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Current legal issues concerning awqaf in malaysia assoc. Prof. Dr. Sharifah Zubaidah Syed Abdul Kader


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CURRENT LEGAL ISSUES CONCERNING AWQAF IN MALAYSIA

Assoc. Prof. Dr. Sharifah Zubaidah Syed Abdul Kader

Ahmad Ibrahim Kulliyyah of Laws

International Islamic University Malaysia

e-mail: sharifahz@iium.edu.my, shzubaidah@yahoo.com


Dr. Nuarrual Hilal Md. Dahlan

College of Law, Government and International Studies

Universiti Utara Malaysia

e-mail:nuarrualhilal@gmail.com, nuarrualhilal@hotmail.com



Waqf falls under the jurisdiction of the Syariah Court according to List II of the Ninth Schedule to the Federal Constitution. This is further entrenched in the Administration of Islamic Law Enactments of the respective states in Malaysia. Nevertheless, from judicial decisions, ‘waqf’ is still, until today, being determined by the civil courts. In some judicial decisions, waqf issues have been marginalized by the civil courts as they are considered side issues. In consequence, the persons having interest in waqf under Islamic law are deprived of their rights. This paper will elaborate on the series of decided cases involving waqf in Malaysia, examine the issues raised, and will also analyze the judicial decisions made. Such analysis will assist in formulating a future framework for the management and development of waqf lands in Malaysia.
Keywords: waqf in Malaysia – legal issues – jurisdiction and powers of court - judicial decisions – management and development
INTRODUCTION
Waqf is an important institution in Islam, aimed at achieving social justice through a person (‘waqif’) making his property a charitable endowment for the ongoing benefit of a certain class of persons or the public at large.1
The coming of Islam to Peninsular Malaysia in the 14th century brought dramatic consequences to this region, particularly to the way of life and world view of its inhabitants. This includes the practice of waqf in Peninsular Malaysia.2
After Merdeka Day, Islam has again been placed in the highest position, pursuant to provisions in the Federal Constitution.3 Nonetheless, Islam only finds prominence in the rituals and customary practices of the Malays, not in the true sense as it should be (i.e in all spheres of life such as laws, business, administration, economic, politics and government policies). The common law and the laws (common law suited to local needs), passed by the legislature represent the foundations of the law in Malaysia, not Islamic law. Islamic law is limited in its application to family, inheritance and ancillary matters as provided in the Federal Constitution and the respective states’ administration of Islamic law enactments.
In the earlier days of the Malay States, waqf was normally administered by community leaders such as the Kadis, Imams, bilals and the penghulus. After the coming of the British in the 17th century, before Merdeka Day, in the Straits Settlements, Federated and Unfederated Malay States, official trustees were appointed, either by the British-led-administration or the states’ religious councils, to administer and govern waqf. Several laws were passed relating to the administration of waqf. These include the Mahommaden and Hindu Endowments Ordinance, Selangor Administration of Muslim Law Enactment 1952, Pahang Administration of the Religion of Islam Enactment 1956, Terengganu Administration of Islamic Law Enactment 1955, Kelantan Majlis Ugama Islam dan Adat Istiadat Melayu Enactment 1938 and the Johore Wakaf Prohibition Enactment 1911.
After Merdeka Day, all waqf property falls under the jurisdiction and power of the respective states’ religious councils to manage pursuant to the respective Administration of Islamic Law enactments. These enactments include the Malacca Administration of Muslim Law Enactment 1959, Kedah Administration of Muslim Law Enactment 1962, Perlis Administration of Muslim Law Enactment 1963, Perak Control of Wakaf Rules 1959 and Perak Administration of Muslim Law Enactment 1965.
Waqf comprises various kinds of assets, including the following:4


  1. Mosques, suraus, religious schools, etc;

  2. Land for commercial or agricultural purposes;

  3. Land for mosques, suraus, religious schools, cemeteries and orphanages;

  4. Funds for the maintenance and upkeep of mosques, suraus, religious schools, etc; and

  5. Commercial and residential buildings.


THE MEANING OF WAQF 5
Waqf, means ‘detention’ and connotes the tying up of property in perpetuity for the benefit of the public. According to jurist, waqf is the detention of a thing in the implied ownership of Almighty God, in such a way that its profits may be applied for the benefit of human beings. The beneficiaries of the waqf may be the general public or a group of people. Waqf properties may be immovable or movable. Waqf involving lands or houses, are usually used for the settlement of the beneficiaries named or intended by the donor/settlor in his or her waqf’s explicit term, or they may be rented to the public, and the benefits accruing from the letting of the property could then be used to help and assist the beneficiaries towards the specified purpose. Movable properties would include things such as books, fruit trees, even bonds, shares, debentures, unit trusts in company and corporate bodies. They cannot consist of foodstuffs or odoriferous plants or a slave or a coat unless the particulars of the thing are specified to the benefits of the beneficiaries/recipients. Likewise, these also apply to one’s own person and a trained dog. Similarly, if the waqf property consists of shares, debentures, bonds, or equity, the benefits arising from these will similarly be used for the benefit of the beneficiaries as named and intended by the waqf donor/settlor. Usually the beneficiaries named are the needy, poor or orphans or even the Muslim public, but sometimes, they may involve special beneficiaries, who might consist of the donor’s/settlor’s heirs and descendants. The typical practice of the Muslim community in Malaysia on waqf is by stipulating that his or her land shall be used to build mosques or for Muslims’ burial grounds.6
Waqf can be effectuated by way of explicit term, for instance ‘I make a waqf of such a thing to such person/persons’. Likewise, it also can be created by way of implication, by looking at the conduct and acts of the donor, even though there is no definite intention to create it. The moment the owner has done that, the detention then becomes absolute and perpetual in nature, and thereafter, the thing dedicated cannot be sold, given or inherited. A proprietor/settlor who disposes his property as waqf, no longer has ownership over the property because his or her ownership or rights over it ceases immediately after the pronunciation of the waqf terms, and is instantaneously divested into the hands of the waqf administrator or a body entrusted by the Muslim community to administer and maintain the property for the benefit of the beneficiaries/recipients. In Malaysia, the administrator of waqf is more often than not, the respective State Muslim Religious Councils having their own departments and units and their experts and officials to carry out the due administration of the waqf property for the benefits of the beneficiaries named in the waqf. If no beneficiaries are stated, this will be determined by the Islamic jurists based on the injunctions of the al-Quran and traditions of the Prophet Muhammad (peace be upon him - PBUH).
OBJECTIVES OF THE PAPER
This paper highlights problems relating to waqf as decided by courts in Malaysia. The problems relate to:


  1. The jurisdiction and power of the courts (civil and shariah) on waqf; and

  2. Other problems affecting vested interests and rights of the muslim public on waqf, emanating from the decisions of the courts and administration of waqf in Malaysia.

It should be noted that there are other types of problems involving waqf as explained by a scholar, viz7:




  1. The issue of one-third rule of waqf assets. Islamic law of waqf empowers the creator of waqf to dispose the whole of his assets as waqf, unless when he decides this during his death illness or by way of will. In the latter situation (during death illness or by way of will), he can only affect it to the extent of a third. Nonetheless, the waqf will take effect as a whole if his heirs have given their consent to the remainder. Be that as it may, the provisions in section 61 of the Terengganu Administration of Islamic Law Enactment 1955 lacks the provision in respect of waqf inter vivos (the whole waqf). Section 61 only specifies that waqf can only be made in respect of one third of the property. Similarly, this is the position in section 78(1) of the Administration Islamic Law Enactment 1992 of Perak;

  2. The National Land Code 1965 (NLC) does not provide specific provisions pertaining to waqf lands, compared to special provisions in respect of trusts. The person administering waqf has not been included in section 43 of the NLC as one of the receiving parties which the State Authority may dispose land to. This is the main reason that the proprietorship grants of all waqf lands have not been endorsed with a title that acknowledges the waqf. Thus, the status of waqf lands is vague and the possibility of such lands being converted to other purposes by irresponsible parties is very real. If this problem occurs, then the continuation of the fulfillment of the founders’ intention will surely be adversely interfered with. This would in turn contradict the perpetuity requirement for the formation of a waqf according to Islamic law;

  3. Although the provisions under Part 12 of the NLC (the Surrender of Title), Part 14 (Transfer), Part 30 (Registration of Statutory Vesting) can be used to create waqf land, these provisions are lengthy and contain complicated procedures to create waqf and may not guarantee that the intended land will ultimately be taken as waqf land;

  4. The State Authority has the power to grant leases of any land. Nonetheless, to what extent will the proceeds of the lease be applied to the waqf purposes, or will be put in the State Government’s Consolidated Fund? If waqf is to be put under the State Government’s Consolidated Fund, this would create uncertainty as to the purpose of the waqf itself;

  5. Pursuant to section 64 of the NLC, the State Authority can revoke a waqf land under section 64 category, at any time (as the maximum period for grant of lease under section 64 is 21 years), either in respect of the whole land or part thereof. This also may affect the nature of inherent perpetuity of waqf, and thus would be contrary to Islamic law;

  6. The problem of reducing the land revenue payable to the State Authority is also one of the problems in the creation of waqf in Malaysia. Section 196(1)(a) of the NLC provides “No surrender, whether of the whole or a part of any alienated land shall be approved…unless…no item of land revenue is outstanding in respect of the land”. Thus, the surrender of land (for the purpose of waqf) may not be effected unless the outstanding land revenue has been settled by the creator of the waqf. Due to this reason, the proprietors of land are reluctant to donate their lands as waqf land as they could not afford to pay the costs of the land revenue, particularly of lands which are situated in urban and strategic areas as the revenues are higher than those in the rural areas;

  7. Alienation of land by the State Authority nowadays is in the form of lease hold, no longer in perpetuity (freehold) to private individuals and corporation. A perpetuity grant could only be made for the purpose of public welfare or to satisfy the requirements made by the Federal Government to be applied for federal purposes or even to satisfy any special circumstances which the State Authority thinks necessary. Hence, by virtue of this provision, waqf lands which were given with a leasehold title will revert to the State Authority after the expiration of the lease period. It follows that waqf status would automatically void, contrary to the perpetual nature of waqf under Islamic law;

  8. Section 136(1)(f)(i) of the NLC is an obstacle to the development of waqf assets. It prevents the subdivision of any portion of agricultural land of less than two-fifth (2/5) of a hectare. Hence, no separate title can be released for the purpose of the exclusive development and proprietorship of the waqf land;

  9. Problem of no exemption from the local authority rates pursuant to the Local Government Act 1976. Exemption of rates is only applicable to premises or buildings which are used for religious worship, public schools and burial grounds. Thus, waqf properties which are categorized under these premises are exempted from rates but not other types of waqf properties such as commercial buildings;

  10. Waqf properties may still be subject to acquisition by the State Authority for the purpose of public utility and the economic development of Malaysia, pursuant to the provisions of the Land Acquisition Act 1960. Such compulsory acquisition will diminish the rights and interests of the stakeholders under Islamic law relating to waqf; and,

  11. Waqf is still subject to the scrutiny and jurisdiction of the civil courts. The civil courts are usually presided by judges who may not be conversant with Islamic law. Thus, they may tend to decide disputes on waqf and may give decisions which are contrary to the principles of Islamic law on waqf. They may be circumstances whereby expert evidence will be called to the court to guide the court in respect of Islamic law matters on waqf, for example, a mufti. However, the civil court is not duty bound to follow the opinions of the mufti. This can be seen in Commissioner of Religious Affairs Terengganu v Tengku Mariam [1970] 1 MLJ 222.


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