Who Guards the Guardians? The Case for Waqf Board Accountability.
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| Author: Tabassum Islam |
If the mutawalli can treat the waqf property as personal for years without intervention, a more troubling question arises: “Who watches the watchman? And can the current accountability framework truly safeguard charitable endowments?”
Understanding Waqf Property
A waqf is the permanent dedication of property by a Muslim
for religious, pious, or charitable purposes recognized under Muslim law.3
For validity, the waqif must be a Muslim, sane adult, and the true owner
of the property; the declaration must be voluntary, irrevocable, unconditional,
and permanent; the subject matter must be tangible; and the purpose must be
lawful.4
Day-to-day management vests in the mutawalli,5the
court-or deed-appointed trustee. He must safeguard the corpus from waste,6
damage,7 or encroachment,8 9apply income in
accordance with the waqf deed court permission or urgent necessity,12
and not delegate his duties without the Administrator'sapproval.13
A Colonial-Era Statute Governing a Modern State
The legal architecture of waqf in Bangladesh remains
substantially that of the East Pakistan Waqfs Ordinance 1962.14 The
ordinance created the office of “Administrator of the Waqf,” who serves as the
principal trustee of every registered waqf estate in the country.15 In
1988, a dedicated Office of the Administrator of Waqf was carved under the
Ministry of Religious Affairs to give the institution operational form, but the
underlying statute has never been comprehensively re-legislated for an
independent, democratic Bangladesh.
This matters because the 1962 Ordinance concentrates an
extraordinary cluster of powers in a single office. The Administrator enrolls
waqf estates 16, can remove a mutawalli for breach of trust17,
appoints auditors and compels production of accounts18, collects a
5%levy on the net income of every listed estate19, and, most
strikingly, may, after a summary inquiry, conclude that an estate has been
"mismanaged" and simply take over its administration, control,
management, and maintenance 20. The Administrator additionally
enjoys magisterial powers under the Code of Criminal Procedure 1898,21 blurring
the line between an administrative regulator and a quasi judicial enforcer.
No comparable private trustee, corporate director, or NGO custodian in Bangladesh
is subject to so few external checks while wielding so much unilateral
authority over third-party assets.
The Accountability Gap in Practice
The Ordinance does provide some avenues of redress. An
aggrieved mutawalli may appeal an Administrator’s removal order to the District
Court, and the superior courts retain constitutional writ jurisdiction over the
Administrator's Act.22 A landmark case, MD Azizul Hoq v Administrator
of Waqf, the High Court Division clarified that the principle of
res judicata does not bar successive applications for removal of a
mutawalli under section 32, leaving the door open to repeated administrative
scrutiny.23 In another matter, the High Court Division found that a
District Judge had acted improperly in deciding an appeal from the
Administrator without examining witnesses or documents at all,24 a
finding that, read carefully, says as much about the quality of oversight
within the system as it does about any single judge's error.
These cases illustrate the structural problem rather than
solve it. Judicial review is reactive, expensive, slow, and available only to
parties with the resources and legal literacy to litigate, typically mutawallis
defending their own removal, rarely beneficiaries of a waqf seeking to hold the
Administrator's office itself to account. There is no statutory waqf tribunal,
no independent ombudsman, and no standing parliamentary committee dedicated to
reviewing the Administration's exercise of its takeover and audit powers.
Internal audit, where it exists, is conducted by auditors whom the
Administrator himself appoints, a textbook case of the regulator marking its
own homework.
Transparency mechanisms fare little better. The Right to
Information Act 2009,25 technically applies to the Waqf
Administration as a statutory public authority. But waqf estate records, income
statements, lease arrangements, and the basis on which the 5% levy is assessed
and spent are not proactively published in any systemic, estate-by-estate
format. The Ministry of Religious Affairs' own budget documents report an
aggregate figure, for instance, that roughly TK2.26crore was collected over a
three-year period at the five percent rate from 16,781 listed estates.26But
such top-line figures cannot tell a beneficiary, a local imam, or a journalist
whether the income from a specific mosque’s waqf land was properly collected,
let alone how it was spent.
The Scale of What Is at Stake
A 1986 census recorded about 150,593 waqf estates in
Bangladesh, but only around 16,781 are currently formally listed and
contributing under section 71. Academic estimates place the Waqf Administration's
holdings at over 13,800 estates, including roughly 9,400 mosques and more than
600,000 acres of land across all six divisions.27 Most strikingly,
government sources estimate that about 85,572 acres of waqf land are under
illegal occupation, out of roughly 424,074 acres under registered estate,
despite ongoing recovery efforts announced by the Religious Affairs Adviser.28
A regulator unable to account for, let alone recover, a fifth of the land
under its statutory guardianship cannot itself escape scrutiny over how the
remainder is managed.
Scholars examining the system have repeatedly reached the
same conclusion: the 1962Ordinance is incompatible with the governance
expectations of independent Bangladesh, has generated persistent legal
controversy, and urgently requires re-evaluation to embed accountability and
transparency and to curb corrupt activity.29 Centralization
concentrates control in Dhaka, leaving divisional and district offices with
limited authority, so central oversight failures spread unchecked
nationwide.
Recommendations Towards a Guarded Guardian
The following reforms would close the most pressing
gaps.
1. Independent external audit: Vest annual audit of
waqf estate accounts in the Office of the Comptroller and Auditor General, or
an equivalent independent body, rather than auditors appointed by the
Administrator, to eliminate the inherent conflict of interest in the current
system.
2. A statutory Waqf Tribunal with lay representation: Establish
an independent Waqf Tribunal, separate from both ordinary civil courts and from
the Administrator, to hear disputes over take over orders, mutawalli removals,
and audits, with representation from beneficiary communities and civil society
alongside a government nominee.
3. Proactive, estate-level disclosure: Require the
Waqf Administration to publish estate level financial and lease information
online to ensure transparency and meaningful public accountability.
4. A time-bound, judicially supervised land recovery
program: Implement a transparent, time-bound program for recovering
illegally occupied waqf land, with district-level targets, judicial oversight,
and regular public progress reports.
5. Decentralize routine decision-making, centralize
oversight: Delegate routine waqf administration to empower divisional and
district officers while keeping oversight, audit, takeovers, and dispute resolution
in independent bodies to prevent excessive centralization of power.
6. Comprehensive statutory replacement: Replace the
1962 Ordinance in its entirety with a modern Waqf Act that defines
mismanagement with precision, sets out proportionate and appealable remedies
short of full administrative take-over, and entrenches the accountability
mechanisms above in primary legislation rather than leaving the MT ministerial
discretion.
Conclusion:
Waqf is, at its core, a covenant between a donor and a
community, mediated by trustees who hold property for the benefit of others in
perpetuity. When Bangladesh, as a state, inserts itself as the supervisor of
that covenant, law requires it to assume a fiduciary duty of its own. A regulator
that can audit, remove, and take over at will, while remaining largely
unaudited, unremovable, and untaken-over itself, inverts that duty. The reforms
outlined here are not radical; they ask only that the guardian of the waqf be
held to the standard the guardian itself enforces on others. Until that
happens, the question in this op-eds title will remain unanswered, tens of
thousands of estates, and the communities that depend on them, will remain
exposed.
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1 Nurul Kabir v Sodaha Ludhi Shikdarpara Jame
Masjid and others (Civil Revision No 2757 of 2021, High Court Division, Supreme
Court of Bangladesh, 9 November 2022) p.15
https://www.supremecourt.gov.bd/translation/process.php?file=2049879_C.R.2757of2021.pdf
(accessed 11 June 2026)
2ibid
3 The Waqfs Ordinance, 1962, sec. 10
4 Dr. Tanzil-Ur-Rahman, Endowment in Islam,
Vol. 2, p. 111
5 Ibid, sec. 6
6 Ibid, sec. 32
7 Ibid, sec 62
8 Ibid, sec 64
9 Ibid, 61(n)
10 and the Administrator's directions,11 refrain
from alienating the propertywithout
10 Ibid. (d)
11 Ibid. (f)
12 Nimai Chand v. Golam Hussain, (1909) 37 Cal
179
13 The Waqf Ordinance, 1962, sec. 66
14 The Waqfs Ordinance 1962 (East Pakistan
Ordinance No I of 1962) (Bangladesh).
15 The Waqfs Ordinance, 1962, sec. 7
16 Ibid, sec. 27
17 Ibid, sec. 32
18 Ibid, sec. 64
19 Ibid, sec. 71
20 Ibid, sec. 37 & 39
21 Ibid, sec. 47A, Code of Criminal Procedure
1898 Ch. XXXV
22 The Constitution of The People’s Republic
of Bangladesh 1972, Art. 102(2)
23 MD Azizul Hoq v The Administrative of waqf,
Government of Bangladesh and Others (2002) 22 BLD(HCD) p. 223
24 Md Afazuddin Mollah and Others v Bangladesh
and Others, discussed in 'Waqf Ordinance 1962' (The Lawyers &Jurists)
< https://www.lawyersnjurists.com/article/waqfs-ordinance-1962/>
(accessed on 12 June 2026) 25 Right to Information Act 2009
(Bangladesh) (Act No 20 of 2009)
26 Government of Bangladesh, Ministry of
Religious Af airs, Medium Term Budgetary Framework: Grant No 32(Ministry of
Finance, 2024)
27 M Kabir Hassan and Sirajo Aliyu, 'Waqf
Property Administration: The Case of Bangladesh' (2016) 4(3) Journal of
Emerging Economies and Islamic Research 20
28'Religious Adviser: Drive Soon to Recover
Occupied Waqf Properties' Dhaka Tribune (Dhaka, 2025) <https://www.dhakatribune.com/bangladesh/government-af
airs/388608> accessed 12 June 2026 29 Asif Mahmud Khan and Md
Tariqur Rahman, 'Historical Development of Waqf Governance in Bangladesh'
(2022) International Journal of Islamic Discourse
