Muslim charities: Wakf Board’s directive and Court of Appeal’s order

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Despite its flaws, the Wakf Act, No. 51 of 1956 remains the best mechanism to protect Muslim charitable properties

On 30 April 2025, the Wakf Board issued a historic and significant order directing that the Kal-Eliya Muslim Ladies’ Arabic College (the College) be registered as a Muslim charitable trust (Wakf). In response, “the Board of Management” of the College filed a writ application in the Court of Appeal seeking an injunction order against the Wakf Board’s directive.

Having carefully considered both oral and written arguments presented on behalf of the petitioners and the respondents, the Court of Appeal dismissed on 16 June 2025 the writ application, thereby affirming the authority of the Wakf Board’s directive.

This judgement by the Court of Appeal stands as a milestone in safeguarding Muslim charitable institutions and ensuring that such organisations fulfil the original objectives for which they were established.

Arguments before the Court of Appeal

The petitioners’ counsel, a prominent attorney-at-law, strongly argued that since the Kal-Eliya Muslim Ladies’ Arabic College had already been incorporated under Act No. 46 of 1991 by Parliament, it could not be governed or registered under another statute. Therefore, they claimed the Wakf Board had no authority to register or administer the College under the Wakf Act, No. 51 of 1956.

Counsel for the respondents refuted this argument both legally and logically. They contended that incorporation by Parliament and administration under a law are two distinct concepts. It was further explained that although the College was established in 1959, it was incorporated in 1991. This incorporation did not change its purpose or nature, nor did it override the founders’ original charitable objectives. On the contrary, registering the College as a Wakf would enhance the transparency and accountability of its charitable goals.

They established that incorporation is merely a form of registration, and there were no exclusive clauses in the Board of Management of the Muslim Ladies Arabic College Managing Society, Kal Eliya (Incorporation) Act, No. 46 of 1991 (the Incorporated Act) that excluded the application of other laws, including the Wakf Act.

They also raised a preliminary objection: the petitioners had failed to first approach the Wakf Tribunal—an available alternative remedy—without providing valid justification, and instead directly sought relief from the Court of Appeal. The counsels for the respondents substantiated this claim with several decided cases such as Thennakoon v. DG of Custom, Dedigama v. Sri Lanka Customs, and Punchimenika v. Dharmadasa. The Court held that the availability of an effective and satisfactory alternative remedy disentitles a party to discretionary relief by way of writ.

It was emphasised that Section 9H of the Wakf Act expressly provides a right of appeal to the Wakf Tribunal against decisions of the Wakf Board, empowering the Tribunal to review, set aside, vary, or confirm such decisions upon inquiry. The Tribunal follows the rules of the Civil Procedure Code, which ensures the proper legal process. Its members are appointed by the Judicial Service Commission, which adds to its credibility and impartiality.

The Court’s ruling

After hearing both sides, the Court of Appeal upheld the respondents’ preliminary objection and dismissed the petition seeking an injunction. This affirms the legal validity of the Wakf Board’s order.

Clarifying misconceptions about the Wakf order

Some parties have spread incorrect narratives regarding the Wakf Board’s directive. It is my duty to clarify certain key points.

Why didn’t the founders register the College under the Wakf Act at the time of its establishment in 1959?

The principle “Substance prevails over form” is not only a key concept in Western jurisprudence but also a fundamental rule in Islamic Sharia. “Deeds are judged by intention”. The founders’ intentions, public statements, goals, operations, public and international recognition, charitable contributions, and government concessions concerning the College, all indicate that this institution was established for public benefit and functions as a charitable Wakf.
The founders of the College had a clear and unambiguous vision to establish it as a Wakf institution. This vision was formally articulated in 1963 by the founders in a document titled “The Constitution of the Muslim Ladies’ Arabic College Managing Society.” Under paragraph 21, titled “Trustees,” it is stated, among other things, that “the Board of Trustees shall have all the powers and duties under the Trusts Wakfs Ordinance.”
In the public appeal dated 23 July 1961, the five founders jointly and unequivocally declared the College to be a Wakf-owned institution and called upon the Muslim public to contribute generously towards its infrastructure development. This unprecedented initiative—to establish a residential religious school for Muslim girls at a time when female Muslim education was at its lowest ebb—received overwhelming support from both local and foreign philanthropists.
The Government of Sri Lanka too granted the status of approved charitable institution to the College through publication of Gazette No. 13998 dated 28 March 1964, encouraging the general public to make donations to this noble cause making it eligible for tax relief. It continues to hold this status today.
Many charitable initiatives begin with good intent, and though initial legal formalities may be overlooked, mechanisms exist to rectify this in the future. For instance, a couple may live together and engage in conjugal life without state registration, but should disputes arise, state registration becomes essential for legal protection. Similarly, though the College ran smoothly in its early years, the need for legal and regulatory oversight arose later due to emerging disputes and mismanagement.

The Incorporation Act of the College supersedes the Wakf Act?

It was contended that the incorporation under Act No. 46 of 1991 stops the application of the Wakf Act. This contention is convincingly invalidated that such exclusivity must be clearly stated in the law—which it is not. Some wrongly portray the College as an autonomous entity immune from all other laws.

This was an attempt to arrogate for the College a privilege and an immunity that Parliament had not conferred on it. The Incorporation Act had conferred on the College just the legal personality which does not make it immune from other obligations, including under the Wakf Act, unless and otherwise stated.

Quite to the contrary, the Incorporation Act of the College has very clearly and explicitly stated that the Rule of the College, which is integral part of the Act as per Section 4, shall not be inconsistent with the provisions of any other written law.

Section 08 of the Incorporation Act states that the provisions of the Incorporated Act shall not prejudice or affect the rights of the Republic or any other body politic or corporate or any other person. Thus, it is clear that the word persons includes the Wakf Board, as well as donors of to the said Kal-Eliya Muslim Ladies Arabic College, its students and all persons who are beneficiaries of the trust.

Ironically, the very petitioners who now assert that the College is governed solely by this Act have continuously disregarded its core provisions—meant to uphold transparency and accountability in the administration of a public charitable trust. In the 35 years since incorporation, no such society has been formed, no annual general meetings have been held, and no Board elections have taken place. Instead, control of the College has remained within the family of a single founder, in direct violation of both the letter and spirit of the Act

Background of the Incorporation Act

In the 1980s, a legal action was instituted in the Gampaha Court (Case No. 24417/M) against members of the then Board of Management for alleged misappropriation of College funds. As a way of prevention of repetition of such mismanagement and of ensuring the good governance, the management, together with prominent Muslim leaders and intellectuals, pursued the registration of the College through incorporation by an Act of Parliament, with the aim of ensuring transparency, accountability, and sound governance. This led to the enactment of The Board of Management of the Muslim Ladies Arabic College Managing Society, Kal-Eliya (Incorporation) Act, No. 46 of 1991.

Under this Act, a society comprising of Muslim men over the age of 21 was to be constituted, with financial reports to be approved at an annual general meeting, and the office bearers of the Board of Management elected every three years, in accordance with paragraphs 4 and 9 of the Rules, read with Section 4 of the Act.

Ironically, the very petitioners who now assert that the College is governed solely by this Act have continuously disregarded its core provisions—meant to uphold transparency and accountability in the administration of a public charitable trust. In the 35 years since incorporation, no such society has been formed, no annual general meetings have been held, and no Board elections have taken place. Instead, control of the College has remained within the family of a single founder, in direct violation of both the letter and spirit of the Act.

If the Act had been followed properly, today’s disputes and the need to approach courts or the Wakf Board would not have arisen.

Coexistence of the Incorporation Act and Wakf Laws

The goals of the Incorporation Act of the College and the Wakf registration are not contradictory. Both aim to ensure that the institution fulfils its charitable objectives transparently and accountably. Due to the mismanagement and deviation from this purpose, actions were taken under both the District Court, based on the Incorporation Act and the Wakf Act, based on purpose and founding objectives of the College.

Protecting Muslim charitable institutions is a social duty

Though many Muslim charitable institutions in Sri Lanka were founded by individuals, their development has been the result of broad community’s financial, material and intellectual supports. Hence, these institutions are public properties established for the benefit of the public and cannot be considered private property. It is deeply concerning that some are now misused by the administrators including by the very heirs of founders.

Despite its flaws, the Wakf Act, No. 51 of 1956 remains the best mechanism to protect Muslim charitable properties. Failing to fulfil one’s responsibilities in this regard not only incurs community condemnation but also divine accountability.

(The writer is a retired Deputy Commissioner General, Inland Revenue Department. He can be reached at [email protected].)

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Muslim charities: Wakf Board’s directive and Court of Appeal’s order

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