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


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Waqf Instruments


  1. The word of the donor is like the word of the lawgiver. An instrument or the document of declaration of waqf is valid and enforceable if it complies with provision of Islamic law66, and not contradicting any existing laws. The compliance with law shall be seen in matters relating to the language of the instrument (sighah), waqif, the subject matter of waqf, the purpose or objective of waqf, the beneficiaries, the appointment and dismissal of nazir, and the conditions imposed by the waqif.



The Instrument or Declaration (Sighah)


  1. A waqf can be validly declared by words (oral, written or gesture before two witnesses67), express or implied, or the conduct of the donor. The terms and conditions of any declaration68 of waqf shall be clear, certain and not ambiguous. No instrument of waqf will be valid69 if it makes the enforcement of waqf conditional, contingent, and dependent on a future event70 except a declaration of waqf that is effective after the demise of the settlor, which will be subjected to the rule of wasiyyah. However, the mere ambiguity of words shall not invalidate the declaration, as long as it can be construed as such, as to reveal the intention of the donor. A waqf declaration is invalid if made for immoral purpose, or to any person but not for devotion to Allah, or it is inconsistent with Shariah or written law. Similarly, it is invalid, or if it is made only to some of the beneficiaries who are entitled to inherit from the estate of the waqif, unless it is made with the consent of all remaining beneficiaries.71




  1. All terms and conditions permissible under Islamic, or written laws72 and not contrary to the interest of waqf or its beneficiaries are binding on the Majlis or the Corporation.




  1. A condition imposed by the waqif may be invalid for being contrary to Shari’ah or the interest of waqf and beneficiaries (e.g. the condition to rent out waqf property for an amount that is not sufficient for the maintenance of the waqf property, or the said rental falls below the prevailing market rate73). Nevertheless, the declaration of waqf will be held enforceable in the court of law.

  2. The Majlis or the Corporation shall have the power to seek the donor to amend the instrument, if he is alive and known and if he can be reached; otherwise, the power of amending the instrument shall be vested in the Majlis (if permitted by donor or under Islamic law) or court or both.74



The Parties


  1. The instrument shall be made by a waqif (the settlor) who shall be capable of donation, one who is major, sane, prudent75 (rashid) and sober, free, not restrained by an order of the Court, and he is the owner76 of the subject property.

The Subject Matter (Mawquf)


  1. The subject matter of the waqf (waqf property) can be any halal valuable property, interest, service which is capable77 of generating benefit, interest,78 and income which is not restrained by an existing encumbrance79. It includes moveable, immoveable80, cash81, tangible and intangible82, irrespective of whether dedicated in perpetuity or for a brief period of time. Any mode of donation is valid as long it is incompliance with the principle of Shari’ah. The donation will be valid if it involves halal property, shares, rights and bonds backed by assets or income therefrom, cash funds, and waqf shares83.



The Beneficiaries of Waqf (Mauquf Alihi)


  1. The declaration of waqf is valid if it is for use and enjoyment of the property by an individual, including the waqif84, a group thereof, without any discrimination based on sex, age, relationship, religion and others as long as it is not against the general principle of Islamic law. Similarly, a waqf declaration shall not be invalid if the income of the subject property was for the use and benefit of a specified person, group of persons or things (e.g. for maintenance of mosque etc) according to the provisions of Islamic law. A declaration will be valid if the waqif omits the name of the beneficiary (mawquf alaihi), the beneficiary is dead, or cannot be traced within four years. The Majlis will have the power to declare in Gazette the said waqf as waqf am. The beneficiary however will be able to revert it to waqf khas by a leave of court85.

The Effect of Waqf Declaration


  1. The declaration of a valid waqf made by a donor, concerning giving the specified property as waqf together with all stipulations and condition, is binding soon after the conclusion of the declaration;86 provided, it is accepted by the beneficiaries as in case the declaration is for the benefit of a specific person or persons. The possession of the object of waqf by the beneficiary or the trustee is neither a condition to the validity of the declaration nor it affects its immediate enforcement. The property becomes frozen. With exception of the Court, no one including the donor, the nazir or the beneficiaries can do any type of dealing in it87, except those permitted by law and the waqif. Upon declaration, if valid, the property is separated from the waqif; it automatically becomes, irrevocable and non-transferrable subject to the provision of need and necessity and the nature of waqf. The rule of non-transferability, however, will not apply to the income of the waqf property if declared as waqf. Such a property can be alienable.88




  1. Invalid waqf can be returned to its owners if found, otherwise to baitul mal89.




  1. The Majlis has to seek the opinion of the Court on the meaning or effect of any instrument or declaration creating or affecting any waqf, if obscure or uncertain. The Majlis shall act on any opinion so given by the Court90.




  1. A declaration shall be registered with Majlis in a form as prescribed by the Majlis.91



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