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

80 s 2(1) WNSE is the most revolutionary which needs to be followed by other states; 2 (1)(property), s 15(1)(c) WSME; s 2(1) Section 2(1) of the Administration of the Religion of Islam (State of Selangor) Enactment 2003;

81 This is not explicit in legislations so far. The Malacca Fatwa 2009 on the cash shall be made part of legislation.

82 This is to include copyrights in any work produced by a waqif.

83 where cash is exchanged for a share in the immoveable property, or invested in business and its income is distributable on the beneficiaries.

84 The Malacca Wakaf Enactment 2005, (s 11(1)), considers a declaration invalid if the beneficiary is the waqif (s13(d)). This provision needs to be revised or modified for two reasons: there is apparent conflict between s 13(a) and s 18 (if the waqf is a waqf am the waqif can be one of the beneficiaries), and under classical fiqh this is otherwise.

85 s 11(2) WSME

86 See to the same effect s 4 and s 50(1)(2) WSME. This section however shall be read together with s 8 WSME, which permits contingent declaration that comes to effect only after the happening of the given event.

87 see s 4(2) WSME

88 Current law does not recognise such a distinction. The income of a waqf if converted to a waqf is treated perpetually non-transferrable: s 27(2) empowers the Majlis to purchase property from the money in the waqf fund and declare it as waqf.

89 S 17(a)(b) WNSE

90 S 51 WNSE

91 S 6 WNSE

92 S 31(1) WNSE

93 S 31(2) WNSE excludes the delegation of such a power to another entity. This subsection needs to be deleted.

94 S 9(3) WNSE

95 S 9(3) WNSE

96 S 32(1) WNSE

97 S 32(3) WNSE provides otherwise. There should be no exception as long the land has potential for profitable development.

98 S 32(2) WNSE

99 S 32(1) WNSE mentions waqf fund as the source of financing the redevelopment of the ruined property. this can be one of the source. the section also mentions other sources, but is not clear. Under s 37 of the Malacca Wakaf Enactment the Majlis is empowered to use the usufruct of the waqf for this purpose.

100 Currently the Negeri Sembilan law is quite clear about the course of actions to be taken against the wrongdoers, by the Majlis on its own, or in the courts of law. See part viii and part ix of the Waqf (NS) Enactment, 2005 of the offences, enforcement, and the powers of Shariah and civil courts

101 A rental fixed below market value is considered ghabn on waqf. If it is viewed as ghabn fahish the transaction will be invalid according to fiqh. The rationale for this is the nature of the waqf designed to maximize income for the beneficiaries. Any reason that contradicts this rationale will be invalid if it results in renting out the waqf property for less than market value.

102 s 15(1)(2) WNSE;

103 s 40 WSME

104 This item may not be present where waqf property is tax-exempted.

105 The predominant view among jurists is that it should pay the zakat.

106 This view is supplementary to the present form of the waqf fund where all waqf proceeds and income is kept (e.g. s 39 WSME). In contrast to zakat there can be a waqf fund, but this fund shall have individual accounts for each property.

107 This can be in line with that under s 38 of Malacca Enactment.

108 s 15(3) WNSE

109 s 34(c)

110 Section 32(1) WNSE is not clear as about the type of fund and other financial resource. A clear guideline is needed for the purpose.

111 See Mohammad Tahir Sabit (2006) Conceptual Obstacles to the development of waqf property.

112 This will include all methods whether debt based or otherwise. For further information see Mohammad Tahir Sabit, (2006) the Innovative Modes of Financing the development of waqf properties.

113 It is the opinion of this writer that where the waqf fund or a waqf bank lend funds to another waqf the lender should be entitle to claim the property of the borrower waqf when the latter is proven to be insolvent.

114 s 12 WSME

115 s 38 WSME

116 section 20(1)(a) WSME

117 section 19 WSME

118 s 17 WSME

119 S 20 WNSE

120 The current section 29 of WNSE concerning the financial report of waqf fund can be amended to include all assets of the waqf under the care of Majlis or the Waqf Corporation, and include headings needed for a corporate entity as long it concerns the productive waqf assets.

121 The new law of Negeri Sembilan (and Malacca to an extent) is comprehensive in many aspects.

122 s 35(1)(a)-(d), s 36(1), 37(1), s38(1), s 40 WNSE

123 s 35(5) WNSE

124 37(2)(3)

125 s 38(2)

126 s 35-38 WNSE

127 s 45 and 48 WSME

128 s 38

129 ss 35-38

130 ss 43-45

131 s 46-49

132 s 39

133 At present the Shari’ah court has the jurisdiction to decide on matters relating to waqf provided the dispute does not involve none-Muslim. Civil courts are still jealous of relinquishing jurisdiction to Shari’ah courts even though the spirit of the Art 121(1A) requires otherwise. One would presume, in a multi-religious society there would still be single body of law with many arms of equal strength and justification, dealing with issues of different colour. Art 121(1A) may have achieved that aim should the parties involved have appreciated that spirit. Contrary to that spirit, the civil courts try to decide on matter falling within jurisdiction of Shari’ah courts, despite an ongoing hearing on the same issue in Shari’ah court. It is often argued by judges in civil courts that Shari’ah courts have not been given expressly the power to issue orders for enforcement of its declaration. Surprisingly they may have a point, and this make the legal framework for waqf unclear and confusing. As it is hopeless to see immediate corrective ruling made by civil courts, there is need for legislative intervention. It is to be noted, the issue of summon, writs, injunction and other order is easy to tackle, the involvement of non-Muslim in a related dispute is contentious. A temporary solution perhaps is that a declaration by Shari’ah court be made first; only then the civil court can hear the argument put forward by a non-Muslim. Additionally, in all fairness and rationality, putting prejudices aside, a qualified lawyer will be able to defend the rights of the non-Muslim in Shari’ah court, the same as a Muslim is expected to do so in a civil court, perhaps against his wishes.

134 s 43 WSME

135 s 44 WSME

136 s 35 (2)

137 s 35(4)