Legal Framework for Waqf and Endowment in Malaysia: Co-Existence Exploration
Explore whether Waqf and Endowment can co-exist within a single legal framework in Malaysia, analyzing the challenges and possibilities. Investigate potential legal vehicles supporting both concepts and address the issues of implementation.
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Presentation Transcript
WHETHER WAQF AND ENDOWMENT CAN RIDE THE SAME LEGAL VEHICLE IN MALAYSIA? Sharifah Zubaidah Syed Abdul Kader Nor Asiah Mohamad ZuraidahAli (Civil Law Department Waqf and Trust Sub-Cluster, Property Law Research Unit (PLRU) Ahmad Ibrahim Kulliyyah of Laws
Outlines Introduction Statement of Problems Definition of Waqf and Endowment Legal Framework for Waqf and Endowment Organisational Structure for Waqf and Endowment Issues SWOT for Implementation of Waqf and Endowment Proposed Model Recommendation
Methods of research The method used is legal doctrinal and comparative legal methodology We analyse relevant literatures to gauge understanding on the concept of Waqf and endowment referring to various documents such as statutes and other secondary sources and explain the similarities and differences of both concept as well as the law applicable. We employ comparative study to understand how the two concepts work and propose for a standardised method in which both concept can be implemented within a harmonised legal structure with a clear waqf framework.
Introduction Waqf and endowment concepts are used for fund-raising and charity in Malaysia. Nevertheless, both are under a separate legal framework. This study explores whether Waqf and Endowment can co- exist in one legal vehicle. It further investigates the various legal vehicles available under Malaysian law that can support the two concepts. It will then look into the legal possibility of implementing both waqf and endowment within one legal vehicle and the challenges arising.
Statement of Problems Waqf - The problem relates to the role of Majlis Agama Islam Negeri being the sole trustee of waqf restrictive, lack of human resources, professionals, limited capitals etc. Not all states have Waqf Enactment. Endowment Among the questions are which law that governs endowment? Trust there are many laws that govern trust Trustee Incorporation Act 1952 (Act 258) where the law is outside of the legal framework provided under the state enactment relating to waqf. It is probably easier, and there is a specific department and statute that govern it, but does it comprehensive and certain as far as endowment is concern
Waqf and Endowment Endowmen Wakaf Isu/Merit Tiada kaitan dengan MAIN Nature Alternatif kepada kapitalis Pahala hingga kiamat Kaitan dengan MAIN ikut Perlembagaan Persekutuan Sources Semulajadi dan kemanusiaan Allah SWT Endowmen (bukan Islam) Wakaf (Islam dan Bukan Islam) Wakaf kerana Allah SWT dan ummah Serta semua makhluk Seksyen 39 Akta 171 Pemegang Amanah atau Penyumbang Mahkamah Sivil Seksyen tidak dinyatakan hanya lain-lain Wakaf Milik Allah, MAJLIS sebagai pemegang Amanah tunggal, DBKL sebagai pengurus 39 Akta 171 Ownership of Assets Endowmen tidak tertakluk kepada kerajaan Pengurusan wakaf samada oleh Majlis atau Persendirian dengan Kebenaran Majlis Diikat berdasarkan perjanjian (masih boleh dibatalkan) Terms/Sighah Terikat dengan hukum syarak dan terma Lebih Terjamin Kekal dan lestari, dasar yang jelas 6
Sources of Waqf Laws Fatwa Hukm Syarak Case Laws Administration of Islamic Laws, Waqf Enactments Decision of the Shariah Advisory Board Waqf
Issues Terms - are not clear and sometimes misunderstood, is endowment a kind of Waqf, is waqf a kind of endowment? Law Which law? Authority -Unclear, Conflict/Redundance of Authority Jurisdictions - Management and Monitoring -
Discussion and Recommendation We will suggest for the method/Models of reconciling the two concepts for a better implementation in Malaysia. Recommendations will include: A. reform of the law relating to endowment in the form of non-profit organization and incorporated trustees as well as suggestions for recognition of a legal vehicle that is able to incorporate both, waqf and endowments. B. Endowment Models C. Waqf Models D. Endowment and Waqf Model
Focus Recommended Strategies Pengurusan Endowmen Endowment- can use the existing structure with added initiative such as: - Appointment of Shariah Advisory - Introduce Shariah Compliant product Infaq - Separate account - No need to apply for license from MAJLIS - Collaborate with MAJLIS to channel infaq for Waqf products/projects WAQF as Mutawalli Apply the license -create additional structure/separate structure to be Shariah compliant Fund Management Shariah compliant, industry standard , State based policy Penasihat Syariah, A separate fund/vote for waqf and endowment Salary of staff fr Manfaah or main administration Internal policy of allocation of 1% from all parties secure projects to contribute for waqf/endowment fund Tax rebate or Exemption Pengurusan dan penasihatan secara professional dana melalui pelbagai kaedah moden Sumber Manusia- Search for talent/training Establishement of Waqf Unit/dept Corporate Social Services via Waqf To create waqf project/products/as a way to reduce social
