A Proposal for a New Comprehensive Waqf Law in Malaysia
Mohammad Tahir Sabit Haji Mohammad, PhD
Department of Land Administration and Development
Faculty of Geoinformation Science and Engineering
Universiti Teknologi, Skudai, Malaysia
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Waqf assets, if regulated properly and managed according to sound principles, may grow in trillions which will certainly have enormous positive impact on the poor and marginalised of a given society. Keeping in mind the potential of waqf institutions in enhancing the economic development of the society, two issues should be the focus of attention of the policy makers: reforming the management style of waqf organisation and the enactment of laws that provides an environment conducive for the growth of waqf activities. This paper touches on both the issues.
A brief review of the existing waqf laws calls for an urgent reform of these laws. This is needed even though recently some laws have been improved on compared to those passed in the 20th century. The Negeri Sembilan Enactment, 2005 followed by that of Malacca are the examples which are quite detailed. Nevertheless, these laws still lack rules that can provide for effective organisational administration, appropriate assets management, and innovative Shariah compliant financial mechanism that can facilitate waqf institutions to develop and revive their properties, or manage their assets as required under fiqh for the interest of waqf and its beneficiaries.
This paper proposes some important amendments to the aforementioned contemporary laws.
This paper is based on the appraisal of the existing law which proposes a comprehensive code of waqf law that deals with full uniform legal framework for organisational structure of waqf institutions, legal personality of waqf, the creation of waqf, its validity, its registration, administration, management, and protection of waqf property throughout Malaysia.
The Malaysian law on waqf can be divided into two categories: the old, and the new. The old laws go back to a period prior to 80s of the past century. The new laws may be categorised as such from the 80s onward beginning with Kaedah Kaedah Wakaf (Johor) 1983. The new laws will include in addition to the Kaedah Kaedah Johor, the Selangor Wakaf Enactment, 1999, the Negeri Sembilan Wakaf Enactment, 2005, and the Malacca Enactment 2005. States that have not enacted separate law about wakaf are having few provisions in their respective Enactments dealing with general issues of Islamic law (the Administration of Religion of Islam (Islamic Law), Enactments). The laws of this nature passed after the third millennium (2000) are also considered new. A sense of reform is observed in the first category largely while it is at minimum at the second category. However, in both categories the reform is not far reaching enough to tackle the majority of problems entangling waqf properties.
This paper contains a basic proposal made after the evaluation of these new laws. The paper presents rules that should be contained in the new law. Rules enacted in the existing laws sometime are made part of this draft proposal and reference to the relevant section of the given law is made in the footnote. Occasionally, it rationalises the proposed rules; other times, it omits to do so for the sake of brevity. Some proposal for deleting provisions in the existing laws or the difference between the existing provision and the proposed ones are mentioned in the footnotes. The writer considers some section of the existing laws (e.g. that relating to enforcement) perfect at this stage, thus gives mere reference to the scheme and content of the relevant sections. This is a rush work; it is just an idea that needs further thinking and refinement.
The proposal is based only on the Negeri Sembilan Wakaf Enactment, 2005, and the Malacca Enactment 2005, as these two laws are the most recent and relatively comprehensive compare to Selangor and Johor laws. a brief mention of the Administration of Religion of Islam (Islamic Law), Enactments is also made, but as most of these enactments carry similar provisions reference to Selangor, Negeri Sembilan and Malacca Enactments relating to the Administration of Islamic laws is made.
The main proposals contained in this paper are the recognition of legal personality for individual waqf, the corporation, and Majlis, the new institutional structure for waqf management, the nature of waqf instrument and its effect, the management of waqf properties, and accounting thereof. Other minor proposals are made too, which are discussed on sections on registration, creation of new waqf offences, monitoring, and power of courts.
Today, what is understood from the term waqf (also referred to as wakaf) is the following: (i) an entity or institution, as recognised by early jurists, (ii) a concept of charitable endowment under Islamic law, and (iii) the property donated for purposes mentioned under the concept of waqf which is evidenced in its declaration. The definitions offered by Malaysian law1 are of the third category in the above list.
The Classification of Waqf
The Administration of the Religion of Islam Enactments and Waqf Enactments2 divide waqf into waqf am and wakaf khas the same as in the old version. Additionally, waqf is also classified as irsod (of land belonging to baitulmal, government, Corporation), muabbad (perpetual), musyak (dedication of an undivided share in a jointly owned property), or musytarak (the consolidation of waqfs into one e.g. created through istibdal, or waqf shares)3. It is perhaps time to divide waqf based on the usage of the subject matter. This is to say, waqf may be income generating or otherwise; some called it consumptive and beneficial4. The last classification may help the financial planners, accountants and others to adopt appropriate approach to the properties of the particular waqf based its income generating capacity.