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

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The Management Committee

  1. This committee should consist of the servants and officers of the Majlis who are trustworthy, some of whom must have professional qualification. It will be responsible to carry out any direction, policy, and decision made by the Majlis in relation to any mawquf; to supervise, arrange, manage, and administer the mawquf; to develop, improve, and upgrade the mawquf.22 The Committee can also do istibdal on waqf land provided approved by the Majlis23 and is according to rules of istibdal.

The Waqf Corporation

  1. There can be a waqf Corporation (a government/Majlis linked organisation) in charge of collective management of all productive waqf properties. All such properties including those solely dedicated to the Majlis (Majlis being the mawquf alaihi) can be managed by the professionals of Waqf Corporation. The Corporation will be accountable to the Majlis who shall work according to its general guidelines, and be supervised by the Majlis.

  1. The institutional set-up of the Corporation must be divided into two: the Advisory Board (which shall be the same body responsible for advising the Majlis) and the professional branch. The professional branch should consist of professionals having qualifications such as legal, Shari’ah as well as economic, management and other fields of relevant sciences.

  1. The Corporation shall have the powers to protect, manage, invest and develop waqf properties in a manner that puts the properties under its care to the best use and retain the highest value. The Corporation will have the highest standard of the duty to manage the properties, in good faith, due care, diligence and utmost skill and professionalism. The breach of any of these duties, if proved, will not only make the Corporation legally responsible but also subject the managers and servants of the Corporation personally liable.

  1. The Corporation in no way whatsoever should affect the legal personality of each waqf registered with the Majlis. Where the Corporation is appointed by the waqif as the trustee, it can delegate its responsibilities and powers to individual trustee for a given property or recognise the trustees appointed by the waqif who shall manage and be answerable to the Corporation, in line with guidelines drawn by the Corporation for the management of the properties under their trusteeship.

  1. There must be a document that forms the constitution of the Corporation. Such a document shall leave room for applying the terms and conditions spelled by the waqif. Other terms implied by law and the principles of Shari’ah should also be read into the document. Additionally, the constitution shall include the powers, functions, the duties and the liabilities of the managers, and the employees, including those listed below.

The Appointment, Removal, and Disqualification of Managers, Servants and Individual Trustees

  1. Against the prescription of s 32 WSME , 5 WNSE, and other State as well as Federal laws24, there is need to recognise the freedom given to the waqif under Islamic law to appoint and dismiss the nazir.25 The same power can be vested in the nazir (the Corporation) to appoint a substitute trustee or the manager for waqf property according to the waqf instrument. Hence, nazir, the Majlis and the Corporation can appoint their substitutes who may have the same powers, authority, and discretions provided for in the instrument of waqf or the written document. Similarly, the court shall be permitted to appoint the trustee and manager. The fiqhi principles need to be codified explaining in detail the circumstances under which one of the above parties can appoint the nazir.

  1. The Majlis or the Corporation should appoint competent and qualified servants who can manage, develop and invest waqf assets26 and manage and distribute its income in the interest of the beneficiary27 or the waqf28, according to the rules provided in the relevant laws relating to waqf.

  1. The Majlis or the Corporation may engage professionals29, for a fee30, including but not limited to, lawyers, accountants, bankers, property managers, financial advisors etc as advisor, agent, and employee. The Majlis and the Waqf Corporation shall be under duty to act in the interest of waqf, and thus to act in good faith without neglect, and exercise due skill and care in the selection of any agent31, advisor, and employee. All such professionals shall be subjected to professional liability.32 Both the professionals and ordinary servants of the corporation should be subject to a higher standard of duty of care, which will make them liable if there was any evidence of negligence or conflict of interest or any act or omission considered breach of duty under any law relevant to the protection of waqf.

Criteria for Appointment and Removal

  1. The prime criteria for appointment of a nazir (trustee or a manager) should be amanah (trustworthiness) and kifayah (skill and professionalism). To realise the distinct nature of waqf (i.e. a cross between public, private sector and NGO), other special qualifying criteria such as volunteerism, altruism etc must be considered additional qualifying factors for appointment where are equal. The Corporation shall appoint managers (nazir) and employees who are not only trustworthy but also must have special skill valuable for the management and administration of waqf properties; who can work independently and professionally, and is not influenced by politics and bureaucracy.

  1. A trustee can be removed based on natural and legal incapacity. While embezzlement and misappropriation of the funds shall disqualify the trustee, negligence and the lack of good performance and not putting the waqf properties to the best and highest use as demanded by the established standards of the business community can be considered additional factors for removal of the trustee.

  1. Under an efficient mechanism the trustee should be subjected to individual scrutiny as well as property and financial management tests. Proper corporate-like accounting and audit system shall be in place whereby all dealings made by the trustee, in the productive properties, are properly entered and examined.

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