Waqf and authority

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PRESENTATION OF TERM PAPER FOR ISLAMIC ECONOMY (IFE 725) 1

Transcript of Waqf and authority

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PRESENTATION OF TERM PAPER FOR ISLAMIC

ECONOMY (IFE 725)

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AGENDA

INTRODUCTION

DEFINITION OF WAQF

DALIL AUTHORITY ON WAQF (AL-QURAN)

DALIL AUTHORITY ON WAQF (HADIS)

TYPE OF WAQF AND CREATION OF WAQF

ROLE AND FUNCTIONS OF WAQF IN MUSLIM SOCIETY AND ISLAMIC ECONOMY

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AGENDA

THE HISTORY OF AUTHORITY ON ADMINSITRATION AND MANAGEMENT OF WAQF

MALAYSIAN LAW IN RELATION TO WAQF

THE AUTHORITY ON WAQF IN MALAYSIA AT STATE LEVEL

THE RESPONSIBILITIES AND FUNCTIONS OF SIRC IN RELATION TO WAQF PROPERTY

THE MANAGEMENT AND ADMINISTRATION SET UP OF SIRC ON WAQF

THE AUTHORITY ON WAQF IN MALAYSIA AT FEDERAL LEVEL

CONCLUSION 3

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INTRODUCTION

* All wealth belongs to Allah. We are only trustee of the wealth and to spend

the wealth according to Syariah. In line with the name of Allah (Asma Ul

Husna) Al Ghani and Al Mughni (الغنى ) .(المغنى)

* Al Hud (11:61)

“To the Thamud People (We sent) Salih, one of their own brethren. He

said: "O my people! Worship Allah. ye have no other god but Him. It is

He Who hath produced you from the earth and settled you therein:

then ask forgiveness of Him, and turn to Him (in repentance): for my

Lord is (always) near, ready to answer."

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*Muslims are encouraged to give benevolent gift of charity to others such as

hibbah, sadaqoh, infaq and waqf.

* Al-Imran (3:92)

“By no means shall ye attain righteousness unless ye give (freely) of

that which ye love; and whatever ye give, of a truth Allah knoweth it

well.”

INTRODUCTION

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* “Waqf” literally means ‘detention’ and connotes the tying up of

property in perpetuity for the benefit of the public.

* In Islamic law, “waqf” denotes holding certain property and preserving

it for the confined benefit of certain philanthropy and prohibiting any

use or disposition of it outside its specific objective. An endowment of

money or property made for benevolent reasons. (Kahf, 2007)

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* In Malaysia the definition of waqf is incorporated in the states

enactment governing the Islamic affair or waqf matter for that state -

“eg: Sec. 2 of Wakaf (State of Selangor) Enactment 1999 (No.7

Year 1999), “waqf” means the dedication of any property

from which its usufruct or benefit may be used for any

charitable purpose whether as wakaf am or wakaf khas

according to Hukum Syarak, but does not include a trust

which is defined under Trustee Act 1949 [Act 208].”.

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*Waqf is not one of the Islamic pillars . No clear dalil in Al-Quran which use

the word “waqf” in Al Quran.

* The dalil for benevolence charity gift even more emphasised by Allah SWT

in surah Al Baqarah 2:261

“The parable of those who spend their substance in the way of Allah

is that of a grain of corn: it groweth seven ears, and each ear Hath a

hundred grains. Allah giveth manifold increase to whom He

pleaseth: And Allah careth for all and He knoweth all things.”

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* In Sahih Muslim’s Book of Bequest (Kitab al Wasiyya), Book 13, Chapter

5 on waqf, it stated the celebrated hadith of Rasulullah SAW on waqf

when Rasulullah SAW advised Umar as regard to the land in Khaibar

acquired by Umar

* Rasulullah SAW said “When the son of Adam

dies, all his good deeds come to an end except

three:ongoing charity, knowledge from which

others may benefit after he is gone, and a

righteous son who will pray for him." (Sahih

Muslim)

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* 2 types of waqf –

(i) Waqf khairy or waqf am; and

(ii) Waqf ahli.

* (i) Waqf khairy or waqf am

A dedication of a property in perpetuity without any specific

purposes or terms and conditions set by the person who created the

waqf (waqif), as regards to the usage, beneficiaries who entitled for

the waqf property and the revenue derived form the investment of

the waqf property. If there is terms and conditions by the waqif on

the waqf property, it is known as waqf khas .(Siraj 2012)

* (ii) Waqf ahli or waqf dhurri

A family waqf which is created by the waqif exclusively for the

benefit of family members (including the founder) with two main

objectives.

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First, waqf ahli was created to keep the properties of family intact, to assure

the entitlement of beneficiaries for the duration of the objects, and to

regulate the transmission of usufructory rights from one generation to the

next (Powers 1993).

Second, waqf ahli was utilised to limit fragmentations of real property

through the Islamic inheritance laws or confiscation by rulers and the state

(Doumani 1998; Lev 2005).

* For the purpose of creation of waqf the are four

pillars to be satisfied which are –

(i) the person who created the waqf (waqif),

(ii) the waqf property (al-mauquf),

(iii) the beneficiary of the waqf property (al

mauquf alaihi); and

(iv) the legal statement for creation of waqf (al-

sighah).

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*When a muslim creates waqf, he give away his right of ownership to his

property to the State or Baitul Mal in perpetuity for the State or Baitul Mal

to manage, administer and use the property for the purpose of public

interest at large, but subject to the terms and conditions set out by him.

(Siraj 2012)

*Waqf play great role in the society and the

economy of Islamic state, where it will be used

by the state or baitul mal for the specific

purpose as specified by the waqif such as,

school, hospital, mosque or even graveyard for

example the University Al Azhar in Cairo, the

University of Cordova Spain, and the Al Noori

Hospital in Damascus. (Ahmad Zaki et al., 2008)

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*Waqf property would ease the burden of the state to provide public

facility and capable generate income when the state collecting its

revenue from the rent out or lease of the waqf property. The revenue

derived will be rolled over by the state for the benefits of muslim

society.

* In 2009, the are about 10,000 hectares

undeveloped waqf land value at RM1.9 billion,

only 0.72% is being develop (Utusan Malaysia,

2009).

* Shows that muslim in Malaysia is well aware of

waqf but also shows the weakness part of the

authority to develop the waqf property to its

maximum potential of generating income

revenue to the muslim society and the state

economy.13

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* No clear evidence on the authority body managed and

administered the waqf property systematically during

the time of Rasulullah SAW or the Khulafa Ar-Rashidin as

waqf is not commonly practice during that particular

time.

* The management of waqf is actually a private management in nature -

(i) The owner of the property who waqf the property (waqif) may manage and

administer the waqf himself or he may appoint another party as a trustee

(mutawalli) to manage and administer the waqf property in accordance to

the terms and conditions set by the waqif.

(ii) The appointment of mutawalli has to be documented in a trust deed called

waqfiyya outlining in detail the purpose of the waqf, the duty and

responsibilities of the mutawalli, compensation for the mutawalli for his

effort on managing and administering the waqf, if any (Siraj 2012)14

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* The Hanafi and Syafie school of laws allow the waqif or member of the waqif family to

be the administrator to the waqf property. The Maliki school of law does not allow the

waqif or his family member to be the administrator.

* Waqf was at its peak during the Ottoman Empire

(1299-1923). The supervision on the public waqf

property is by the Islamic courts. The private

waqf, the management and administration is

either done by the waqif or mutawalli. Towards

the end of the Ottoman Empire, the supervision of

the private waqf and public waqf was transferred

from individually or the Islamic courts to be

directly under the the Ministry of Waqf (Mohsin

2009).

* Presently, the main purpose for the government to become the trustee for waqf

property is for reorganisation, modernisation and development of waqf institution

which would not always be feasible by private entities or individuals (Siraj 2012).

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* In Malaysia, the matters related to waqf fall under the jurisdiction of

the states and not under the jurisdiction of the federal authority.

* The relevant laws stating the jurisdiction are the Article 3, 74, 77,

List II, the State List of the Ninth Schedule of the Federal Constitution and

the sec. 25 of the Civil Laws Act 1956.

* Waqf is under the Administration of Islamic Law Enactment of each

states in Malaysia for example -

(i) Administration of Islamic Law (Federal Territories) Act 1993 (Act

505),

(ii) Wakaf (State of Selangor) Enactment 1999 (No.7 Year 1999),

(iii) Wakaf (State of Malacca) Enactment 2005 (No.5 Year 2005); and

(iv) Wakaf Enactment (Negeri Sembilan) 2005.

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* Some federal laws of Malaysia applicable to the administration

and management of waqf immoveable property.

(i) The National Land Code 1965;

(ii) Trustee Act 1949 (Act 208);

(iii) Specific Relief Act 1950; and

(iv) Contracts Act 1950. (Nor Asiah, 2012)

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* The State Islamic Religious Council (SIRC) was

appointed by the states enactment governing

the Islamic affairs as the sole trustee of the

waqf property for the purpose of improve the

efficiency and effectiveness of the

management of waqf. SIRC are provided with

the authority to appoint any individual or a

committee to act as its representative to

execute the administrative duties of the

trusteeship of the waqf property (Siraj 2012).

* Two main functions of SIRC are to –

(i) assist and advise the Rulers or Governors on matters relating to

Islam and Malay customs; and

(ii) develop policies on Islamic matters which include matters related

to waqf. SIRC is the highest authority on the administration of Islam

in state governments.18

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* 4 main responsibilities and functions of SIRC on waqf –

(i) is to ensure that the waqf property manage and

administer by them is being used, spend or utilised in

accordance to the purpose and terms and conditions set

out by the waqif . All the relevant documents in relation

to the waqf property shall be in the safe keeping of the

SIRC. If the waqf property is involving land, SIRC shall be

responsible to transfer the rights of ownership from the

waqif to SIRC and to maintain the waqf land or building.

(ii) to safeguard of the waqf property where the SIRC may develop and apply

specific laws, rules and procedures to govern the management and

administration of waqf property both on the administrative and financial

aspects.

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(iii) to develop the waqf property manage and administer by them. The

SIRC is responsible to find investors or to create a joint

development with an investor, to develop the waqf property in

accordance to the terms and conditions sets by the waqif when he

created the waqf.

(iv) reporting of the performance of the waqf management. asserted

that the lack of transparency in the management of waqf

contributed to the lack of public confidence to endow their assets

and funds as waqf. Each state enactment states the requirement to

produce relevant financial statements and accounts mainly for the

purpose of auditing and reporting (gazetting). (Siraj, 2012)

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* 3 types of administration set up of waqf property by the relevant SIRC -

(i) Penang SIRC set up a specific waqf division to be in charge of the

overall management and administration of waqf. Its allow

concentration on its objectives and maximize it human resources.

(ii) Most of SIRC set up a sub unit for waqf in a division which is also

responsible and in charge of the zakah and baitul mal. This type of set

up are employed by Perlis, Kedah, Perak, Selangor, Negeri Sembilan,

Malacca, Johor, Pahang, Terengganu, Kelantan, and the Federal

Territories of Kuala Lumpur.

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* SIRC also is authorised to set up a special committee with the objective to

strengthen the management and administration of waqf. For instance,

(a) Selangor : the Wakaf Management Committee.

(b) Perak : the State Wakaf Control Committee

(c) Federal Territories of Kuala Lumpur : the Development and Investment

Committee to deal with the development and investment of waqf

property.

(iii) Corporatisation of the baitul mal management,

which is also responsible for the management and

administration of waqf for the improvement the

effectiveness and efficiency of the delivery

systems. Sabah and Sarawak has corporatised their

Baitul Mal

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* At the Federal level, the affairs of Islamic matters are under the supervision

of a Minister in the Prime Minister’s Department. The federal government

has taken its initiative to play its integral role assisting the SIRC to overcome

some of the common known problems to the SIRC in managing and

administering the waqf property and the development of waqf property.

* The common problems face by the SIRC are as follows -

(i) Legal aspects: Various states laws enactment and lack of standardization

of such laws would have lead in different of the implementation of waqf

property management.

(ii) Financial resources: Lack of financial resources of SIRC are the main

reason for undevelop waqf property. The private and commercial sector

is not keen to develop waqf land due to its restricted purposes as set out

by the waqif and the return of their investment and profit of developing

the waqf property may takes a long time materialise through rental or

lease of the waqf property. Financial support from the federal

government is very restricted.23

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(iii) Human resources: Two major problems face are due to lack of the supply

for human resources and lack of expertise of the human resources to

undertake the management and administration of the waqf property.

SIRC require the expertise in the field of investment, project

management, marketing or property evaluation for the purpose of

developing the waqf property to its full potential usage and purpose.

(Siraj, 2012)

(iv) Waqf property : Some of the development of the waqf property is being

hampered due to the nature of the waqf property where some of the

waqf property is under a leasehold and not perpetual in nature or non

existence of land title to the waqf property. Some of the waqf property

are located in the rural area or due to the insignificant size of the waqf

property, which does not commercially potential to be develop.

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(i) Jabatan Kemajuan Islam Malaysia (JAKIM)

Established in 1 January 1997. Its objective is to develop and establish policies on

the development and advancement of Islamic affairs in Malaysia, to promote the

sanctity of Islam, coordinating the process of enacting and uniformity of the

implementation of the procedures and islamic states laws. JAKIM works closely

with the SIRC in the planning and the implementation of Islamic affairs are

consistent throughout the 14 states in Malaysia. JAKIM is directly involve with

the improvement of the process and procedure for waqf property management

and administration in the respective state.

(ii) Jabatan Awqaf, Zakat dan Haji (JAWHAR)

Its primary objectives is to strengthen and systematically improve over all

management of waqf property in Malaysia. Its Waqf Division has set out

fundamental objectives with regard to the waqf management and administration

by SIRC such as coordinating the waqf administrative systems, overseeing the

overall development of waqf and providing advisory services for organisational

development. 25

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(iii) Yayasan Waqaf Malaysia (YKM)

On 23 July 2008, the federal government through JAWHAR has established Yayasan

Waqaf Malaysia. Yayasan Waqaf Malaysia was set up under the Trustees

Incorporation Ordinance 1952 following the resolutions of the National Waqf

Convention held in 2006. The vision of Yayasan Waqaf Malaysia is to be the leading

organisation in strengthening the ummah agenda through enhancing the waqf

instrument.

There are 5 main fundamental objectives for the establishment of Yayasan Waqaf

Malaysia which are as follows -

(i) To accumulate waqf fund or porperties

Yayasan Waqaf Malaysia shall conducting programmes to accumulate funds for

the Tabung Kumpulan Wang Amanah Yayasan as economic capital for the

Muslim society.

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(ii) Developing waqf properties

In collaborations with the SIRC and institutes of higher learning, Yayasan Waqaf

Malaysia shall do research to develop and enhance waqf properties

(iii) Investment of waqf properties

Yayasan Waqaf Malaysia shall invest the available of waqf funds or properties in

Syariah compliant activities and programmes. YayasanWaqaf Malaysia has actively

makes investment of the waqf fund such as hotel management, constructing shop

lots for rental and education such as Akademi Kulinari Terengganu

(iv) Social and welfare programmes

Yayasan Waqaf Malaysia shall also be involved in social and welfare programmes

such as sponsorship of students’ learning programmes and providing necessary

assistance to the needy and the poor.

(v) Promotions and publications

The Foundation shall engage in conferences, seminars and intellectual discourses

as well as publications to disseminate its missions more widely. (Siraj 2012)27

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*Needs for a more reform and uniformity of waqf management and

administration in Malaysia especially in the legal frame work and financial

aspect.

* It is suggested a standard laws in relation to waqf be enacted and be

adopted by each state so that there are uniformity in the law with regard to

the power and authority for the development of waqf property.

* The financial aspect for the development of waqf property should also need

to be look into. It is clear that due to lack of financial resources, most of the

waqf property was not being able to be developed.

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