Ana səhifə

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


Yüklə 299.5 Kb.
səhifə8/9
tarix26.06.2016
ölçüsü299.5 Kb.
1   2   3   4   5   6   7   8   9

Enforcement


  1. This aspect of the Negeri Sembilan and Malacca law is quite comprehensive as long the unlawful occupation and use or destruction of waqf properties is concerned. Offences are defined127 and several mechanisms are adopted for this purpose. They include the empowerment of the Majlis128 and both the Shari’ah and civil courts129 to recover losses. Clear powers are given to the officer of Majlis130 and public Shari’ah prosecutors131 to investigate any offences.

  2. The Majlis can order or at the cost of the offender carry out the demolition and other necessary action. Similarly, it can order the offenders to pay compensation for the unauthorized occupation of any wakaf land or wakaf building, clearing, ploughing, digging, enclosing or cultivating or otherwise working on any wakaf land or cutting, taking, removing or disposing any produce on or from any wakaf land. In case the order of the Majlis is not complied with, it can apply to the Court and the court has to issue an order to that effect.132

Power of Courts


  1. The Shariah courts133 shall have the jurisdiction to declare a waqf valid in terms of its instrument, the terms and conditions thereof, the time when it has become effective134 and enforceable, its nature and its effect. Only the Shari’ah court should have the power to interpret, construct, declare valid or otherwise any instrument of waqf or any matter relating thereto135. Such a declaration should be binding, and no civil court shall have the power to challenge or ignore and refuse to follow. The Shari’ah court, the same as any civil court, shall grant leave to the nazir to enter a transaction, appoint, or dismiss the nazir or his substitute.




  1. The Shariah court can issue any order or injunction for enforcement of its declaration, interim, and final; and shall have the same effect as if it were issued by a civil court of a appropriate jurisdiction.




  1. Where a non-Muslim is party to a dispute, the parties may bring action in both Shari’ah and civil courts. The civil court shall adjourn its proceedings until a verdict is entered by the Shari’ah court. The award of the Shari’ah court, as far as it relates to the validity of declaration of waqf, interpretation of such a declaration, transfer and transmission of title and any other issue that shall be decided according to Shari’ah, shall be acknowledged by the civil court. The Shari’ah court shall take cognition of the fact that the donor had a valid title to the subject property in the first place. Where the Shari’ah court misconstrues the law relating to titles, the decision of the civil court if made after that of Shari’ah court shall prevail. The order of the Shari’ah court can be enforced only after a similar award is made by the civil court.




  1. The Majlis will have the duty to seek the leave of the Shari’ah court to register when it believes a given property is a waqf property including those involving non-Muslim as contestant. Only on the order of Shari’ah court then it will have to register such property as waqf. The Shari’ah court in its declaration shall rely on any evidence considered admissible under the established principles of Islamic Law.




  1. The Shari’ah court can order to demolish, destroy any structure or building and order to clear any crops on waqf land136.




  1. The recovery of the debt is recoverable through litigation in civil courts137.



Conclusion


This proposal envisions a major change to the laws of waqf. It recognises waqf as a legal person and based on its classification it proposes two types of management structures: one at the hands of Majlis and other at the hand of a corporate like entity. While protection of the properties at the hand of both the Majlis and the Corporation, management activities of the productive properties is the main focus of this proposal which is proposed to be at the hand of the Corporation. While this proposal highlights the issues that must form the contents of the law of waqf amendments to other laws such as banking, taxation, companies and others are presumed to be considered necessary by the drafters of the legislation if this proposal was accepted to be a valid effort.

References
Ali Jum’ah Muhammad, “al-Waqf wa Atharahu al-Tanmiwiyyah”, in Abahth Nadwah Nahwa Dawr Tanmiwi li al-Waqf, al-Kuwait: Wizarah al-Awqaf wa Shu’un al-Islamiyah, 1993,

Al-Amin, Hasan Abdullah, Al-Waqf fi al-Fiqh al-Islami, in Idarah wa Tathmir al-Mumtalakat al-Awqaf, Jeddah: Islamic Development Bank,1994.

al-Ammar, Abdullah bin Musa, “Istithmar Amwal al-Waqf” in Muntada Qadaya al-Waqf al-Fiqhiyyah al-Awwal, Iltizam Shar’i … wa Hulul al-Mutajaddidah, Kuwait: al-Amanah Ammah li al-Awqaf, 2004.

al-Bahuti, Mansur bin Yunus, Kashshaf al-Qana’ ‘An Matn al-Iqna’, Beirut: Dar al-Fikr, 1982 / 1402 A.H.

Al-Bujairami, Sulaiman bin Umar bin Muhammad, Hashiyah al-Bujairami ala al-Minhaj, Kitab al-Waqf, Ahkam al-Waqf al-Ma’nawiyah, vol. 2,

Al-Dardir, Sidi Ahmad, Abi al-Barakat, Sharh al-Kabir, Egypt: Ihya al-Kutub al-Arabiyah n.d.

Al-Dusuqi, Muhammad bin Ahmad ibn Arfah, Hashiyah al-Dasuqi ala al-Sharh al-Kabir, bab al-rahn, Dar al-Ihya al-Kutub al-Arabi, n.d.

Al-Hattab, Muhammad bin Muhammad bin Abd al-Rahman al-Maghribi, Mawahib al-Jalil fi Sharh Mukhtasar al-Shaikh al-Khalil, vol. 6, Beirut: Dar al-Fikr, 1992;

Ibn Abidin, Muhammad Amin bin Umar bin Abdul Aziz, Radd al-Muhtar sharh Dur al-Mukhtar, (Hashiyah Ibn Abidin), kitab al-waqf, Beirut: Dar al-Fikr 1386 AH,

Ibn Humam, Kamal al-Din Muhammad bin ‛Abd al-Wahid, Fath al-Qadir ala al-Hidayah, Beirut: Dar al-Fikr, nd.

Ibn Nujaim, Zain al-Din bin Ibrahim, al-Bahr Rai’q Sharh Kanz al-Daqa’iq. Kueta: Maktabah Rashidiyyah n.d.; http://feqh.al-islam.com/default.asp.

Ibn Qudamah, Mawfaq al-Din, al-Mughni, kitab al-wuquf wa al-Ataya, Al-Riyadh: Maktabah al-Riyadh al-Hadithah, 1401 AH, vol. 6; also http://feqh.al-islam.com/default.asp

Isa Zakai, Mu’ajjaz Ahkam al-Waqf, Kwait: Kuwait Awqaf Public Foundation, 1995.

Kahf, Monzer, Al-Waqf al-Islami, Tatawurruhu, Idaratuhu, Tanmiyatuhu. Beirut, Labenon: Dar al-Fikr Ma’aasir & Damsyik, Syria: Dar al-Fikr. 2000

Al-Kasani, Ala’ al-Din Abi Bakr bin Mas’ud, Badai’ al-Sana’i’ fi Tartib al-Shari’i‘, vol. 6, Beirut: Dar al-Fikr, 2000.

Al-Khatib, Muhammad al-Sharbini, Mughni al-Muhtaj ila Ma’rifat Alfaz al-Mihaj, kitab al-waqf, http://feqh.al-islam.com/Books.asp.

Al-Khatib, Muhammad al-Sharbini, al-Iqna’ fi Hali Alfaz Abi Shuja, (bab al-Rahn), Singapore: Maktabah Sulaiman Marghi, nd.

Al-Mardawi, Ali bin Sulaiman, al-Insaf, (ktab al-waqf), Dar Ihya al-Turath al-Arabi. http://www.almeshkat.net/books/list.php?cat=41

Al-Mayman, “Duyun al-Waqf”, in Muntada Qadaya al-Waqf al-Fiqhiyyah al-Awwal, Iltizam Shar’i … wa Hulul al-Mutajaddidah, Kuwait: al-Amanah Ammah li al-Awqaf, 2004.

al-Qaradaghi, Ali Muhiyuddin, “Duyun al-Waqf”, in Muntada Qadaya al-Waqf al-Fiqhiyyah al-Awwal, Iltizam Shar’i … wa Hulul al-Mutajaddidah, Kuwait: al-Amanah Ammah li al-Awqaf, 2004.

Al-Qarafi, Shihabuddin Ahmad bin Idris, al-Dhakhirah fi Fiqh al-Maliki, vol. 6, Kitab al-Waqf. Beirut: Dar al-Gharb al-Islami, 1994.

Al-Sarakhsi, Shams al-Din Abu Bakr Muhammad Ibn Ahmad Ibn Abi Sahal, Kitab al-Mabsut, Beirut: Dar al-Ma‛rifah 1986 / 1406 A.H., http://feqh.al-islam.com/Books.asp

al-Sediq Muhamthimad al-Darir, Duyun al-Waqf, in Muntada Qadaya al-Waqf al-Fiqhiyyah al-Awwal, Iltizam Shar’i … wa Hulul al-Mutajaddidah, Kuwait: al-Amanah Ammah li al-Awqaf, 2004.

Shawqi, Ahmad Dunya, “al-Waqf al-Naqdi: Madkhal li Taf’il Dawr al-Waqf fi Hayatina al-Mu’asirah”, in 3 al-Awqaf ,2002.

Al-Subki, Taqi al-Din, Takmalah al-Majmu’ Sharh al-Muhadhdhab, Beirut: Dar al-Fikr li Tiba’ah wa al-Nashr, (kitab al-Waqf); http://feqh.al-islam.com/Books.asp

al-Zarqa, Anas, “al-Wasail al-Hadithah litamwil wa al-Istithmar,” in Idara wa Tathmir Mumtalakat al-Awqaf, Jeddah: IDB, 1994.

al-Zarqa, Mustafa, Nazariyyah al-Iltizam, Damascus: 1962.

Wakaf (Negeri Sembilan) Enactment 2005 (WNSE),

Wakaf (State of Malacca) Enactment 2005 (WSME).

Administration of Religion of Islam (Selangor) Enactment, 2003



Administration of Islamic Law (Federal Territories) Act, 1993

1 See for example Section 2(1) of the Administration of the Religion of Islam (State of Selangor) Enactment 2003, s 2 (property) Wakaf (Negeri Sembilan) Enactment 2005 (WNSE), Waqf (State of Malacca) Enactment 2005 (WSME).

2 s 3(2) the Wakaf (State of Malacca) Enactment, 2005(WSME)

3 s 9 (1)(2)

4 Indonesian Author

5 Legal personality of waqf is recognised under Qatari Law expressly (s 1). Jurists such as Ali al-Khafif and al-Zarqa have recognised the legal personality of waqf based on the views of early jurists who treated waqf property different from that of Nazir (the custodian). That the nazir was not personally liable for debt he has correctly incurred on waqf estate, was interpreted as rule showing the split between the trustee and the waqf.

6 Similar section as s 3 of the Sabah Baitulmal Enactment, 1998 should be enacted. The waqf Corporation will have similar entity and powers as the baitul mal Corporation.

7 In light of 5, 57 and 58 of the Wakaf (Negeri Sembilan) Enactment 2005 s 30 WSME and sections 89-90 of the Administration of Region of Islam of other states (including that of Negeri Sembilan), ss 77 and 78, (the State of Malacca) 2002, the state is the sole trustee. No other person or entity shall be appointed as such. In case of appointment of nazir other than the Majlis, the appointment is null and void. These sections need to be deleted if one has to reapply the classical view before the practice of the Ottomans.

8 For instance, section 90 of the Selangor Enactment implies ownership of the waqf properties to be given to the Majlis. Further clarification is found in provisions (Sabah, Baitulmal Corporation Enactment, 1998, s39) dealing with baitulmal where it is expressly provided for the ownership of waqf properties by Majlis and subsequently by baitulmal of a given state.

9 The jurists in fiqh literature have no unanimous opinion on the ownership of waqf properties. To some the owner is the donor or settlor, to others the beneficiary. But no one express the opinion that the nazir (the trustee) of the waqf property is its owner.

10 In Majlis Agama Islam Selangor v Bong Boon Chuen & Ors [2008] 6 MLJ 488 the argument for the Majlis was not specific to waqf and thus the Majlis lost the case. Have had they argued under s 89 and s 90 of the Enactment 2003, there would be a chance for the Majlis to obtain the ruling as they prayed for. Under section 89 the Majlis would be proven to be the trustee and by virtue of s 90 as the owner of the waqf property. Nevertheless, they still needed to have recourse to the old court decision regarding the effect of registration under National Land Code on the validity of waqf. In Re Dato Bentara Luar Decd Haji Yahya Bin Yusof & Anor V. Hassan Bin Othman & Anor [1982] 2, it was held that upon a declaration of waqf the owner relinquishes his ownership in property; it becomes the property of God the Almighty irrespective of it being registered as waqf or otherwise. All these might be due to the confusion regarding the relationship between the Majlis and the waqf properties. Where the waqf is recognised to have legal personality, and the nazir (i.e. the Majlis) is under duty to protect the interest of waqf, the judges would not be unwilling to accept the prayer.

11 Section 5(1) (a), WNSE and section 3 WSME needs to be amended by making the Majlis a trustee of consumptive waqf properties.

12 Sections 6, 7 and 8 WNSE still need retaining. Additional sections, empowering the Majlis to regulate and monitor productive waqf property’s management, need to be inserted.

13 s 24 of the Malacca Waqf Enactment will be applicable to those committees which are in charge of non-consumptive waqfs

14 The format of the Malacca waqf management committee (s 24 and 25) can fit here.

15 This is somehow in line with that under s 21 WNSE. The committee under s 21 WSME however does not seem advisory. It is more to a sub-branch of the Majlis which can be one proposed under the Majlis.

16 s 22 WNSE; s 21 WSME. The Malacca Enactment fuses the administration and management activities at the hand of the Committee. The Committee seems to be not advisory rather having executive powers.

17 s 22 WNSE

18 s 28 WNSE

19 The Malacca Waqf Enactment 2005 calls the board as Wakaf Management Committee. Compare to Negeri Sembilan the composition of the committee is more logical.

20 See subsection 21(2), Second Schedule WNSE; s 22 WSME. Under the above proposed draft emphasis is shifted more to the professional advice, as such is considered to be more beneficial to the waqf and its beneficiaries.

21 Under s 22 of the Malacca and 2nd schedule of Negeri Sembilan laws the posts are not permanent as the office holders can resign, or be terminated by the Committee.

22 Section 24 WSME.

23 section 25 WSME

24 ss 61, 62, Administration of Islamic Law (Federal Territories) Act, 1993

25 The court and the nazir who may delegate his duties to another person are to be given the same powers too.

26 S 33(1)(a) WNSE

27 S 33(1)(b) WNSE

28 The dealing of a nazir according to the Muslim jurists is based on the interest of the waqf and its beneficiary.

29 S 33(c) WNSE

30 S 33(2) and s 16 WNSE

31 S 33(5) WNSE

32 See s 33(4) WNSE.

33 s 35 WSME

34 s 36 WSME

35 S 53 WNSE

36 s 33 WSME

37 S 15 WNSE includes the claim of rental and value of a property but not the possession of the property which is unlawfully occupied by some party.

38 The term duty should not only impose heavy burden on waqf institution in terms of liability for breach but will also convince other agencies and individuals to accept and recognise the acts carried out in course of performing such duties.

39 s 33(1)(a)-(c), 33(5) WNSE

40 The current law imposes this duties listed in this paragraph on the Majlis: s 13(1) WNSE

41 S 13(2) WNSE

42 s 38 WSME

43 For instance, the appointment of persons and agents acting for the Majlis or Corporation, the management, the monitoring, the enforcement and so on.

44 S 33(3) WNSE

45 The waqf institution not only should have duties towards waqf to fulfill a condition, but also must be liable for breach of any such duty.

46 See s 10 (1)(2)(a), 18-20, WNSE; section 6 of WSME.

47 S 11 WNSE

48 S 16 WNSE

49 Section 7 and 50 WNSE

50 S 10(1)(2)(a) WNSE

51 S 7 WNSE

52 Section 6, 10(2)(b) WNSE

53 s 33 of Wakaf(State of Malacca) Enactment requires so if a property is purchased through baitulmal money and declared as waqf.

54 Currently s 50 of the WNSE requires such declaration when an application to the Court by the Registrar of waqf is made.

55 Currently the Secretary of the Majlis shall be the registrars under Negeri Sembilan laws: s 21(4) WNSE or a member of public service s 34(1) WSME

56 s 19 WNSE; s 34(1)(a) WSME

57 S 8 WNSE

58 S 9(1), 19(b) WNSE; s 50(1) WSME. Note, the vesting shall not imply ownership, as understood from s 90 of the Administration of Religion of Islam Enactments (NS, Malacca, Johor, etc).

59 It is suggested that an amendment to the National Land Code might be necessary. Having such a provision in the land code as the waqf legislation will shorten the time for completion of the process of vesting.

60 Currently s 9(1) and (2) WNSE is vague about the procedures of vesting the waqf property in Majlis. Subsection 9(4) makes the vesting of waqf to be in compliance with the provisions of NLC despite the fact that s 4(e) of the NLC enlists waqf lands among lands to which the provisions of NLC shall not apply; in case of inconsistency the laws of waqf will prevail. Section 36(1) also subjects its application to the provision of NLC. This trend need to be discontinued, and any such reference be deleted. See the case of Re Dato Bentara Luar Decd Haji Yahya Bin Yusof & Anor V. Hassan Bin Othman & Anor [1982] 2, which affirms the rule in s 4(e) of the Code.

61 See s 9(2), 90 the Administration of Religion of Islam Enactments (NS, Malacca, Johor, etc)

62 See Fatwa under section 36 of the Administration of Religion of Islam (State of Malacca) 2002, recommending exemption from taxes; published in gazette No 231, vol. 53 No. 10 at p 431, 7th May, 2009.

63 S 19(c) WNSE; s34(1)(b) WSME

64 The register will include the legal data concerning the ownership in land office, the locational information, including of those neighbouring properties, from surveyors, fiscal information from valuation department and developmental control information from Local Government office. In addition it should exhibit the type of waqf as am or khas (s 10 WNSE); a new category of waqf as consumptive or productive be further added.

65 See s 8(2)(3) WNSE. An additional clause in the Enactment is needed to clearly show the creation of waqf soon after the declaration, orally or in writing, by the waqif, is made.

66 section 3 of WNSE reads: ‘the creation of wakaf, invalid waqf, wakaf to invalid heirs, right of waqif to stipulate condition and other rights of waqif, wakaf by a person in a state of marad al-maut, wakaf taklik, wakaf irsod, wakaf muabbad, wakaf musyak, wakaf musytarak, and conditions for a valid mawquf, shall be in accordance with Hukum Syarak.

67 ss 2(1), 3(1) of WSME

68 A declaration here means the document of waqf or the pronouncement by the waqif manifesting his intention of giving the given property as waqf for a specific purpose as prescribed in Islamic law. It is not the same as the notice given to public.

69 S 8(1) of WSME recognises the validity of the contingent waqf, provided the waqif according to s 13(a) does not pass away before the condition is fulfilled. A declaration of waqf during marad al-maut (s 7)) and that which is made to be effective after the demise of the waqif (s 8(2)) are subjected to the rule of Islamic will or wasiyyah.

70 S 8(1) of the Malacca Enactment permits such a waqf.

71 ss 1 , 12, 13, 14 WSME. Under 13 the Malacca Enactment 2005 waqf for self interest and if the waqif dies before the condition, under waqf ta’liq (contingent waqf), is met.

72 13(e) WSME

73 Some other examples may be added to legislation. They are: (1) If acted upon the condition, the result will be against the interest of the waqf. For example the condition of the donor prevents people to show interest in waqf property unless the condition of the donor is ignored. (2) The condition of the donor will be ignored if it is against the interest of the beneficiaries, for instance the donor stipulates that the beneficiary shall remain unmarried. (3) Where the fulfilment of the condition conflicts with the objective of the donor. For instance where the donor names an individual as imam, however, such an individual lacks the capacity to lead prayers. (4) Where the ignorance of the condition is in the highest interest of the waqf. For instance a waqf land may be dedicated for cultivation. In times such may not be possible but can be used for constructing building on it. In this case the highest interest of the waqf will demand that the condition should be ignored, otherwise, the donated land will benefit no one including the donor in terms of reward from Allah (swt).

74 See s 5 of WSME which is not clear as whether it implies the interpretation or the right to impose conditions.

75 See s 3 of WSME. The WNSE does not have such provision.

76 s 15(1)(a) WSME

77 This will include a land which has not yield now but has potential for it: s 15(2)(a) WSME.

78 see for definition of property s 2 (property), s 15(1)(c) WSME

79 Under the Malacca Wakaf Enactment, the property, which is restrained, cannot be donated. The Enactment however allows the donation of waqf property which is rented or leased out by Majlis to another party (15(1)(2)(b). Similarly, one can donate as waqf any building or structure or crop on leased waqf land (s16). The Negeri Sembilan Enactment 2005 should such a provision too. It is, however, noted that the meaning of restrained property will apply only to those lands, which are encumbered by obligations such as that under pledge or charges and the like.
1   2   3   4   5   6   7   8   9


Verilənlər bazası müəlliflik hüququ ilə müdafiə olunur ©atelim.com 2016
rəhbərliyinə müraciət