed of the necessary sanction of Muslim public opinion, that would adequately prevent the misappropriation or inefficient management of funds belonging to Mosques and Muslim Charities – properties belonging to God according to the Law of Islam and meant definitely for the use not of the trustees but of the congregation and community.
The Muslim Intestate Succession and Wakfs Ordinance 1931 sought to ensure this through the machinery of courts. In those circumstances, if some one had discovered an instance of mismanagement in respect of a particular mosque and decided to improve matters for the benefit of the community, he would have to spend a good deal of his own time search for the relevant documents and collect the necessary evidence often unaided, sometimes inviting the wrath of local potentates and find the money himself for the experienced lawyers who alone would know how to conform to the set procedure of the courts concerned. Apart from the inherent defects of the Courts of Law carrying out satisfactorily such objectives of Administration, there were also no rules framed that would expedite the settlement of disputes. Besides the Court could not be moved without at least five persons joining in the petition.
Thus the various Governments that were in power during this period of twenty five years failed to safeguard the properties of God for the benefit of the Community. To this situation two factors largely contributed, viz. the interpretation of State neutrality in Religion that was then in vogue, and the apathy that was shown to this problem which had no political value to those in power. The Community itself cannot shirk its responsibility in this matter for it did not exercise that degree of pressure on those Governments for the reforms much needed. The Muslims as usual were divided. Some were definite that no protection should be sought from the Government which could even remotely give room for the State to interfere with their religion for which the Community had made such heavy sacrifices since the advent of the Portuguese in Ceylon. In this sunshine of Muslim sincerity basked those with vested interests – trustees who opposed any kind of supervision over their controlling powers in respect of funds that really did not belong to them. This invigorated them to propagate their views. This combination of the two elements, the sincerely religious and the selfishly inclined, proved formidable throughout this period to those others who wanted legislation that would neither contravene the Law of Islam nor fail public opinion.
The Special Committee appointed in 1933 to go into the working of the Ordinance of 1931 recommended that the Ordinance should be amended before Rules thereunder were framed. Till 1956 there was neither any amendment enacted nor any set of rules introduced. The causes have already been indicated.
The Committees that were appointed during the period 1940 – 1946 could not suggest any legislation that would receive the assent of the Muslims or be in accord with the general will of the Community, primarily because the drafts they produced contained no provision for a Muslim Commissioner as the head of the department proposed. Not that they entirely ignored this solution but they gravely doubted its acceptance by the Government.
After a lapse of five years (i.e. from 1946 – 52 – roughly the period of the first Cabinet of Ceylon) a new Committee was appointed by the then Minister of Home Affairs composed of all Muslim Parliamentarians – Muslim Members of the two Houses of Parliament, Senators and M.P.'s- "to examine the whole question afresh, to receive representations and to recommend legislation for the registration of Mosques and for prescribing the powers, duties and functions of the Trustees of registered Mosques and Muslims Charitable Trusts or Wakfs." The Wakfs Act of 1956 is very largely based on this Committee's recommendations which were supplemented by the amendments suggested by the Select Committee of the Senate.
Of the amendments thus suggested the only Section that was debated was the one relating to the appointment of a Muslim Commissioner. The following Sections of the Wakfs Act – the Muslims Mosques and Charitable Trusts or Wakfs Act, No. 51 of 1956 – deal with this question :-
"2. (1)There may be appointed for the purposes of this Act a Commissioner for Mosques and Muslim Charitable Trusts or Wakfs and such number of Deputy Commissioners for Mosques and Muslim Charitable Trusts or Wakfs and other officers and servants as may be necessary. Such Commissioner, Deputy Commissioners and other officers and servants shall be servants of the Crown in respect of the Government of Ceylon.
(2)A person who is not a Muslim shall not be appointed as the Commissioner or as a Deputy Commissioner.
3.The Commissioners shall, in the exercise of his powers and the performance of his duties, be subject tot the directions of the Board.
6.A person shall be disqualified for appointment as a member of the Board or if so appointed, shall vacate his office as such if he
(a)is not a Muslim, or
(b)is, or becomes, a Senator or a Member of Parliament, or
(c)is, or becomes a trustee of a registered mosque, a Muslim shrine or place of religious resort or a Muslim charitable trust or wakf."
The draft legislation of 1943 did not find acceptance among the Muslims because the Public Trustee was made the chief officer with an Advisory Board of Muslims. This was altered in the draft of 1946 by which the Public Trustee was made the Chairman of this Board without a vote, the Board itself having been converted to an Executive Board. This substantial change did not, however, alter Muslim public opinion. The Government itself at that time was not prepared, even in the special circumstances, to have as Head of this Department one whose essential qualification was that he should not be a non-Muslim.
When the Government finally accepted the principle contained in Section 2 et seq. of the present Act, the strange combination of the sincerely religious and the selfishly inclined was broken and the passage of the Bill should thereafter have been quite smooth.
But opposition came from an altogether different quarter – sincere friends of Muslims who unfortunately did not understand or appreciate the Muslim point of view on a matter that vitally affected the community. Objections were raised primarily on the ground that a Secular State should not take into consideration the religious faith of a candidate in making an appointment to a public office even though that particular office was intimately associated with religion and that such an appointment would contravene Article 29 (2) (c) of the Ceylon (Constitution) Order in Council. The legal opinion obtained from Dr. H.W. Tambiah, Q.C, and Mr. A.M. Ameen, Advocate is reproduced below as an Appendix on account of its value in connection with the question of fundamental rights, etc. that is being discussed today.
The following Section in the Madras Hindu Religious and Charitable Endowments Act (XIX of 1951) lends support to the view that just as a professional qualification is required for the performance of professional duties, e.g. a doctor or an engineer, a religious qualification is equally necessary for a public officer dealing with the management or properties of temples, churches or mosques and that the special circumstances obtaining in many of the Eastern countries in their present stage of political evolution call for suitable and satisfactory modification of customs and practices associated with the West, e.g. the British Parliamentary system of Government.
"8.The Government shall appoint the Commissioner and such number of Deputy and Assistant Commissioners as they thing fit.
9.The Commissioner, every Deputy or Assistant Commissioner and every other officers or servant appointed to carry out the purposes of this Act, by whomsoever appointed shall be a person professing the Hindu religion, and shall cease to hold office as such when he ceases to profess that religion."
R e f e r e n c e s
(Official Publications)
(1)Debates in the Legislative Council of Ceylon. Feb: 3, 1931.
(2)Report on the Muslim Intestate Succession and Wakfs Ordinance No. 10 of 1931. Sessional Paper XXV of 1935 published by the Ceylon Government Press, October 1935.
(3)The Ceylon Government Gazette – Extrordinary 9, 163 of August 28, 1943 containing the draft Ordinance re registration of mosques, etc.
(4)The Wakfs Act No. 29 of 1954 of India.
(5)Hindu Religious Trusts and Temporalities – A Bill presented to the House of Representatives in June 1955. (Bill 4)
(6)Wafks Bill presented by the Minister of Home affairs. Ordered by the Senate to be printed June 26, 1956 (Bill 4)
(7)Wakfs Bill sponsored by the Parliamentary Secretary to the Minister of Home Affairs ordered by House of Representatives to be printed September 20, 1956. (Bill 25)
(8)House of Representatives Hansard Vol. 27 No. 6 or 23rd October, 1956.
(9)Senate Hansard Vol. 10. Session 1956 – 7.
(10)The Administration Report of the Acting Commissioner of Wakfs published June 1958 by the Government Press, Ceylon.
(11)The Ceylon Law Weekly Volume XL 1950, page 81.
a p p e n d i x
The question for determination is whether Clasuse 2, sub-clause 2 of Part I, of the proposed Act to provide for the registration of Mosques, etc. Will be null and void in view of the provisions of section 29 (2) (c) of the Ceylon (Constitution and Independence) Orders in Council 1946 and 1947.
Clasuse 2 (2) of the proposed Act reads as follows : "a person who is not a Muslim shall not be appointed as the Commissioner or as a Deputy Commissioner," It has been contended that this provision is ultra vires in view of Section 29 (2) (c) which reads as follows :-
"29(1)Subject to the provisions of the Order Parliament shall have power to make laws for the peace order and good government of the Island.
(2)No such law shall
(c)confer on persons of any community or religion any privilege or advantage which is not conferred on persons of other communities or religions;"
The argument presumably is that since Muslims alone are made eligible for that post which would bring a salary and other rights the legislature is conferring on the Muslims a privilege or advantage which is not conferred on persons of other communities or religious.
Strangely no objection is said to have been taken to the constitution of an all Muslim Wakfs Board under Sections 5 and 6 of the same Bill whose Members are also eligible for certain remuneration under the regulations to be framed in terms of Section 54 (2) (b) of the Bill. By parity of reasoning it may be contended therefore that if the provisions relating to the Muslim Wakfs Board which confers on the Muslims a percuniary advantage and other privileges not offered to others, are valid then this Section 2 (2) cannot be invalid.
Under the Muslim Marriage and Divorce Act No. 13 of 1951 only male Muslims are eligible to be appointed as Quazis and members of the Board of Quazis (Vide Sections 12 (1), 14 (1), 15 (1) of Act No. 13 of 1951). The holders of these posts are entitled to be remunerated from the public funds (Vide regulation Nos. 62, 64 of the Muslim Marriage and Divorce Regulations, 1953). It has not been suggested that this legislation is obnoxious to the provisions of Section 29 (2) (c).
In Prafulla Kumar Mukherjee and others versus Bank of Commerce Ltd. Khulna (1947) 34. A.I.R. (Privy Council) page 60 the question was whether certain sections of the Bengal Money – Lenders Act 10 of 1940 were ultra vires as it contained provisions relating to Banking – a subject coming under the legislative powers of the Federal Legislature only by the provisions of the Government of India Act 1935. The Provincial Legislature had power to make laws re money-lending but not Banking. In holding that the Act was not void the Privy Council observed : "It is not possible to make a clean cut between the powers of the Federal and Provincial Legislatures. They are bound to over-lap and where they do the question to be considered is what is the pith and substance of the impugned enactment and in what list is its true nature and character to be found."
The same principle of ascertaining the true character of the questioned legislation was emphasised in Attorney-General for Ontario v. Reciprocal Insurers and others (1924) A.C. 328. The Privy Council said, "It has been formally laid down in judgements of this Board, that in such an inquiry the Courts must ascertain the "true nature and character" of the enactment – Citizens' Insurance Co. v Parsons – its "pith and substance" – Union Colliery Co., of British Columbia v. Brydon;"
In the case of Govindan Sellappah Nayar Kodakan Pillai v. Punchi Banda Mudannayake that (54 N.L.R. 433) where the question was whether the Citizenship Act No. 18 of 1948, Ceylon Parliamentary Elections Amendment Act No. 48 of 1949, Indian and Pakistani Residents (Citizenship) Act 3 of 1949 contravened Section 29 (2) of the Ceylon (Constitution and Independence Orders in Council) 1946 and 1947, the Privy Council adopted the same aforesaid principle. Lord Oaksey said, "But in their Lordships' opinion the question for decision in all these cases is in reality the same, namely what is the pith and substance a sit has been called or what is the true character of the legislation which is challenged.. Is it in the present case legislation on citizenship or is it legislation intended to make and making Indian Tamils liable to disabilities to which other communities are not liable," although the said Legislation had admittedly the effect of depriving large numbers of Indians of citizenship yet it was held on the above basis that the Acts were intra vires of the Ceylon Legislature.
The "Pith and substance" or the true nature of the proposed legislation to govern mosques and Wakfs is the setting up of machinery for the proper administration of those institutions and not to confer an advantage or privilege in favour of the Muslim Community. The provision contained therein to appoint Muslim Commissioners is to ensure the successful working of this Act by bringing in a person or two who would have intimate knowledge of those matters and the necessary sympathy and understanding.
It cannot therefore be said that Section (2) 2 is intended to confer an advantage or privilege on persons of the Muslim community which is not conferred on others.
In the interpretation of statues judicial notice ought to be taken of such matters as the reports of Parliamentary Commissions and of such other facts as must be assumed to have been within the contemplation of the Legislature when the Acts in question were passed. (see 54 N.L.R. 433). The Provisions to appoint Muslims as Commissioner and Muslims as members of the wakfs Boards were included in the Bill because of the representation of the Muslims that otherwise it would offend against certain provisions of Islamic Law.
Therefore in our view clause 2 sub-clause 2 of the proposed legislation to govern Muslim Mosques and Wakfs is not ultra vires.
Sgd. A.M. Ameen
Sgd. H.W. Tambiah.
11th September 1956
A d d e n d u m
Articles 16 (1) to (5) of the Constitution of India, part III of Fundamental Rights are reproduced below on account of their relevance to the provision of a Muslim Commissioner in the wakfs Act of Ceylon.
16.(1)There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State.
(2)No citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated against in respect of, any employment or office under the State.
(3)Nothing in this article shall prevent Parliament from making any law prescribing, in regard to a class or classes of employment or appointment to an office under any State specified in the First Schedule or any local or other authority within its territory, any requirement as to residence within that State prior to such employment or appointment.
(4)Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State.
(5)Nothing in this article shall affect the operation of any law which provides that the incumbent of an office in connection with the affairs of any religious or denominational institution or any member of the governing body thereof shall be a person professing a particular religion or belonging to a particular denomination.