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PRESENTATION OF TERM PAPER FOR ISLAMIC

ECONOMY (IFE 725)

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

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

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 ().

* 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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INTRODUCTION
* 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.

* 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)

* 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]..

* 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 Muslims 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)

* 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 (alsighah).


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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.
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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)
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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.
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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 Ministers 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

(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
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development.

(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 27
its missions more widely. (Siraj 2012)

* 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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