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

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Waqf Property Management

  1. For the sake of accountability and transparency, the Waqf Corporation shall be responsible for the management of waqf property. Its responsibilities will include upkeep, maintenance, dealings in it for keeping it productive; development, regeneration or redevelopment; development and regeneration finance. It will also be responsible for the investment of capital, and the management of its income by way of reserving, paying debts and management fees, and distributing on the beneficiaries. The Corporation shall maintain proper accounts and make them audited, according to the waqf instrument, Islamic law, and other rules and regulations applicable thereto.

  2. The Majlis shall be under duty to manage all consumptive waqf properties such as mosques, religious schools, dormitories, orphanages, old-folk welfare houses, graveyard etc. The Majlis may appoint under certain conditions92 another party to do so. The Majlis93 shall appoint the Waqf Corporation to manage the properties which are dedicated for the interest of the Majlis (as mawquf alaihi) within or outside the jurisdiction.

Protection of Waqf Pproperty

  1. To protect waqf property, the Majlis or the Waqf Corporation shall be under duty not to transfer, surrender, assign, charge or mortgage, and loan94 except in accordance with terms and condition of the waqf instrument, in case the interest of the beneficiaries or waqf reeds it, after leave from the Fatwa Council95 or Court is obtained.

  2. It shall be the duty of the Majlis and the Waqf Corporation to keep the waqf property fit for being used for the purpose it was dedicated. The property shall be maintained and kept under repair. Where the property is wholly or partly destroyed96, under any circumstances97, it shall be redeveloped without changing its status as waqf98. Financing the redevelopment of a land, totally destroyed whatever its cause may be, can be from the income of the same waqf, reserves, donations, state assistance, benevolent loan or any other financing method permissible under Islamic law99.

  3. The Majlis or the Corporation not only shall always avoid risky transaction but also be in possession of the property. In case of any violation of this right, the Majlis or the Corporation shall initiate litigation against the violators. There shall be no adverse possession against waqf property. Any trespass, illegal occupation, unlawful utilisation of the waqf property, without considering the length of time, shall be prevented.100

Asset Management

  1. The waqf property needs the normal task of business management concerning the physical aspect of the property, i.e. protection and preservation of its value (through maintenance, repair, as mentioned above), utilisation, and others. Therefore, it must be the duty of the Majlis or the Corporation to protect and preserve the property, lease it, fix rental rate according to free market value of the land101, collect rental102, claim lost values and rentals103. It will also have the power to evict errant tenants, remodel the property, provide value-enhancing utilities and facilities, insure it against major and known risks (through halal product e.g. Takaful), pay taxes104, if any, and pay zakat105, and provide accounting report for the cost, expenses, and income of all such transactions and services.

  2. There must be an account for each individual waqf property, as entity.106 There may also be a supplementary account for the same waqf where the funds and properties generated through the income or reserves thereof are kept. This is not the same as the reserves account. It is a secondary waqf account and all properties recorded thereunder shall be dealt as non-waqf assets. All properties under this account can be used and disposed, if needed. All matters relating to the management of the account in terms of investment, profit and loss, reserves etc have to be clearly recorded. No property belonging to a given account shall be used for any purpose except for its own incidents, as long the account is productive and in good condition. Any money used for the benefit of another waqf account shall be recorded, repaid with dividends and profits.

  3. There shall be no restriction on the Corporation to establish a common waqf account with objective to keep all waqf funds and properties that are no more serving the purpose for which the waqf was originally established.107

  4. Where the tenant108, insurance company, or a contractor for example fails to fulfil his part of bargain, the Majlis or the Corporation shall initiate litigation. The litigation shall include the eviction of the tenants who is failing to pay rentals. Any nazir leasing waqf property below market value as mentioned above, shall be guilty of an offence punishable with appropriate penalty, dismissal, and if proved guilty, shall be personally liable to pay compensation for the damage he has caused to waqf property.

Investment Management

  1. One of the duties of the nazir is to enhance the value109 and maximise the income-generation of the waqf property. For that purpose, the Waqf Corporation shall have the power to acquire and dispose, develop, rehabilitate waqf property and seek its finance after proper study and planning. The nazir has to take into account payments of taxes, operational costs during the stage of investment planning.

  2. The Corporation as well as the Majlis can create, encourage to be created new waqf both in the traditional sense and in the form of waqf funds schemes that not only can attract new resources but also help the Majlis and the Corporation to finance the development or redevelopment of waqf properties.

  3. the investment decision making shall be based on the following principles: (a) it attracts benefits to waqf, its beneficiaries, or prevents harms there from; it is Shariah compliant, not inconsistent with public interest and is according to the conditions of the donor; (b) the conditions of the donor may not be followed if they result in the dilapidation of the waqf assets, decrease of its income or is not consistent with Shariah principles; (c) has advance strategic investment and financial planning with consultation with Shariah and management professionals; (d) applying waqf assets in new and traditional investment projects such as the development of housing estates, commercial buildings, securities and others; and (e) keeping waqf perpetual (daimumah) so that its income is generated continuously. Based on this principles of investment, the nazir has (a) to manage waqf assets by creating or participating in creating companies, purchase of existing companies, properties, goods, securities, involvement in commerce, industrial and agricultural development businesses (b) to conform to the conditions of the donors in realising waqf objectives, (c) conduct feasibility studies on planned projects, (d) study the financial method intended for the finance of development on waqf land and (e) project management even if its cost is high, or (f) giving agency to other entities or (g) development of the property through other investors.

  4. No investment method shall be adopted if it is not risk-free except that which is beyond the control of the mangers.

  5. The Corporation shall have clear guidelines on the management of income of the waqf assets. There shall be no distribution of income unless it exceeds the expenses for repair and maintenance of the waqf estate. In case the property is in good condition, there must be provision for improvement, potential repair needs, risks associated with property market, currency and investment at a fixed rate. A portion of the income can be deducted for management fees and operation costs which shall not include provisions for physical repair and maintenance of the fixed assets or risk aversion in case of fluid assets.

  6. The Majlis and the Corporation may finance110 the development and redevelopment of waqf property from the income of the same or other waqf assets, reserves, if any111, lease of waqf property, sale of other waqf (e.g. through istibdal), baitulmal, public donation, otherwise, benevolent loan from Islamic Institutions without charging waqf property as security for it, unless it is needed and is in the interest of waqf or its beneficiaries, any permissible scheme112 that does not render the waqf property transferrable to the investor, which is other than a waqf Corporation. 113 Such a loan and some of the financial methods should be permitted by the donor or by leave of the Court as required under Islamic law.

  7. The Waqf Corporation shall manage its finance, through proper planning, directing, monitoring, organising and controlling. An investment decision shall be based on the soundness of a selected financial mechanism in terms of its suitability to the nature of waqf and maximisation profits to the waqf. There shall be a list of financial methods approved by the Advisory board and recognised by regulatory body. Such a list may be changed from time to time, considering the attractiveness of methods. The advisory board shall not only allow the financial method based on its shariah compliance, but also for being less risky, more profitable and easily made available by financial institutions.
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