Senin, 03 Januari 2011

Optimization of Philanthropic Waqf: The Need for Maqasid-based Legislative Strategies



Optimization of Philanthropic Waqf: The Need for Maqasid-based Legislative Strategies
Dr.Mek Wok Mahmud
(Head Dept. Of Fiqh  and Usul al-Fiqh)
Dr. Sayed Sikandar Shah ( Haneef)
( Assoc.Prof. Dept Fiqh and Usul al-Fiqh)

Abstract
Waqaf institution was most central in financing socio-religious and public welfare systems during the early days of Islam. More importantly, the contribution of philanthropic waqf effectively sponsored   and maintained the social welfare of the Muslim Ummah. Gradually, however, the creation of this type of waqf degenerated and today, by and large, the waqf consists of religious kind.  Accordingly Muslim economy lost one of the most essential tools in the area of public financing. To remedy this situation, we believe that we not only need to rethink of the regulatory cum institutional structures but also to seriously earmark jurisprudential strategies for the revival of  waq khairi. Accordingly, in this paper we primarily focus on this issue with the purpose of identifying some practical legislative measures relevant to the Malaysian context.
Introduction
During the glorious days of Islam, waqf (Islamic endowment) played considerable part in socio-educational, cultural and life-saving aspects of the Muslims. Early Muslims gifted with divine bounties were sensitive towards the plight of their downtrodden brothers and sisters   in Islam. They dedicated numerous properties to uplift the lots of the unfortunate among them aside from parting with their wealth for other religious institutions, such as zakah and cemeteries. However, today waqf, by and large, is understood as a dedication made for purely religious causes. To us this narrow understanding of philanthropic endowment ( waqf khairi) is  symptomatic of the  larger ritualization of Islam and its institutions as  whole.  To remedy the situation, we propose that there is a need to move beyond the literal understanding of the waqf. To do this, first we offer a brief overview of the concept, followed by a sketch of its application in the early days and lastly by looking at the issue from maqasid perspective with the idea of proposing some legislative strategies.
Conceptual framework
Literally waqf means to stop, to hold, to  restrain , to detain , or to prevent,  such as saying ,`` preventing from disposition.``[1] In Islamic law , waqf  refers to  irrevocable dedication of a portion of ones wealth  for the purpose of expending its usufructs to  legitimate causes or charitable and  righteous ends with the overriding objective of getting closer to Allah. [2]
Waqf derive its validity from the general directives of the Qur`an exhorting Muslims to be benevolent and charitable towards the social causes.  For instance, the Qur`an says:`` What you can spare of your wealth as should benefit the parents, the relatives, the orphans, the needy, the wayfarers for Allah is not unaware of the good deeds that you do”.[3]  Again it states: By no means shall you attain righteousness unless you give of that which you love; and whatever you give, of a truth God knows it well.``[4]  Or the verse which states:`` O you  who believe!  Give of the good things which you have lawfully earned …``[5]
The Prophet, as the proclaimer of divine legislation, re-emphasised benevolence dedication of one`s wealth in anticipation of earning its reward in perpetuity by saying: `When a person dies, all his good deeds ceases except three: the establishment of welfare institutions, the writing of a book and the pious children who will pray for them.``[6] Leading by example, he  started building social infrastructure on the basis of waqf. For instance, he erected the first mosque ( Quba’)  in Madinah,  on a parcel of land made  waqf by two orphans.  These two pioneers in making Islamic waqf, in spite of the Prophet`s insistence on paying them for their land, refused it and stated that that they would claim its reward from Allah in the next world.[7] This mosque now stands now on the same lot with a new and enlarged structure.
Impelled by the legislative provisions of the Qur`an and Prophetic traditions as stated above, the companions of the Prophet uphold his tradition which has been followed till our time by devout Muslims. For instance, “Ibn ‘Umar reported: ‘Umar acquired land in Khaibar. He came to the Prophet, seeking advice about it . He said: ``O Allah’s Messenger, I have acquired land in Khaibar which is the best of all the properties I ever got`` what is your opinion about putting it to use in the name of Allah. Thereupon the Prophet said: If you like, you may keep the corpus intact and give its produce as sadaqah(charity). So ‘Umar gave it as a charity,``  declaring that the property must not be sold or inherited or given away as a gift. And ‘Umar devoted it to the poor, to the nearest of kin, to the emancipation of slaves, to wayfarers/guests, and in the way of Allah.``[8]
Abu Talhah , another companion of the Prophet,  also after the revelation of Al-i-`Imran:92, went to the Prophet and said:`` O Allah`s Messenger in line with Allah`s command that I will not attain piety until I (you) spend of what you love, and the most beloved property to me is Bayruha- a garden where the Prophet used to go and sit in its shade and drink from its water.  I give it to Allah and His Messenger, hoping for Allah`s reward in the Hereafter. So, O Allah`s Messenger use it as Allah orders you to use it. `` Allah`s Messenger said: ``Bravo! O Abu Talhah, it is a fruitful property. We have accepted it from you and now we return it to you. Distribute it amongst your relatives.`` [9] Another companion of the Prophet in the name of  Mukhairiq made his will that his seven orchards in Madinah be given after his death to Muhammad. When he died, the Prophet took hold of the orchards and made them a charitable waqf for the benefit of the poor and needy.[10] 
According to Jabir, some who dedicated their fruit orchards as endowment made it a condition that the fruits and revenues of their waqf be first given to their own children and descendants and only the surplus, if any, should be given to the poor.[11]
In the light of the above, Muslim jurists detailed the minutest juridical rules of waqf including the following.
i-                    Legal value: majority of the jurists regard waqf a recommended benevolent act(tabarru` mundub) as its raison de`tre lies on contributing to righteous philanthropic causes(jihat al-birr/wujuh al-khayr)  which is recommended by textual sources, namely the Qur`an and Sunnah.The Hanafiyyah, however disagreed by saying that waqf in terms of legal value is merely a permissible venture (mubah) mainly because it can also be made by non-Muslims.[12] Majority view, we believe, is more authoritative as the Prophet encouraged its institution by companions as well as approved that which were made by them(becomes his Sunnah).

ii-                  Types: most of the authorities divide waqf into philanthropic (khairi) and family(ahli or dhurri) kinds of endowment. The former refers to ,`` a dedication in perpetuity of the capital and income of an asset, recognized by Islamic law,  for philanthropic causes even if it subsequently is dedicated to specific people.`` For instance, dedicating  ones a parcel of land initially for  a certain school or hospital and later on  reverting it to one`s own progeny is an example of this kind.[13] The family waqf, on the other hand, signifies dedicating one`s asset as approve by Shari`ah in favour of ones own and ones  children and  subsequently dedicating it to philanthropic causes.``[14] Nevertheless, contemporary legal scholars like Zain have taken more pragmatic view by classifying waqf into four types: first, is family waqf whose sole beneficiaries would be ones near relative and family. Second, is the welfare (philanthropic) waqf whose beneficiaries are members of public or institutions, such as destitute, orphans, hospitals, schools, mosques, cemeteries etc which is regarded as the most pious act by jurists and most popular form made by people in Malaysia. Third is waqf mushtarak (combinded welfare and family waqf)  signifying dedication of ones property partly for the welfare of public and partly for the benefit of ones family. [15] We believe this is more accepted view as it clearly demarcates the line of distinction between the beneficiaries and thwart the possibility of lawsuits arising from competing claims over waqf properties upon the founder`s death.

iii-                Legal stipulations:  subject to stipulations as specified by various schools, the agreed conditions of validity for waqf are: first, the maker of waqf should be an adult person of sound mind and unrestrained  in his power to dispose his property. Second, the property in question (mawquf) must be declared as waqf with clear intention by the creator (waqif). Third, the beneficiary (mawquf `alayhi) does not have to be a Muslim. Waqf for welfare of non-Muslim is valid provided he/she is not hostile. Safiyah, the wife of the Prophet, made waqf  in favor of her Jewish brother.[16] Fourth, the property of waqf has to be approved by Shari`ah. Fifth, the objective for which waqf is created must not be against Islam. Finally, the founder must not dedicate more than one third of his property as waqf except with the explicit consent of his legal heirs.[17]

iv-                Subject of the waqf(mawquf bihi): Jurists are unanimous on dedication of immovable properties as waqf. The reason is twofold: first, that all the incidents of waqf approved by the Prophet pertained to such assets; second, permanent utility of such as assets as the subject of waqf . Nevertheless, they were divided as to the dedication of movable properties as waqf. Majority approved it and Hanafiyyah predominantly do not. The reason is that to Hanafiyyah, movable properties could not be utilized in perpetuity which is the basic characteristic feature of waqf.[18] However, from a legal proposition put forth  by Ibn `Abidin one may gauge the real reason. He says:`` Dedicating of darahim(silver coins) as waqf was customary among the Romans and the dedication of hatchet and ads  were common among ancient people. But they are no more customary in our time, hence no more valid in our time.``[19] This dicta is important which unveils the underlying reason for divergent position of the Hanafiyyah on the issue. If that be the case, we believe that this would lead us to the conclusion, that the law based on customary considerations is changeable on account of changes in time and space. Accordingly, cash waqf in our time has emerged as the most viable means by which Muslim can make waqf on broader base particularly via modern mechanisms such as Takaful Waqf  Plan as practiced in Malaysia.[20]

v-                  Exchangeability (istibdal al-waqf): There is no disagreement that all waqf if cease to serve their objectives could be exchanged with other similar properties and dedicated for the same purposes. However, jurists disagreed on abandoned mosque; majority disallows it but Hanabilah approved its sale or its land and purchasing another one instead.  The reason for this divergent position of the Hanabilah is one of purposive interpretation of the law. To them once the mosque does not serve its stated objectives, keeping it in perpetuity would be futile.[21]

vi-                                        Salient features: They are two:  First, is the   perpetuity of its dedication. The implication is that once a property, often a real estate, is dedicated as waqf it remains waqf for ever. Subject to divergence of views among the jurists[22], such a waqf property requires lengthy process to be exchanged against another proper­ty of equivalent value with the approval of the local authority. It follows that such an exchanged asset must immediate­ly become  waqf for the same purpose and benefi­ciaries of the former one. Second, is the  inviolability of the founder`s stipulation.Accordingly, as a matter of principle the revenues of waqf should exclusively be used for the objective stipulated by its founder thus  the managing authority  has no any jurisdiction to sway from these objectives so long as they are  compatible with Shari`ah. However, this will be waived if such purposes  become infeasible, in which case the revenue of this waqf should be spent on closest purpose available and if not it should be spent in favour of  the poor  and needy.[23]
Financing significance in retrospect
      Against this background, the endowment which according to Imam Shafi`i was an unprecedented system of socio-economic support introduced by the Prophet[24], has played pivotal role in financing religious , educational, health care etc of the Muslim states in the annals of the Islamic civilization.  For instance, information extracted from the registers of awqaf in Istanbul, Jerusalem, Cairo and other cities indicates that lands of awqaf cover considerable proportion of total cultivated area. For instance, in the years 1812 and 1813 a survey of land in Egypt showed that waqf represents 600,000 feddan (=0.95 Acre) out of a total of 2.5 million feddan.[25]
In  Algeria the number of deeds of awqaf of the grand mosque in the capital Algiers was 543 in the year 1841. In Turkey about one third of land was awqaf , and finally in Palestine the number of waqf deeds recorded up to middle of the sixteen century is 233 containing 890 properties in comparison with 92 deeds of private ownership containing 108 properties.[26]
 From the financing perspective, religious establishment was funded from the revenues of the waqf properties. This usually includes salaries of imam [prayer leader and speaker of Friday religious ceremony], teacher(s) of Islamic studies, preacher(s). With the help of this independent source of financing religious leaders and teachers have always been able to take social and political positions independent of that of the ruling class. For example, upon the occupation of Algeria by French troops in 1831, the colonial authority took control of the awqaf property in order to suppress religious leaders who fought against occupation [27]
Aside from religious education, education in general was the second largest user of waqf revenues. Since the beginning of Islam, in the early seventh century, education has been financed by waqf and voluntary contributions. Even government financing of education used to take the form of constructing a school and assigning certain property  as waqf of the school. Awqaf of the Ayubites (1171-1249) and the Mamalik (1249-1517) in Palestine and Egypt are good examples. According to historical sources, Jerusalem had 64 schools at the beginning of the twentieth century all of them are waqf and supported by awqaf properties in     Pales­tine, Turkey and Syria. Of these schools 40 were made awqaf by Ayubites and Mamalik rulers  and governors . The University of al Azhar is another example. It was  founded in Cairo in 972 and was financed by its waqf revenues until the government of Muhammad  Ali in Egypt took control over the awqaf in 1812.[28]
Waqf financing of education usually covers libraries, books, salaries of teachers and other staff and stipends to students. Financing was not restricted to religious studies especially at the stage of the rise of Islam. In addition to freedom of education this approach of financing helped creating a learned class not derived from the rich and ruling classes. At times, majority of Muslim scholars used to be coming from poor  of the society.[29]
The third big beneficiary of waqf was the category of the poor, needy, orphans, persons in prisons, etc. Other users of waqf revenues included health services which covered construction of hospitals and spending on physicians, apprentices and patients. One of the examples of the health  waqf is the Shishli Children Hospital in Istanbul which was founded in 1898.[30]
Waqf was also a source of finance to help people go to Makkah for pilgrimage and for helping girls to get married. Moreover even animals were beneficiaries of Islamic endowment as was the case in proving for cats and unwanted riding animals in Damascus. [31]
Nevertheless, with the advent of colonization of Muslim states, the financing significance of waqf was curtailed.[32] With the state control of waqf properties and introduction of land reform, people started to dedicate their properties solely for religious purposes such as mosques and cemeteries.[33] To revive the lost practice of waqf , among others,  we need  to reinstate the role of waqaf khayri which in broad terms not only covers making waqf for religious ends but other public welfare aspects such as education, health care, charity establishments, research projects etc. To us to do this we need to take a maqasid – oriented approach to the concept of waqf. 

The Purposes of the  Shari`ah (maqasid al-shari`ah)
Every law is oriented towards certain purposes.  The Shari`ah, being a divinely inspired code for human conduct, also has its own aims and objectives. Its primary goal is to free man from the grips of his own whims and fancies so that he may become a true servant of God. As we read in the Qur`an:``Then we put thee in the right way of religion : so follow thou that way and follow not the desires of those who know not.``[34]
To enable man to serve Him, God has designed His laws  to secure   man's interest and  safeguard his  well-being (maslahah)  both in this world and the  hereafter[35]-a thesis  which was developed by great thinkers like  Imam al-Juwayni ,Imam al-Ghazali ,al-`izz ibn `Abd al-Salam , al-Shatibi,Tahir Ibn `Ashur , and some  contemporaries like al-Fasi and al-Raysuni [36], to name a few,The discourse on maqasid marks a significant departure from traditional literal approach to ijtihad.This obtains  through  a purposive interpretation of the Shari`ah rules, by way of  istiqra(inductive reasoning) in Islamic jurisprudence.
 Maqasid al-Shari`ah defined
Maqasid al-Shariah is acomposit of two words : maqasid and al-Shari`ah.Maqasid is the plural of maqsad.Literally ,it means ,intent,objective ,purpose, aim, and end-goal.Technically , it signifies the stated  purposes of the Shari`ah for the realization of Allah`s servants` interest(masalih al-`ibad) .[37] Shari`ah[38] signifies the sum total of laws and principles that are ordained by Allah and promulgated through his Prophet to mankind.
What Constitutes Human Interest(maslahah) ?
According to al-Ghazali ,human maslahah has  two-faces :
  1. Dini (promotion and preservation of religious values) or the human interest in   the hereafter and,
  2. Dunyawi or  human interest  pertaining to this world.[39] These  worldly purposes in turn include, the preservation of life, posterity /progeny(al-nasl aw al-nasab) or  family values[40], intellect, and wealth.
The two types described above ultimately yield five major purposes of the Shari`ah namely religion , life,progeny, intellect, and wealth. .They is called the five[41] basic principles (kulliyyat al-Khams.) [42]
The Classification
The human interest in order of priority has been classified into three broad categories. The are:
1.Necessities(daruriyyat) ,consisting  of religion , life,progeny, intellect, and wealth.They are essential because  upon them the life of man depends  and if threatened ,corruption ,disorder and injustice will result in individual and collective life.As al-Shatibi maintains:
``Daruriyyat  are vital because they are indispensable in sustaining the masalih(sing.maslahah) of din and dunya(the world), in the sense that if they are disrupted  the stability of the world is disrupted .Their disruption  results in the termination of life in the world  , and in the hereafter it results in losing salvation and blessings.``[43]
2. Needs (hajiyyat ) consisting of  facilities that human need them in order to provide them with ease and relief in situation of hardship and difficulties in life though their non-existence do not disrupt life and give rise to widespread chaos but result in hardship and stress.[44]
3. Embellishments ( tahsiniyyat)[45]   consisting of all things that enhance human mores and manners .Their disruption though   neither disruptive to life nor entail hardship but  a people   devoid of them will be lowered in the estimation of right thinking and right natured people .Tahsiniyat in this sense denotes the idea of  good habits and Islamic code of morality .[46] Consequently , the Shari`ah rules and regulations on the whole  provide practical measures to cater for all three levels of human interests ,namely,the vital needs, the complementary needs and the betterment requirement.A day to day example that illustrates the existence  of this hierarchy of human maslahah in the Shari`ah paradigm is the following :
One  of man`s vital needs is  housing ,the existence of windows to allow for ventilation in the house is complementary to it ,and  to equip the house with facilities ,such as furniture and beds are required to  enhance the quality of the house.  
Analogous situation in the Shari`ah is the case of  necessity  of  having  a din(religion) for  people.To safeguard this very vital maslahah for man , the Shari`ah puts practical measures by  which din can be nurtured and enhanced.For instance ,it ordains Muslim  to uphold the laws of obligatory `ibadah for consolidation of their sense of religious belief. To enable Muslims to perform the `ibadah  at all times, even if they are sick,various facilitating rules, such as praying in a sitting position, and performing taymmum when ablution is impossible, are allowed as part of hajiyyat. To enable Muslims to achieve more excellence in worshipping God, Sunnah prayers are recommended as part of tahsiniyyat.
Maqasid and waqf
       Ibn `Ashur places endowment under the haji category of the maqasid.  Hajiyat constitute the purpose behind those  provisions of  the Shari`ah which provide ease in case of difficulty and which eliminate or reduce hardship from people’s lives`. As Ibn `Ashur defines them as ,``That which Muslim community needs them for satisfaction of their well-beings and managing their affairs in a better way -because the non-existence of hajiyyat though does not lead to the  total  disruption of social order ,it  definitely  affects its orderly functioning.``[47]  For example, if  a sick  person is required to fast in the month of Ramadan , it will be very hard for him or  it may even be impossible  for him to do so .Therefore, the Shari`ah affords  such a person  the option  of postponing the days  during  which  he  due to illness can not fast .[48] In business transactions also, the Shari`ah has allowed a variety of contracts and trading practices on the the doctine of `umum al-balwa(inescapable necessity) if  an objectionable element in a business otherwise cannot be avoided at all .For instance, a negligible  rate of non-halal income that an investor gets by way of dividend is toletrated on account of unavoidable  situation.[49] Similarly in the area of human custom and habit(`adah), the Shari`ah  allows the incorporation of any local custom into the body of Islamic law in meeting  human needs so long as it is not otherwise prohibited. It likewise allows divorce in case if a marriage conflict becomes intolerable.[50]
    In this context, waqf to Ibn `Ashur  is one of the major components among the donations (sadaqat) whose raison det`re is to ease the difficulty faced by destitute and poor on top of   realizing  other social objectives which needs to be taken care of. The reason is that human greed would not have allowed supporting these causes had Islam not sanctioned them by clearly declaring that the merit for such benevolent acts even does not cease after death. That is why great companions such as `Umar, Abu Talhah and others like `Utham[51] took the lead to make waqf for public welfare.[52]  The implications of this theory, for waqf kahiri include the following:
     First, waqf in the scheme of maqasid, being a haji benefit is fundamental  in supporting religion, life, family,  human intellect and even property at the societal level. The reason is that waqf  if not instituted, houses of worship cannot be solely built and sustained on zakat fund as it is designated for other social causes besides fi sabil Allah. Poverty-stricken people who have no access to education, health care, daily means of sustenance would not expected to be a part of productive and meaningful citizenry among the Ummah. This is the logic behind the   organic connection behind the hierarchy of maqasid as the demand for daruriyyat creates the demand for hajiyyat and tahsiniyyat and also the principle that hajiyyat and tahsiniyyat are pursued for the sake of daruriyyat.
Second, the utility anticipated by waqf, namely the socio-economic welfare of the ummah would remedy the deviant economic behavior on the part some Muslims who spend bulk of their wealth on tahsiniyyat at the expense of hajjiyyat which in turn jeopardizes the necessities desired by Islam. For instance, optional hajj and `umrah  more often by  wealthy people  who never care about the plight of poor and social causes is a  case in point.  A question is raised here as to which of these voluntary devotions should be given priority , particularly in view of conditions  of extreme poverty, hunger and diseases that prevail in many Muslim  societies today.

A cursory study of the issue from Islamic sources would provide us with the answer that charity, which is more socially oriented than voluntary pilgrimage, should be given priority.
The reasons are:1)Muslims cannot remain unconcerned and indifferent to other peoples` misery and suffering based  on the authority of the Prophet`s tradition where he declared:``
The mutual love , kindness and graciousness of  Muslims function  like a body ;when some of its part are  in pain ,then all the other parts of the body become a victim of fever and sleeplessness .``[53] 2)The governing law of human relationship , in the Islamic view ,is one of sympathy and not antipathy. The Prophet clearly voiced this concern:``
A Muslim is a brother to  another Muslim . He shall neither oppress him nor should he usurp his right .He who provides for the needs of his brother, will be helped by God.And  for him   who removes one difficulty of a Muslim brother , God will remove one difficulty of his  on the day of judgement.And  for him who covers the defect of a Muslim brother, then on the day of judgement God will cover his defect.``[54] 3) In the event of a conflict between a voluntary worship and social responsibility, the rule is to fulfill the latter. This principle is drawn from the practice of Ibn `Abbas. Ibn Abbas one day was performing I`tikaf(spiritual retreat ) in the mosque. A man came to him . He saluted him and sat down.Ibn Abbas said to him that he looked worried and inquired what was the matter.The man replied:`` Yes O ! cousin of God`s prophet ; I have to repay some one`s debt but  I have no means to do so.`` Ibn Abbas said:`` May I talk to you in this connection ?`` He replied that if he wished to, he might. Ibn Abbas then put on his shoes and came out of the mosque. The man reminded him that he was observing I`ikaf ,which was  nullified  by the act of  going out of the mosque .Ibn Abbas replied:``No I have not forgotten .But I have heard from the prophet who said:`` He who walks for the need of his brother and satisfies his need , then his act is better for him than ten years  of I`tikaf and he who performed one day`s I`tikaf for God`s pleasure then God will place three trenches between him and  hell , and whose distance will be more than the distance between the East and West.``[55]

Hence , the above tradition makes it very clear that spending money for human welfare is more superior than doing the voluntary pilgrimages.
Consequently, Muslims who  perform the hajj and `um rah  repeatedly but  do not dispense with a single penny to help the poor and needy  have  certainly lost sight of the essence of worshipping God and the sense of priority and balance in their  acts of devotion to Him.
Third, understanding of this would prevent israf(prodigality)[56] and lavishness  spending (tabdhir). A person who lavishly spends on tasiniyyat , lets say leisure trips, feasts , wedding parties, etc while the poor and the orphans starve in  his backyard is committing the offence of israf and tabdhir as prohibited by Islam. More serious is when such practices become a social custom and widening   the economic  gap between the poor and needy and leads the latter to involve in crimes of theft, burglary etc.  The Prophet anticipated this when he said:`` O Abu Dharr ! when you prepare soup put a little more water in it , and see if your neighbour needs some.``[57]
Lastly, the main objective of waqf is  benevolence(al-birr) as held by al-Zarqa. Al-birr according to al-Zuhayli is a collective name embracing all donations dedicated to the destitute, scholars, relatives, mosques, schools, hospitals, welfare homes, hajj, striving for promotion of Islamic cause, researches and publications of Islamic books etc. Accordingly, dedication of waqf to mosques alone does not take care of other heads of hajiyyat for which waqf as one of the measures has been instituted in Islam as maintained by Ibn `Ashur.
Conclusion and recommendations
   Waqf which involves a process of holding up of the property and devoting its usufruct to the beneficiaries historically was an important source of financing  public utilities, education and researches, health care and caring centers for the orphans and disabled aside from providing capital for traders and maintaining mosques and providing space for burial of the dead.  Nevertheless, contemporary practice of waqf represents somewhat skewed understanding of the concept of waqf khairi as it is taken to mean devoting for purely ritualistic causes. This paper, therefore, argued for a paradigm shift on the part Muslims on the basis of the purpose of the Shari`ah and fiqh of priority. In this context, dedicating one`s wealth  for capacity building of the poor and needy secures life, intellect, creates wealth and increases the number of committed Muslims to uphold religion and go to pray in the mosques, built on waqf land. Loss of sensitivity to care for the public welfare, on the other hand, increases poverty which in turn plums up the social ill index.
Accordingly, to optimize contribution towards creation of philanthropic waqf(public endowment) in the wider sense as was the case during  the glorious days of Islam , we propose the following legislative strategies:
1-      At the epistemological level, the Religious Council of each States must emphasis the role of welfare type of waqf  within  the frame of other voluntary acts of worship via religious teachers involved in mosque related activities.
2-      At the juristic level, the idea of cash waqf and also temporary waqf as reflected by best practices, such as in Kuwait and South Africa should be popularized  so as to dispel the notion that waqf has to be in the form of  real estate or permanent assets.
3-      Baitulmal in coordination with Tabung Haji and Takaful Malaysia in turn can solicit    welfare endowment from  those who more often  go for voluntary Hajj and `Umarah.
4-      Baitulmal in coordination with other family members of the founder and non-profit organization could encourage creation of income generating endowments where the proceeds could be spent on social welfare. During Othman Caliphate cash was invested in mudarabah and the revenues generated from them were used for charitable purposes.[58]
5-      Popularize the idea of welfare waqf among the employees both in private and public sectors in order to encourage them part with a portion of their salary as tax-deductable waqf.



[1] Wahbah al-Zuhayli, al-Wasaya  wa al- waqf fi al –fiqh al-Islami, P.133.
[2] Ibid, pp.134-135. CF. Siti Mashitoh Mahamood, Waqf in Malaysia: legal and Administrative perspectives, p.1.
[3] Al-Baqarah: 215.
[4] Al-i-`Imran: 92.
[5] Al-Baqarah: 267.
[6] Sunan al-Timidhi , vol.3, p.660.
[8] Sunan al-Nasa`i, vol.6, p.230.
[9] Al-Shawkani, Nayl al-Awtar, , vol.2,p.136.
[11] Ibid.
[12] al-Zuhayli, al-Wasaya  wa al- waqf fi al –fiqh al-Islami,pp.136-137.
[13] Al-Zuhayli, al-Wasaya  wa al- waqf fi al –fiqh al-Islami,p.140.
[14] Ibid.
[15] Quoted in Abdul Fatah Bin Haji Kahlid, Islamic Law and Land in the State of Selangor,Malaysia: Problems of Administration and Islamisation, a doctoral thesis submitted to the University of Edinburgh, 1988,pp.240-243. see also Siti Mashitoh Mahamood, Waqf in Malaysia: legal and Administrative perspectives,p.17.
[16] Al-Zuhayli, al-Wasaya  wa al- waqf fi al –fiqh al-Islami,p.167.
[17] For details see, Ibid,pp.153-183; Abdul Fatah Bin Haji Kahlid, Islamic Law and Land in the State of Selangor,Malaysia: Problems of Administration and Islamisation, pp.234-238.
[18] Ibn Qudamah, al-Mughni, vol.5,p.585; al-Dardir, Sharh al-Kabir, vo.4,p.76; al-Shirazi, al-Muhadhdhab, vol.1,p.440; Ibn `Abidin , al-Radd al-Mukhtar `ala al-Durr al-Mukhtar, vol.3,p.408.
[19] Ibn `Abidin , Ibid,p.410. It is to be noted that cash waqf was explicitly recognized by Malikiyyah and ratified by other renowned jurists belonging to other schools such as Ibn Hajar. See al-Dardir, Sharh al-Kabir, vol.4,p.87; Ibn Hajar, Fath al-Bari, vol.5,p.475.
[20] See Ashraf bin Mh. Hashim , The Collection  of Waqf through Insurance Companies: A Critical Analysis of the Malaysian Experience, a paper presented in International Conference on Co-operative Insurance in the Framework of Waqf, ,International Islamic University Malaysia, 4-6 March 2008,pp.6-7.
[21] They also claim ijma` of companions on the issue when `Umar  ordered Baitu al-Mal in Kufah to be housed in Tamarin mosque which was not objected to by the former.   Hence, if that be the case, such an exchange would be valid provided that the future use of the sold mosque structure most be for other activities approved by the Shari`ah. Ibn Qudamah, al-Mughni, vol.5,pp.575-579.
[22] This is the opinion of the majority including the two disciples of Abu Hanifah. Abu Hanifah however, differed with them on technical ground by holding that waqf is a kind of revocable charitable undertaking where the owner can retract from it during his lifetime. See al-Shirazi, al-Muhaddab, vol.1, p.442; al-Bahuti , Kashshaf al-Qina`,vol.4, p.278; al-Dardir, Sharh al-Kabir, vol.4,p.101; Ibn al-Humam, Fath al-Qadir, vol.5,p.45.
[23] That is why the jurists declared the legally valid conditions of the founder as mandatory except as justified by court order or necessity.  For instance, if the founder made it a condition that the manager(nazir/mutawwalli) cannot be removed but the judge find such as person unfit for the job, in such an instance, he can be removed. Or if the founder stipulates that the endowment property cannot be rented for more than one year but this would make it unattractive for the tenants, which cannot be respected on this account. For details see Ibn Qudamah, al-Mughni, vol.5,p.552.
[24] Imam al-Shafi`i in asserting so held:``As far as I know , the pagan Arabs never endowed a house or a piece of  land before the advent of Islam.`` Quoted in al-Zuhayli, al-Wasayah  wa al-Waqf, p.136.
[25] www.allahswaqf.com(retrieved,17 June 2009. These historical data with minimum modification  have been adopted  from the web.
[26] Ibid.
[27] Ibid.
[28] Ibid.
[29] Ibid.
[30] Ibid.
[31] Ibid.
[32] Ahmed, The Role of Zakat and Awqaf in Poverty Alleviation,p.32.
[33] For instance in the Federal Territories as of 2002, there were 20. 735.61 acres of waqf land out of which 71% were for cemeteries, 19% for mosques and 6.9% for suraus. See Sadeq, A Survey of the Institution of Zakah,p.97.
[34] Al-Jathiyah :18
[35] Muhammad al-Zuhayli,Maqasid al-Shari`ah ,(Damascus : Dar al-Maktabi,1998),p.8
[37] This is a definition by Ahmad al-Raysuni.Al-Fasi defines it as the purpose and secrets that  the lawgiver has set for each rule of his laws. For these and  other definition by other authorities on maqasid see  ,Nur al-Din ibn Mukhtar al-Khadimi , `Ilm al-Maqasid al-Shari`ah,(Riyad: Maktabat al-`Abikan,2001),pp.16-17
[38] This is the definition of the  Shari`ah in true sense which distinguish it from the term fiqh .Fiqh signifies the  body of deduced substantive laws that represents the human understanding of divine law (as embodied in the Qur`an and the Sunnah ) as well as the operative rules (based on rational methodologies of ijtihad ) to regulate human conduct within time and space . see  www.almujtamaa-mag.com/Detail.asp(retreivd 29/03/06)
[39] Imran Ahsan Khan Nyazee,Theories of Islamic Law,(Islamabad : International Institute of Islamic Thought ,1994),p.240.
[40] As redefined by Nyazee as such.See ibid.
[41] This is the most popular  itemization of humam vital interest as outlind by al-Gahzali and elaborated by Al-Shatibi .Nevertheless other scholars ,such as  Ahmad al-Khamlishi,al-Qaradawi ,al-Raysuni and some other contemporary   authorities  such as construction being a result of  human ijtahad cannot  be taken as conclusive (or even exclusive),it can be expanded to include   other vital human interests within its ambit  such as  `ird(human dignity ),justice ,equality ,freedom ,socio-political and economic right of human beings..For details see  Jamal al-Din `Atiyyah ,Nahw Taf`il Maqasid al-Shari`ah ,(Damascus : Dar al-Fikr, 2001)pp.98-105  and Ahmad al-Raysuni ,Nazariyyat al—Maqasid `ind al- Imam al-Shatibi,(al-Rabat:Dar al-Aman ,1991) ,pp.358- 359
[42] Nyazee,Theories of Islamic Law,p.240.
[43]  al-Shatibi ,al-Muwafaqat fi Usul al-Shari`ah,vol.2,p.8 ,see also  Masud,Islamic Legal Philosophy ,p.226.
[44] Al-Shatibi ,ibid,p.10
[45] It is to be noted that Maqasid al-Shari`ah has been variously  classified  based on various considerations, and its division into daruriyyat ,hajiyyat and tahsiniyyat as we referred for the purpose of this study  represents the main one denoting  the overall objective of the Shari`ah in  taking into account the human need.For details see ,al-Raysuni , Nazariyyat al—Maqasid `ind al- Imam al-Shatibi,p.124; al-Khadimi , `Ilm al-Maqasid al-Shari`ah,pp.71-75
[46] Masud,Islamic Legal Philosophy,p.241-244.
[47] Muhammad Tahir ibn `Ashur,Maqasid al-Shari`ah al-Islamiyyah,Muhammad El-Tahir al-Mesawie(edit.),(Kuala Lumpur: Fajar Ulung Sdn.Bhd,1999)1st ed.p.223. ;see also al-Shatibi ,al-Muwafaqat fi Usul al-Shari`ah,vol.2,p.10
[48] A-Baqarah:184
[49] Islamiqmoney.com.
[50] Abu Yahya,Ahdaf al-Tashri` al-Islami,pp.174-175.
[51] `Uthamn bought the Well of Rumah and made it waqf under the instruction of the Prophet.
[52] ibn `Ashur,Maqasid al-Shari`ah al-Islamiyyah,pp.302-306.
[53] Mishkat al-Masabih.vol.1,p.291.
[54] Mishkat al-Masabih.vol.1,p.296.
[55]Quoted in al-Ghazali,Muslim` Character,p.309.
[56] M.Fahim Khan and Noor Muhammad Ghifari , ``Shatibi`s Objectives of Shari`ah and Some Implications for Consumer Theory``, in  Readings in Islamic Economic Thought, Abul Hassan M. Sadeq & Aidit Ghazali (edits), p.198.
[57] Al-Nawawi, Riyad al-Salihin, vol.1,p.192.
[58] Ahmed, The Role of Zakat and Awqaf in Poverty Alleviation , p.133,

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