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Waqf Paper PDF
Waqf Paper PDF
PHD PROGRAM
(i)
TABLE OF CONTENTS
Pages
Abstract (i)
a) Islam as Religion
Thus peace is contrasted to a state of war/chaos and this peace is not of the
present only but also of the afterlife. Submission and total surrender is
contrasted to false, temporary surrender or surrender with conditions. The
will of Allah is to be contrasted to the free will of Man or any other will (anti-
God) that may have misguided Man. This will if approached in the legal
context renders man subject to duties, obligations, actions that carries
positive, neutral, negative (rewards and punishments). The will of Allah also
entails that accountability for action may be extracted from us in the
present lifetime or in the afterlife.
This will personifies itself into the two primary sources of Islamic law (the
“Shari’ah” literally meaning “the path to water”). The sources are the Al-
Quran and the Sunnah/Hadith of the Prophet Muhammad s.a.w.
1
b) The notion of Comprehensiveness
In discussing originality, Islam traces its routes to the Creator (Allah) who
created was is now, what has become, what will be in the future and is the
owner of all. The challenge to the disbelievers to produce a Surah identical
to one of the Al-Quran is the test of originality of Islam.
The above covers our whole existence prior to conception till the Day of
Judgment as per what is now believed to be the last Ayahs revealed to the
Prophet s.a.w.
2
Q 2-281:- And fear the Day when ye shall be brought back to Allah.
Then shall every soul be paid what it earned, and none shall be
dealt with unjustly.
What makes us so deserving of a gift, the whole reason remains with Allah
but since the gift is clear, it create certain obligations on us and one of it is
to relief the hardship of our fellow men. The prevalent term being used is
“charity” and Islam has elevated “charity” to such a high-level namely the
obligatory (zakat), the recommended (mandub) as per the following:-
Q 5-55:- Your (real) friends are (no less than) Allah, His
Messenger, and the (fellowship of) believers, - those who establish
regular prayers and regular charity, and they bow down humbly (in
worship).
3
Whilst Q 96 1-3 has been viewed as the first revelation, there are
others who opined that Q 96 1-5 as being the first, namely Ayahs
4-5 “Day, but man doth transgress all bounds. In that he
looketh upon himself as self-sufficient”.
4
This model of “selflessness” permeates throughout Islamic
Economics. Contrast this model with the “self-interested” model
of Classical Economics. ‘Selflessness” does not mean surrender to
the will of Allah (for Allah will is unknown, man remains a “free
agent”). Thus the Prophet s.a.w admonished the Bedouin for not
tying his camel. Selflessness entails surplus thus a rich Muslim
is preferred to a poor Muslim.
5
b) Islamic Economics as derivatives of Ijtihad
The Al-Quran and Sunnah gave the parameters and guidelines pertaining
conduct within the economic realm. Islamic Economics recognizes the role of
consumers, producers, the government’s role, the role of international trade,
the role of money in facilitating trade, the role of the market, market
imperfections, the price mechanism etc. These activities are to be conducted
within a “riba-free”, maysir-free (speculation) and gharar-free environment.
This remains the model par excellence however the human condition of
varying levels of “taqwa”, the competition from non-Muslims, the disparities
between nations etc does not entail the ideal.
Sait & Lim (2005) cited The Qur’an contains no specific reference to the
endowment (waqf) and its legal parameters have been developed through
centuries by jurists. It is inspired from repetition and emphasis upon
charity within Islam as an act of devotion to God. In the Sunnah, waqf is
seen as a legacy from the tradition of the Prophet Muhammad s.a.w. when
he 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)
‘Ongoing charity’ in the said hadith is the basis of waqf. What developed
since is an institution developed out of “Ijtihad”.
6
The decline of Islam has been commented as related to the decline in Ijtihad.
Perhaps this remains a simplification, the author points towards disunity,
the secular approach of some Caliphs post Ali Ibn Talib, the repression
meted out to scholars and perhaps lack of “religious” leadership who saw
rebellion as a valid weapon against tyranny as opposed to “non-violence”
methods.
Shariah is all encompassing; it does not embrace the obligatory only but
also includes the much preferred notion of charity. Interlinking this with
waqf, it is logical that waqf serves the objectives (Maqasid) of the Shariah.
What is more pronounced is that the institution of waqf impacts the three
overriding objectives namely Educating the Individual, Establishing Justice
(Adl’) and Consideration of Public Interest (Maslahah) clearly. In retrospect,
the preferred in Islam impact all three objectives to varying degrees. One
important point that needs pointing out is the various classification of
charitable donations/source of finance in Islamic history. This contrast is
necessary if we deemed waqf as being important. The classifications were as
follows:-
1) Khums (i.e. part of the booties of battles),
2) Fai ,
3) Zakaat,
4) Sadaqah,
5) Ushr,
6) Kharaj,
7) Jiisya,
8) Ransom money,
9) Khums of Treasure Trove,
10) Contribution of the Muslims in time of need
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Part 3: The Essence of Waqf
(a1) – Definition
According to What is Waqf? (2007), the word waqf literally means ‘to stop,
contain, or to preserve. In Ahmed (2005), in the context of the Shari'ah, it
implies a form of gift in which ‘the corpus is detained and the usufruct is set
free’. The meaning of 'detention' of the corpus in this context, is its
prevention from being inherited, sold, gifted, mortgaged, rented, lent, and
others. As to the meaning of usufruct, it means its devotion to the purpose
mentioned by the waqif (donor) without, any pecuniary return.
The motive of waqf is always religious. Seven words but to a true Muslim,
this represents his or her entire existence. It does entail achievement of
sorts and the author suggest that the “thought process” of a waqif should
be a subject of further research since charity can take various guises and if
we were to name the likes of affluent Muslims in Malaysia such as Syed
Mukhtar Al-Bukhary, Tan Sri Halim Saad, the notable Razak family all have
foundations to their
8
name and yet all have not alienated any of their holdings into a waqf. The
author doubts that this is out of ignorance, out of irreligiousness (the author
does not wish to discuss person/s religiosity). This is perplexing and gives
rise to concerns over the “perception” of wealthy Muslims on the idea
of the “waqf”.
The above hadith is believed to set the precedent for Muslims, to popularise
the waqf system for any imaginable shari’ah compliant purpose.
9
Others points towards the Kaabah as the first, others point to the mosque in
Quba’ and we take these multiple claims as signs of where the early
Muslims placed their priorities.
b) Constitution of Waqf
• The waqif
The settler waqif must be of full age, sound mind and unrestrained in the
use of his own property. He must therefore, able to understand the effect of
his action, a free man and not a slave.
• Predetermined property
According to Osman (2002), Shafie scholars are in consensus regarding the
intended waqf property must be predetermined first before waqf status is
being established. If ambiguities exist or the property cannot be determined
due to certain circumstances, the waqf is considered invalid.
10
In Public Trust (Ahmed), there is no doubt that prior to donation the waqf
property is owned by the waqif, because a person cannot make waqf of a
property that he does not own.
According to Ahmed (2005), all schools, with the exception of the Maliki
school, concur that a waqf is valid only when the waqif intends the waqf to
be perpetual and continuous, and therefore it is considered a lasting
charity. Hence if the waqif limits its period of operation, such as when he
makes waqf for certain specified limit time frame or until an unspecified
time when he would revoke it at his own pleasure, it will not be considered a
waqf in its true sense.
11
Many scholars agree that such condition implied on the intended waqf,
nullifies the waqf, though it will be considered as valid habs (detention) if
the owner of the property intends habs. But if the owner intends it to be a
waqf, it will be nullify the conditions to be a valid waqf and a valid habs as
well. By a valid habs, it is meant that the usufruct donated by the owner for
a particular object will be so applied during the period mentioned and
return to him after the expiry of that period.
• The object of waqf must be a work pleasing to Allah, although this is not
always apparent on the surface. It must be charitable in general sense.
Subject of waqf refers to what may be dedicated as waqf. Below are the
subject of waqf as per outlined by Muhd Zain (1982) in his book, Islamic
Law with special reference to the Institution of Waqf:
• Immovable property
All jurists of all schools are in entire agreement as to the validity of waqf as
immovable as illustrated in the early history of waqf institution, where waqf
of land is widely made by the companions of Prophet Muhammad s.a.w.
It’s also lawful to dedicate every movable that may be an accessory to it, as if
dedicating cattle and slaves.
12
• Movable property
There are differences of opinions for movable property since the prevailing
view indicates that movable cannot be made waqf because they do not
possess the quality of permanency. Yet, some exceptions had been made
upon movable property beneficial uses such as movables attached to
immovable property. Even it is valid to make waqf of such movables with
respect which had been ‘urf in the society, such as copies of Holy Qur’an,
axe, books or water from a public fountain.
The above Fiqh cuts across the following the following time span:-
i) 610 AC – 661 AC (Prophet s.a.w – Ali Ibn Talib leadership)
13
The above also entails different locations, time, economic development, the
Umayyah, the Abassids, the melting pot of expansionary Islam and other
contexts that affected the Fiqh of the Imams.
The next often cited period of intense waqf activity was during the rule of the
Ottoman Empire (Turks of “Hanafi” persuasion). Why this is is just that the
state took deep interest in the institution of the waqf as compared to earlier.
Before going further the key points already pointed out and new points to be
developed needs stipulation:-
Below is from the author earlier work questioning whether the Ummah, the
Maqasid al Shariah is being championed by Islamic Banking and Finance.
The Pew Forum on Religion & Public Life (2009) estimated that there 1.57
billion Muslims in the world making up 23% of the world population. More
than 60% of the global Muslim population is in Asia and about 20% is in
the Middle East and North Africa. Two-thirds of all Muslims worldwide live
in 10 countries, six are in Asia (Indonesia, Pakistan, India, Bangladesh,
Iran and Turkey), three are in North Africa (Egypt, Algeria and Morocco) and
one is in Sub-Saharan Africa (Nigeria).
Economically these countries rank low in terms of per capita income faced
with numerous handicaps such as ruled by corrupt and dictatorial
governments, having little or dwindling resources and subjected to
international sanctions in the case of Iran. The author concluded that
arriving to the Maqasid via Islamic Banking and Finance is questionable
and much repair is needed due to our preoccupation with such capital
market instrument of “sukuk” bent on the profit motive and competing
with conventional offerings.
15
Part 4:- Mobilizing resources via the Institution of Waqf
Much has taken place since the revival and interests in Islamic Economics.
The waqf itself has attracted much attention. Below are some examples
from various Muslim countries:-
i) Malaysia
16
ii) Singapore
A small island state renders the management of Islamic affairs under the
sole authority of Majlis Ugama Islam Singapura (MUIS). It has taken bold
steps to safeguard Muslim interests in a non-Muslim dominated nation.
Much of its activities are commercially oriented vis a vis the real estate
property under its administration (price of real estate is premium in
Singapore. The two major financial tools utilized are via the cash waqf and
the “sukuk” based on the “Musyarakah” concept.
iii) Kuwait
17
The Centre is being administered by Waqf Council, which usually consists of
several prominent people in the society. The Centre is being headed by
President of the Waqf Council, who also acts as the director.
18
iv) The United States
The moment the foundation was established; all waqf properties owned by
Muslim Students’ Society in the United States, such as mosques and
buildings, the ownerships were transferred or waqf to the foundation. The
foundation was further developed through cash waqf, which are then used
to acquire buildings for education purposes and mosque. The foundation
also provides various services such as financial assistance, books or
scholarly journals publication, and Islamic audiovisual related equipments.
The foundation plays an active role in ensuring waqf property development
through direct investments such as agriculture sector, poultry rearing, food
& beverages or investment through Trust Fund.
19
Dr. Monzer Kahf has opined that the major challenge to Muslim in
protecting waqf properties in the United States and also North America
comes via the ability of the waqf managers (mutawalli) to dispose of the waqf
fraudulently as well as the ability of non profit organization (waqf) to be sued
by other external parties (Kahf, n.d.).
v) Pakistan
20
4b) Trend detected in countries cited
21
4c) On-going challenges to Waqf
Legal issues pertaining to land matters is a global issue affecting waqf, non
existence of Waqf laws in Non-Muslim countries may impact its legality,
majority of endowments is economically non-productive since it carries
religious usage. Transparency of managers, knowhow and skill to manage
for value (i.e. accruing economic benefits) remains limited if the managers
are employees of the State Religious Departments more predisposed to
either office management, family law or issues over inheritance.
22
4C-1) The role of Government and Regulators
A suggestion of the author, we talk about Malaysia being a “halal” hub. Why
not utilize the “waqf” as a mobilizing instrument in our quest for this status?
Need we depend on banks, on venture capitalist to support such initiative?
23
Is the cap on the feathers for the modern waqf is to be the ZamZam Tower.
Quote “Sukuk Al-Intifa’a – the right that entitles all Muslim from around the
world regardless of their nationalities to obtain a residential suite in
ZamZam Tower”
Unquote – (if you are poor, you have don’t have the right). The author is
sure that this deprivation if told to Umar Al-Khattab it will bring tears to his
eyes)
Islamic history is undeniable. The golden age of Islam is the golden age of
Islamic Economics. Our present preoccupations due to the above represent
a “brake” to the waqf playing its intended role in Islamic Economics. Without
shifting mindsets (at the top and/or grass root pressure), we do not do
justice to the likes Mohammad Baqir al-Sadr, to Chapra, to Siddiqi, to
Mannan and a list that goes longer by day. The author also doubts that the
Prophet s.a.w will be pleased with the present as compared to his pleasure
of accepting the answer from Muaz Ibn Jabal.
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