WAQF PROPERTY MANAGEMENT AND ADMINISTRATION: THE ISLAMIC LAW AND IMPLEMENTATION PERSPECTIVE IN MALAYSIA Dr Mohd Afendi Bin

Mat Rani Accounting Research Institute and Centre of Islamic Thought, Universiti Teknologi MARA Shah Alam Prof Madya Dr Asmah Abdul Aziz Accounting Research Institute and Faculty of Accountancy, Universiti Teknologi MARA Shah Alam

Introduction In Malaysia, the Federal Constitution clearly stated that King is cum as Islamic Religion Chief for state that have King or Sultan. (Federal Constitution, Article 3 (2) (3) (5). Whereas for state which had no King or Sultan such as Sabah, Sarawak, Malacca and Penang, the Chief of State Religion is the Yang Di-Pertuan of the State. (Wu Min Aun, 1991, p.90) Basically, legal Islamic administration in Malaysia was upheld by Federal Constitution. So law that enacted at state level should be in accordance and not contrary to the Federal Constitution. (Federal Constitution, Article 75) However, matter relating to Administrative Affairs of Islamic Religion or Islamic law is placed under the jurisdiction of State Government. As such, law which is related to Islamic law is governed under the jurisdiction of state and not governed at the Federation level, except for the Federal Territory. Power to legislate and administer distinctly visible law in Schedule 9, List 2 of State List, namely legislation list or scope of the power of the state. In this case, state government having jurisdiction to establish Islamic council and religious department for respective state. Implication from this, administration of affairs related to Islamic religion is governed separately in every state and is not standardised whether in legislation, management and implementation among states in Malaysia. State list mention among others, Islam and definition of wakf and rule on Charitable Trust and Religious Charity, Trustee appointment and corporation for persons related religious grant and Charity, Trust Foundation, Charity and Charity Foundation. Yet matter on wakf usually will be
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brought to Civil Court, especially if the said land is not registered on the name of Religious Council or which involved non-Muslim person. (Ahmad Ibrahim, 1999, p.29) Wakf Wealth Management from Islamic law Perspective Islamic law has prescribed that property that has been donated need to be managed and administered by parties which are responsible answer to supervise and look after wakf property benefit so that it can be channeled to parties which really have the right to accept it. (Badran, Badran Abu al-'Aynayn, 1986, p.687). In Islam someone that is appointed to manage wakf property or trustee is known as al-Mutawalli. (Al-Baghdadi, Abu Muhammad Ghanim b. Muhammad, 1999, p.687) Al-Mutawalli consist of people or body which have the capacity, trust and ability to implement what is intended by pewakaf. ('Ala' al-Din Muhammad b. Ali alHaskafi (t.t), p.584) Major tasks are to look after, preserve and develop land that has been donated, collect wakf income and further distribute to the beneficiary that deserve and preserve the land from any loss and damage, like those intended by pewakaf. (Al Nawawi, Abu Zakariyya Yahya, 2000, p.411) Theologians unite to state that pewakaf have wide jurisdiction to appoint anyone to administer and manage the wakf property. Pewakaf could appoint himself as trustee or hand over this trust to people who received wakf, or other than both of them(Mohd Zain Hj Othman, 1998, p.190). If pewakaf put condition on those appointed, so the trustee should implement the condition and observe all decision that is made by pewakaf. On the other hand, if pewakaf does not specify to any party to deal the wakf property, so the judge will determine. This is Maliki and Syafii sects Islamic scholars view. Yet most fatwa mention that wakf for general purpose or specific purpose, the authority to manage the property is in the hand of the judge. In Hanbalis sect ' view, if pewakaf has determined specifically the parties which will get the wakf and everyone has been assigned the portion, so each wakf recipient is the trustee to the land that has been donated to him. Contrasts with general wakf land that does not determined the wakf recipient, such as wakf for mosque, the poor, so the Judge or assistant as inspector or trustee on the property. (Al Nawawi, Abu Zakariyya Yahya, 2000, p.410)

There is also fuqaha Hanbali view that property control authority is subject on those who accept the wakf, even if is not conditioned. (Ibn Qudamah, 1992, p.32.) According to Hanafi sect, pewakaf is the party that is answerable for any matter on property that was donated, whether any condition exist or otherwise. Then the accountability is transfered to people that was bequeathed by pewakaf if provided. Otherwise the judge is going to take over that task. (Al-Sarakhsi, Sham al-Din, 1978, p.44). Refering to wakf concept, the asset ownership of donated asset remained in pewakaf hand. While another view said that parties which accept wakf will become administrator and responsible fully on the property, because something that has been donated no longer belong to the pewakaf. So power to administer will depend on the receipient or the qadi.

Wakf Wealth Management in Malaysia

In Malaysia pertinent point relating to wakf property is one of the trust property aspect that listed under Schedule Nine, List II, under State List. Pertinent point to wakf were appropriated in respective state enactment. (Federal Constitution. 74(1)(2) All wakf land is governed and run by MAIN whether movable property or not. (Baharuddin Sayin, 1998, pp.94-98) Registered Wakf lands is under the authority of MAIN as the sole trustee of wakf property.

Although estate administration task of wakf is given to MAIN as Sole Trustee, however the administration is managed by a special committee that will not only manage on wakf property. (Mohd Daud Bin Bakar, 1999, p.7) Wakf allocation in state enactments is not all encompassing. It stressed more on administration aspects and simple procedures on wakf donation. The

substantive aspects were not stressed except for a number of states that allocated specific enactment on wakf such as the state of Selangor, Negeri Sembilan and Malacca( Siti Mashitoh Mahamood, 2006, p.3)

To improve more on the administration machinery of wakf, Federal Government have constituted Wakf Department, Zakat and Haji (JWZH) which was proclaimed by Perdana Menteri YAB Dato' Seri Hj Abdullah Ahmad Badawi on the 27th of March 2004. The objective
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of this establishement

is merely for monitoring purposes and coordination for Wakf

management, Zakat and Haji in this country. It is also to increase effectiveness and efficiency in delivery service. JWZH establishment is not mean to takeover the role and MAIN task and State Islamic Religious Department and other departments. (Berita Harian, April 24 2004).

Before JWZH was established, government through JAKIM, in the Prime Minister ' Department had appointed one Property Development Coordinating Committee of Wakf (Jawatankuasa Penyelaras Pembangunan Harta Wakaf) in National Level to aid MAIN to develop the wakf property. It involves officials from private agency and government who has expertise and experience in respective field. (Syed Othman al-Habshi 1999, p.9)

Most state enactment did not allocate specificallyhow to administer the wakf property. Usually the power of officials that run wakf property were limited because it is placed under Baitulmal, except several states such as Johore, Selangor, Malacca and Negeri Sembilan. Other states have not yet created specifically on wakf allocation. In Selangor, after with the existence of Wakf enactment, all wakf business is governed and managed by wakf management committee which was established by the religious council. In Negeri Sembilan such committee is known as Wakf Management Consultant panel. Wakf Management committee is not only to manage and administer wakf property, but also to administer Wakaf fund so that it fulfils the requirement of Islamic law (Siti Zalikhah Md Nor, 2008, pp.62-63).

Islamic Religious Council As Sole Trustee

Islamic religious councils was constituted through the administration enactment of Islamic law that as approved by the State Legislative Assembly in every state. Refering to MAIN enactment, MAIN is the Sole Trustee to all wakf property, whether General Wakf, Special Wakf, to all General Vow and type of trust which became Charitable Trust in order to help and for the Muslims interest and in according to Islamic law. This allocation was mentioned clearly, for example in Administration Enactment of Terengganu Islamic Religious Affairs, Section. 143:

Whatever the allocation oppositional in any instrument or declaration which was created, controlled or or related to the matter, the Council should become the only guard to all wakf, whether General wakf or Special Wakf, and all general vow and all trust from all types that were created for charitable trust to help , progress or for Islamic benefit of people according to Syara Law and that located in this state or if people which made the settlement of property or person other than that created trust, wakf or general vow and domiciled in this state, till all related property by him where ever the property is located

While Section 144(1) Enactment state: all property that, in that is fixed, subject to section 143 should, if lies within this state, are vested in the council

The Council appointment ' as a sole trustee to this wakf property is to ensure wakf property is well administered, efficient and can generate good result for the beneficiary or for welfare purposes; whether predestined or unspecified by wakf donor. This is important as to avoid from various problem which might arise through private trustee appointment made by the previous wakf donor . Private trustee attitude that does not trust as well as interference of the heir have resulted in loss of wakf property and further deviate from the original purpose wakf and contrary with the principles of law. (Siti Mashitoh Mahamod, 2005, hlm.3)

From the law aspect, MAIN deserve to make an agreement, buy, take, hold and own property whether movable property or not transferable to transferable, shifts and develop all property that belonged to MAIN and to follow any available rule in according to Islamic law. This rule is empowering MAIN to implement and develop wakf property.

Refering to the powers that were allocated to MAIN, overall it is entitled to carry out all development activity towards economic progress that is necessary and all benefits from that wakf property can be distributed. MAIN also could be involved in developing any activity, whether undertaken by other body, or people, or either under management or half management or by private by giving help to those spotted by MAIN that is eligible to carry out all the activity.
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To increase income, MAIN is entitled to carry out activity by collaborating with different body whether from government, corporation or private.

Legislation Obstacle and Constraint

Although the Council is appointed as the sole trustee on wakf property in Malaysia, however from the practical aspect, these assets is still subjected to act which was made by Parliament. (Suwaid Tapah, 1994, p.83) Constitutional Amendment Section 121 (1A), and provisions relating to wakf has been codified in Administrative Law State Islamic Religion, however extant a few different statute which related have to be referred with, especially National Land Code Act 1965 (Act 56) and a few other acts. Among them Local Government Act 1976 (Act 171), Trustee Act 1949 and Land Acquisition Act 1960 (Act 486). Dispute on wakf property still handled in Civil High Court and Court of Appeal, although Syariah Court has the power in hearing related cases that involved Muslims.

KTN did not set aside specifically handled wakf property as compared to allocation which was made for trust like those occured in Section 344 and 345. As such, all wakf land title grant does not get endorsement with title of wakf. (Mashitah Mahamood, 2006, p 112). The implication was land status of wakf is still vague and may be converted for other uses. Similarly, some wakf land is under lease (Leasehold)due to lack of land in this country. Apart from that, there were some other provisions which became constraint to Council such as Section.196(1), Section136(1) and others. Same problem also occur in Local Government Act 1976, where wakf properties are still taxed like the private land.

In Malaysia many wakf land got involved with land acquisition by the government for public interest and economic progress of the country. This phenomenon can allegedly occur almost in every state in Malaysia. Because of the civil land law (APT Section.3) that allows land acquisition based on public interest and economic development of the country, so MAIN as Sole
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Trustee of wakf real estate is forced to fulfill the government requirement. National land law that is under KTN 1965 and APT 1960 do not distinguish the classification of wakf land and land owned by individual. Hence, APT 1960 give widest space in construing public purpose and economic development of the country, it causes long term effect on wakf property development in Malaysia. Land acquisition may be made by anyone that is qualified to apply and can justify for economic development. Apart from that, the objective of land acquisition or for public interest is for the government to decide. While whatever decision that had been made by PBN shall not be questioned by any party whether the land owner or any court. (Mohd Afandi Mat Ranee, 2008, p.334).

Conclusion Wakf practice are included in the aspect of Ubudiyyah that is targeted for linking human with Allah and human with another human. Therefore, in order to achieve this goal certainly every aspect that is implemented should fulfil with all condition and principle that were delineated clearly in Islamic law. Apart from that, wakf is also given attention by fiqh scholars in parallel with other religious requirement in Islam. Wakf asset can act like a catalyst to strengthen the Muslim people especially in developing the economy and wealth of the nation especially if it is properly and systematically administered.

BIBLIOGRAFI

Ahmad Ibrahim (1999), Waqaf dan Perlaksanaan Undang-undang di Malaysia, dalam Konsep dan Perlaksanaan Wakaf di Malaysia, Malayan Law Journal Sdn Bhd Baharuddin Sayin (1998), Pentadbiran dan Pengurusan Harta Wakaf di Semenanjung Malaysia, Jurnal Fikrah, Vol.1, Januari 1998, Pusat Pendidikan Persediaan, Institut Teknologi MARA Al-Baghdadi, Abu Muhammad Ghanim b. Muhammad (1999), Majma al-Damanat fi Madhhab al-Imam al-Aazam Abi Hanifah al-Numan, ed.1, Vol.2, Dar al-Salam Badran, Badran Abu al-Aynayn (1986), Ahkam al-Wasaya wa al-Awqaf fi al-Syariah alIslamiyyah, Kaherah: Dar al-Jamiah Haskafi, Muhammad Ala al-Din (t.t.), Sharh al-Durr al-Mukhtar, vol.2, Kaherah: Matbaah Sabih wa Awladihi Ibn Qudamah (1992), Al-Kafi fi Fiqh al-Imam Ahmad b. Hanbal, vol.2, Beirut: Dar al-Fikr

Mohd Afandi Bin Mat Rani (2008), Pengambilan Tanah Wakaf Oleh Pihak berkuasa Negeri: Analisis Menurut Hukum Syarak dan Aplikasinya di Malaysia, Tesis Ph.D, Universiti Malaya Mohd Daud Bin Bakar (1999), Kedudukan Institusi Wakaf daripada Perspektif Undangundang, (Kertas Kerja Seminar Institusi Wakaf Menuju Era Baru, Anjuran Jabatan Pentadbiran Tanah, Fakulti Kejuruteraan dan Sains Geoinformasi, Universiti Teknologi Malaysia, Skudai Johor, pada 8 Julai 1999) Al-Nawawi, Abu Zakariyya Yahya (2000), Rawdah al-Talibin, vol.4, Beirut: Dar al-Kutub alIlmiyyah Al-Sarakhsi, Sham al-Din (1978), Kitab Al-Mabsut, 3rd edition, vol.12, Beirut: Dar al-Marifah Wu Min Aun (1991), Pengenalan Kepada Sistem Perundangan Malaysia, 3rd edition. Long Man Sdn Bhd

Siti Mashitoh Mahamood (2006), Undang-undang dan Pentadbiran Harta Amanah Orang Islam di Malaysia, dalam Siti Mashitoh Mahamood et. al. (ed), Harta Amanah Orang Islam di Malaysia, 1st edition, Kuala Lumpur: Universiti Malaya Suwaid Tapah, (1994), Undang-Undang Pentadbiran Harta Wakaf di Malaysia, Jurnal Syariah, vol.2, no.1, Januari 1994 Syed Othman al-Habshi (1986), Konsep Waqaf dan Pelaksanaannya di Malaysia, Kertas Kerja Seminar Kebangsaan Pengurusan dan Pentadbiran Harta-harta Waqaf, Anjuran Majlis Agama Islam Perak dengan Kerjasama Majlis Agama Perak dan Bahagian Hal Ehwal Islam, Jabatan Perdana Menteri, Pada 24-25 November 1986 Siti Zalikhah Md. Nor, (2008), Pengurusan Wakaf Negeri-negeri di Malaysia, Prosiding Konvensyen Kebangsaan Pengurusan Harta Pusaka, Wasiat dan Wakaf, Anjuran Universiti Kebangsaan Malaysia dan MAIDAM, Pada 18-19 Oktober 2008, Dewan Konvensyen Taman Tamadun Islam Terengganu. List of Statute Federal Constitution Kaedah-kaedah Wakaf Johor 1983 Enakmen Pentadbiran Agama Islam Kedah (no.9/ 1962) Enakmen Pentadbiran Hukum Syarak Melaka (no.5/ 1991) Enakmen Hal Ehwal Agama Islam Terengganu (no.2/ 2001) Lihat Enakmen Pentadbiran Agama Islam Johor (bil.4/1996) Enakmen Pentadbiran Ugama Islam dan Adat Resam Melayu Pahang (no..3/1991) Enakmen Pentadbiran Hukum Syarak Melaka (no.5/199)