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

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Legal Personality of Waqf

  1. Each waqf declaration under Islamic law creates a legal person. It is therefore an entity, institution and a legal person by itself. The administrators, managers or institutions in charge of waqf properties can be treated as the nazir who owe a duty to the waqf entity alone. For practical purposes an umbrella organisation consisting all or a group of individual waqf entities (represented in the form of waqf properties) should exist, which should be responsible for the management of waqf properties. No property can be recorded under its name. Such an organisation hereafter is called Waqf Management Committee as for consumptive waqf properties and Waqf Corporation for productive.

  1. In the context of Malaysian land and financial laws it is prudent to recognise waqf as institutional entity that has legal personality5 which is capable to sue and be sued, own land in its own name, and exist in perpetuity. Public and corporate bodies and entities are accorded such a status under Malaysian law. It is now time to accord such a status to waqf too, in order to safeguard the assets of waqf, and facilitate conducive development environment for its assets.6

In Malaysia as the Majlis is the sole trustee, all waqf properties are vested in the Majlis Agama Islam of a given state in the federation of Malaysia. This is evident in all state Enactments.7 Following the civil law principle, the ownership of the trust property is vested in the trustee. This, it seems, is extended to waqf properties too.8 This is not entirely correct from fiqh perspective9, but also it endangers waqf properties10. Once mixed with other properties of the Majlis it may lead to the loss of waqf properties in some point of time. Legally speaking, the properties of the Majlis may be subjected to liabilities. Further, as long as the Majlis is part of government, the restrictions inherent to it, may negatively affect the waqf properties.

Waqf Intuitional Structure

  1. A good institution is as urgent as the good administration, management and development of waqf properties. For this reason, there shall be powers vested in Majlis to register, regulate, monitor all and manage consumptive waqf properties. Similarly, subject to the aforementioned powers of Majlis, there must be a waqf Corporation that can manage productive waqf properties independently and professionally.

Figure 1. Organisational structure of Waqf Institutions

Administration and Management

The Majlis

  1. In addition to a limited function under section 5 (1)(a)11 of the Wakaf (Negeri Sembilan) Enactment (WNSE) 2005 and similar provisions in other laws (that shall make the Majlis one of trustees) it is suggested that the Majlis should have mainly regulatory and supervisory powers. It can also be the manager of consumptive lands and properties. Therefore, it can be in charge of registering12, regulating, and monitoring the administration and management of waqf properties including those under its management and administration13.

  2. Only consumptive properties (i.e. mosques, schools, orphanages, welfare houses, and graveyards) can be administered and managed14 by the Majlis. Where the property of the consumptive waqf need utilisation as seen appropriated by the Majlis, the management thereof can be delegated to the Waqf Corporation, the latter being accountable to the former and the former being sole recipient of the income after deduction of management charges by the Corporation.

  1. The Majlis may have the advisory board as well as the waqf properties management Committee. While the former will be responsible to advice on policy and regulatory matters, the latter can be the executive committee that is responsible for the enforcement of the policy and the administration, planning and management of the consumptive waqf properties.

Advisory Board

  1. There must be an advisory board established by the Majlis15 which can, but not limited thereto, draft organisational policies, advice and control and monitor the general activity of the Majlis and the Corporation including administration, management, investment, development and finance16.

  1. The board shall have the power to establish specialised committees, and incur expenses for the purpose,17 as well as in carrying out functions as advisory board or the payment of allowance to the members of the board18. The Advisory Board may undertake or contract out research and development studies, paid for from a fund dedicated to the purpose.

  1. The Advisory19 Board shall consist20 of individuals having policy, legal, and Shari’ah expertise appointed by the Majlis from within or outside. The Mufti, the secretary of the Majlis, State Legal Adviser, and State Director of Land and Mines shall be the permanent21 members of the Board. Other members shall be State Financial Officer, independent scholars and practitioners in professions relating to Shari’ah, law, property management, investment and finance management.

  1. The view of the board on consumptive waqf property as to their planning and management would not be more than recommendations. All policies and activities approved by the board, however, shall be binding on the Corporation as if they were approved by the Mufti or the Majlis fatwa. This however shall not prevent the Corporation, but not a precondition for the application of the advice given by the board, from letting the Majlis Fatwa pass ruling to the same effect. The Corporation will be still bound to apply for leave of court when and as necessary under Islamic law.

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