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

Marketing

63. 
    The nazir has the power to market, through new and traditional means of media, waqf property, and the available investment opportunities in the development of waqf properties. This is to directly or indirectly invite from various trades and professions, investors, partners (public, private, corporate or individual), and donors as well as to attract donations for the implementation of various development projects. All costs can be deducted from waqf accounts.
    

Distribution of the Income on the Beneficiaries

45. 
    Distribution shall take place only after the debts, obligations, expenses, and reserves are deducted from the revenue of the waqf properties.
    

45. 
    The distribution of the benefit/income on the beneficiaries shall be on equal basis if the waqif has not determined their shares. Where the waqif has dedicated the income to asnaf zakat, the Majlis shall follow the formula applicable to the distribution of the zakat on asnaf too.¹¹⁴ Where due to lapse of time or change of circumstance, the income from the mawquf cannot be distributed as provided for under the declaration of waqf the Majlis or the Corporation can use it as closely as possible to the original purpose or add it to general waqf fund.¹¹⁵
    

Dealings in Waqf Properties

45. 
    As a rule, the waqif cannot unfreeze waqf property, and it cannot be transferred. Exception to this rule is the sale of waqf property by way of ibdal and istibdal. It property can be disposed of in exchange for a similar land or for cash equivalent to market value of the land. The proceeds¹¹⁶ of the sale by istibdal may be used to develop the remaining waqf property or another. The sale through istibdal is subject to the following conditions¹¹⁷: when compulsorily acquired under existing law by the government; the waqf property does not yield any income or benefit intended by waqif; and the use of the waqf does not comply with the purpose of waqf, any other reason that is in the interest of waqf or its beneficiary.
    
46. 
    The income of the waqf property is disposable. A land or property bought through the income of the waqf is still waqf property but can be disposed of in the normal manner according to existing laws.
    
47. 
    A waqf land may be leased on short term basis or long term. The modes of long term lease such as that under ijaratain and hikr shall not exceed 99 years. Any leased land, then, can be sold, subleased and charged under Malaysian Land Code. The rights under this lease shall be transferrable and transmittable to others subject to conditions imposed under the master lease.
    

The Creation of New Waqfs

50. 
    The Majlis or the Corporation can create new waqf. The Majlis or the Corporation can offer shares in a property for a defined amount of cash (as cash waqf) or request the public to contribute an amount of money whereby a property can be purchased and converted to a waqf (saham waqf).
    
51. 
    A property, which is developed through waqf shares, is waqf property and shall be subjected to the rules applicable to normal waqf properties.¹¹⁸ The capital of the cash waqf shall be invested. Where a real estate is purchased through the capital of cash waqf, such property, though waqf, shall not be subject to the rule of perpetuity and inalienability.
    

Accounts and Audit

51. 
    There must be a special accounting system for the management of waqf properties. The system must take cognisance of the consumptive and productive awqaf; for each, a separate system of accounting must be created. Productive properties shall be subject to normal corporate accounting system.
    
52. 
    For sake of transparency, the Majlis¹¹⁹ and the Waqf Corporation jointly shall publish in Gazette the list of all waqf assets, within the jurisdiction or outside, old and new. This must include waqf schemes, the beneficiaries thereof, investments made, the proceeds, the profits, losses, and the rate of income distributed on the beneficiaries, the reserves and expenses spent on the repair or maintenance of waqf property and other operational cost, as required from any corporate entity.¹²⁰
    

offences and Penalties

51. 
    It shall be unlawful¹²¹ for anyone to occupy, use, and encroach on waqf land. Similarly, it will be unlawful for anyone who removes and disposes or takes any produces of waqf lands or unauthorised use or occupation of air space, destroys property or any plant or crop cultivated on any wakaf land. Anyone who causes any change, alteration, destruction, damage or defect to any mawquf or preventing or causing to prevent mawquf-alaih from enjoying benefit, interest or profit of mawquf, will commit an offence. All offences will be punishable with fine, imprisonment or both¹²².
    

51. 
    The Majlis or the Corporation can forfeit the structure illegally built or crops illegally planted¹²³. They can also have the power to claim compensation for any destruction to or of any plant or crop cultivated on the wakaf land, by either an individual or his livestock¹²⁴, or the restoration or replacement¹²⁵. The Majlis and the Corporation shall be entitled to claim costs incurred by them¹²⁶ in the course of destruction of the structure or the clearance of the crops.
    

Monitoring

51. 
    The law is not clear on the monitoring though there are some sections outlining the functions of the Majlis to investigate offences committed by some members of public against the waqf property. That however is part of enforcement process.
    
52. 
    Amendments to the parent law as well as proper regulations under s 53 of WNSE and 47 of WSME are needed.