by Siti Mashitoh Mahmood
Observations regarding waqf in Malaysia:-
1. Characteristic of many awqaf-Form of ibadah, consisting of immovable assets and dedicated for mosques and cemeteries. Also many Islamic religious schools; reasons
a. Belief in the community that any benevolent act associated with worship is most desirable;
b. Designed to fulfil fard al-ayn;
c. Community is limited in knowledge on concept of waqf ie that waqf must only be in immoveable property;
d. No serious effort on part of SIRC to inform communit about valid practice of waqf involving moveable assets until recently when the SIRC of Selangor, Johor, Penang, FTKL, Malacca and Pahang have introduced saham wakaf.
2. No listing or complete records of waqf. A statutory vesting needs to be effected and notified to the land office which will then be endorsed by the land office on the title – see Circular of Director General of Federal Lands and Mines (No 8/99)
3. Some waqf given over land has not observed the rule that the land must be wholly owned in perpetuity by the waqif. Many land is held under leasehold title ie 99 years, so any waqf land given in respect of these leasehold titles do not fulfil the permanency requirement.
4. Many waqf properties came under the Control of Rent Act 1966 , and due to the limited rental that can be charged, many of these properties became uneconomical and fell into disrepair. The CRA was repealed in September 1997.
5. Local Government Act 1976 - waqf property is subject to municipal rates same as other property.
6. Waqf property is also not exempt from state acquisition under the Land Acquisition Act 1960, subject to appropriate compensation.
7. Awqaf are vested in the respective SIRCs. Some of the SIRCs proposals for istibdal have been objected to by the local Muslim community, leading to inability of the SIRC to develop the waqf property optimally.
8. SIRCs are empowered to appoint committees to assist them in the performance of their duties-
State-Enabling subsidiary legislation-Delegated committee-Subsidiary Companies of SIRC
Malacca-Zakat and Fitrah, Wakaf and Baitulmal Affairs Rules of the State of Malacca 1982-LUKMAL- to determine investment policies and overall management of awqaf assets in the state-MAIM Properties Sdn Bhd
Johore-Wakaf Rules 1983 -Wakaf Committee of Johore – empowered to invest and exchange (istibdal) awqaf assets with the permission of the SIRC johore. Also empowered to establish collective shares (wakaf musytarak) by unifying other forms of awqaf shares
Perak-Control of Wakaf Rules 1959-State Wakaf Control committee- to advise the SIRC on all matters relating to awqaf and their administration
Penang-(under enactment)-Committee of Wakaf – investment of waqf-As-Sahabah Holding
FTKL- (under enactment)-Development and Investment Committee (of the Jabatan Agama Islam, ie secretariat to the MAIWP) – interalia the development and investment of awqaf assets-Pusat Rawatan Islam Sdn Bhd and Baitulmal Zenith Battery Sdn Bhd
Sarawak - (under enactment)-Baitul mal and Wakaf Board- to administer assets of Baitul mal and manage its collections contributions to the fund
Selangor- (under wakaf enactment)- Wakaf Management Committee – administer and manage all matters relating to waqf in the state of Selangor Bakti Suci Properties Sdn Bhd
Negeri Sembilan-( under enactment)-Committee on Investment-Edi Fajar Development Sdn Bhd
9. Other bodies that assist the SIRCs are the Wakaf Development Corporation (Malaysia) Sdn Bhd, the Research Division of JAKIM and the Department of Wakaf, Zakat and Haji in the PM’s Dept.
10. Some SIRCs have established companies to develop existing awqaf assets in Malaysia.
11. Problems faced by SIRC in developing awqaf assets-
a. Financial constraint due to low income from awqaf assets – inability to incur debt or obtain credit
b. Legal constraints due to the various laws ; also illegal settlement of awqaf properties by squatters; claims by heirs of founder who challenge the waqf
c. Administrative constraints due to lack of manpower and capability in administering the waqf assets and optimizing their economic potential, project management or financial background
d. Non strategic location and small sizes, and scattered
e. Opposition to commercialization projects for waqf property by local community
f. Lack of understanding and exposure by the local community of the waqf as an Islamic developmental institution – and indifference to the idea that the waqf is fard kifayah and should be encouraged.
12. In FTKL-
a. Process for the receiving and transferring of awqaf asset in FT under the MAIWP;- (SEE PG 110) – handled by the Baitul section (GRSU? What is this?)) one of the steps involve a survey of the property by the GRSU officer to investigate the status and availability of the property for constituting a waqf. Once transferred to the MAIWP, the responsibility for development and administration is given to the Development and Investment Section under the Jabatan Agama Islam WP(JAWI) (the secretariat of the MAIWP). But, if awqaf is for mosque or surau, they are handled by the Kariah Unit of the Dakwah section of JAWI, and if it is religious school it will be administered by the Education and Research Section.
b. Motives of founders ranged from spiritual or religious reasons, to more mundane reasons such as not wishing to pay the municipal assessment rates, or the lands are situated in non-strategic locations where no development can be effected.
c. Istibdal – there is a general fatwa by mufti of FTKL regarding the validity of istibdal - each istibdal is to be approved by the mufti on a case by case basis
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