A proposal for a New Comprehensive Waqf Law in Malaysia Mohammad Tahir Sabit Haji Mohammad, PhD

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Powers Functions Duties and Liabilities

The powers, functions, duties and liabilities of nazir need to be exhaustively and clearly defined, as ambiguous legal framework in this regard is the cause of weak institution. The Majlis and the Corporation shall be vested with administrative and managerial powers. The Majlis shall have powers including giving direction^³³, regulating, monitoring^³⁴ and enforcement as well as entering into valid transactions (see further details at p. ). Any action taken by the Majlis or the Corporation shall be valid if it is according to the terms of the waqf instrument and fiqhi principles. Otherwise, their action shall be considered ultra vires.
The Majlis^³⁵ or the Waqf Corporation may delegate some of their powers or impose restriction on their use to particular conditions, without affecting the powers to act on their own.

The Majlis shall have the power to register waqf. The Majlis and the Corporation can create waqf fund, purchase property, and declare it as waqf^³⁶, transfer waqf assets through istibdal, (sometime mandatory to do so if the document of waqf requires it), must evict squatters and errant tenants, and claim rental and value from those who are not entitled thereto^³⁷. The corporation shall have the mandatory power to distribute the income from waqf assets on the beneficiaries, and can retain a portion of the income for administrative costs. The managers and servants of the Majlis or the Corporation can also hold these powers.

It shall be the duty of the nazir to uphold the principles of good governance (to act in good faith and without neglect and exercise due skill and care). It shall protect, maintain, develop, and invest waqf assets.^³⁸ Consequent to proof of any breach of duties, the trustee not only can be dismissed but should also be sued in the court of law for wilful or negligent mismanagement of waqf properties.

The Majlis^³⁹ and the Corporation has the duty to act in good faith and without neglect and exercise due skill and care in the selection of any person or agent to for the management and investment of waqf assets, their benefits, interest, or profits or execution of transaction requirement for the management and investment. The managers should be liable personally. The Corporation should also be vicariously liable for those actions of managers and employees, which were ultra vires according to the waqf document, or the provisions of law.

It shall be the duty of the Corporation to ensure that the beneficiaries enjoy the benefit, interest, or profit from waqf property, which they are entitled to^⁴⁰. It shall manage the waqf property according to the terms of the waqf instrument, in cases where the beneficiary ceases to exist.^⁴¹ Where due to lapse of time or change of circumstance, the Majlis or the Corporation cannot distribute the income from the mawquf, as provided for in waqf document it can use it as closely as possible to the original purpose or add it to general waqf fund.^⁴²

All persons or agents working for the Majlis/the Corporation, and for the management of waqf properties or their investment shall be under duty to act in good faith, without negligence, and to exercise due skill and care. Any loss caused by the manager, servant or agent, directly or remotely, shall be recoverable by the Majlis or the Corporation from such person or agent who ought to have acted in good faith, due care, skill and diligence. The Majlis and the Corporation shall monitor all activities^⁴³ of its administrators, managers, servants, and or agents.

The Majlis^⁴⁴ and the Corporation shall assume the responsibility to expend money^⁴⁵ where waqf suffers any loss due to an action of any person including that appointed by them. Where the appointed person or agent wilfully or negligently through any act or omission causes such loss on the waqf property, the Majlis and the Corporation should claim any expenditure incurred due to his action. In case the person or the agent causes the loss on waqf property due to his incompetence, which was overlooked during the appointment of the said person, the Majlis, the Corporation, the appointment committee, or the person in charge of any such appointment shall pay compensation.

The Majlis should be the sole registering authority for all waqf properties^⁴⁶, moveable, immovable, or a particular type of scheme,^⁴⁷ including new^⁴⁸ and those which, for any reason, were not registered^⁴⁹, by itself^⁵⁰ or by an order of court^⁵¹ or by waqif^⁵². For the purpose of security of the title, it is suggested that prior to registration, a notice informing the public that the scheduled land is likely to be registered as waqf, be published in Government’s Gazette^⁵³. An appropriate notice shall be served on all those having interest in the scheduled land prior to registration, irrespective of the fact whether or not the registration is made on the initiative of the waqif or by an order of court^⁵⁴. Only after the process of adjudication, if necessary and when a protest is lodged, or on the expiry of deadline, the scheduled property be registered as waqf.

The Majlis shall have the power to appoint Registrars^⁵⁵, deputies, officers and servants for the purpose. The registrar shall be under duty to keep, maintain the register, or caused to be so^⁵⁶. Upon registration, the registrar of waqf shall issue certificate of waqf^⁵⁷ and manage the process of vesting^⁵⁸ the waqf property in the Majlis or Waqf Corporation (by entering a note on the Register, kept by the registrar in the Land Office).^⁵⁹ It shall be the duty of the Land Officer to endorse, as soon as possible, the change of status of the land caused by the registration of waqf in the Majlis^⁶⁰. The process of vesting of waqf property shall not cause any transfer of name, change of title, or the name of the waqif.^⁶¹ The certificate of registration of waqf should not create title; it shall be an evidence of a charitable estate that entitles the scheduled registered waqf property to be exempted from quit rent, tax and rates^⁶². The Majlis shall also keep any instrument, document, title^⁶³ and evidence proving the property being declared, registered and endorsed as waqf.

The register that shall be kept in the Majlis shall have all the characteristics of a modern integrated cadastre. The register shall exhibit (by collecting from various departments) all relevant information about the given land parcel^⁶⁴ or be linked to data kept by department of national land administration, planning, surveying and valuation system(s), as when they themselves become integrated. The title as waqf to the land is not obtained by registration. The certificate will be the evidence of validity of the particulars of waqf as exhibited on it^⁶⁵, but should not be the sole criteria for validating a waqf. The title to waqf land and all incidents of title (i.e. transfer of ownership from waqif and freeze on its transferability) shall be effected right after the declaration is made by the waqif.

For the good governance and management of waqf properties, an integrated register will exhibit all geographical/physical, legal, financial and planning/development information about a parcel of land.

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