Legal Framework of Shari’ah Corporations in Malaysia;

Special Reference to Waqf Corporation”

By

Hartinie binti Abd Aziz1, Zuhairah Arif Abd Ghadas2 ,

Abstract

In Malaysia, the Islamic commercial institutions were

established under respective legislations which contain express term

on their status as a body corporate. Examples of these institutions

are Islamic banks, zakah institutions, Pilgrimage Board and Islamic

insurance (takaful) companies.

 In 1998, Johor Corporation (JCorp) initiated a corporate waqf entity

known as Waqaf An-Nur Corporation Berhad (WANCorp). In 2011, Majlis Agama

Islam Wilayah Persekutuan (MAIWP) collaborated with Tabung Haji to

develop a Class AWaqf building leased to Bank Islam Malaysia Berhad

(BIMB).  The developments in waqf involving corporate entities are worth

to be analyzed in order to create a new framework of waqf practice.

 This paper analyze the corporate status of waqf corporations under the

Malaysian law and compares them with the principles of Islamic law

(Shari’ah). This paper involves a case study on WANcorp and Awqaf Holdings, which is

one of waqf corporations in Malaysia.

 Key words :   Body Corporate, Waqf corporation, Company

1Academy of Islamic Studies & Arabic Language, Kolej Yayasan Pahang and currently is pursuing her Phd in University of Sultan Zainal Abidin, Terengganu, Malaysia (E-mail: hartinie@kyp.edu.my)

2Faculty of Law and International Affairs, University of Sultan Zainal Abidin, Terengganu, Malaysia

(E-mail: zuhairahariff@unisza.edu.my)

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Introduction

In Malaysia, Islamic institutions were established under respective legislations which contain

express term on their status as a body corporate. Examples of these institutions are zakah

institutions, Pilgrimage Board (Lembaga Tabung Haji) and Takaful Malaysia (an Islamic

insurance company). All companies which run Shari’ah compliance businesses in Malaysia

are required to be registered under the Companies Act 1965 which then entails them the

status and attributes of a body corporate. The legal effect as a body corporate are it shall be

an entity separated from its director or founder. Besides, it shall have perpetual succession

and have the power to sue and be sued in such corporate name. As a corporation it may

acquire, purchase, take, hold, and enjoy movable and immovable property , and may convey,

assign, surrender, yield up, charge, mortgage, demise, reassign, transfer, or otherwise dispose

of, or deal with, any of those property or any interest therein.(Hassan, Abd Ghadas, & Abd

Rahman, 2012).

Waqaf corporation

Waqf is an Islamic concept of endowment whereby the properties are held in trust and used

for a charitable or religious purpose. In Waqf corporation, the practice of Waqf (endowment)

are structured into the commercial corporations whereby it is compulsory for the companies

to contribute to the society and it is a must for them to spend certain amount of their profit to

the community. Under this new “corporate practice”, the companies are reminded not to

forget the values of Islamic teachings in carrying on business which includes the obligation to

donate a certain proportion of profit to the community or for charitable causes.

The first waqf corporation in Malaysia is Waqaf An-Nur Corporation(WANCORP) which

had been established on 2004 by Johor Corporation.

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According to Tan Sri Ali Hashim in his books, Strategi Jihad Bisnes, Waqf Corporation is a

new corporate institution initiated by Malaysia without any other model alike in Islamic

world. Thus, to define what is waqf corporate need a special resolution to identify the criteria

that need to be fulfilled as a waqf corporate. Nowadays, there are a lot of institution is doing

waqf in share of ownership in company for the purpose of public interest in the society as

what had been done by Vehbi Koc Foundation in Turkey. However, this practiced had not

suit with the real meaning of waqf corporation.

Based on the experience of WANCORP, there are 8 criteria that need to be fulfilled to qualify

the corporation as a waqf corporation.

1. The corporation must be established under the Companies Act 1965 as a company

limited by guarantee.

2. As a corporate waqf, the company must be empowered to receive endowments in the

form of cash, Share, business, physical or intangible assets including land, buildings

or intellectual property from institutions, corporations or members of the public,

though ownership of physical assets are in themselves not necessarily to be registered

as waqf assets.

3. The corporate waqf must have been appointed as a nazir or mutawalli by Islamic

Religious authority (in the Malaysian case-by one of Malaysia’s Majlis Agama Islam

at the state and National level).

4. The company must at all times uphold and abide by business principles and best

corporate practices, undertaking business ventures through sustainable entrepreneurial

effort. The key to Corporate Waqf success therefore depends on its ability to mobilise

the best entrepreneurial talent to grow business over the long term and create business

opportunities for aspiring entrepreneurs.

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5. To achieve the long-term goal of economically empowering the ummah, corporate

waqf had giving higher priority to accumulating and conserving the resources by

stipulating in the trust deed that 70% of annual profit/surplus be allocated for

reinvestment and not more than 30 % to be distributed for charity.

6. The waqf corporate have full autonomy in the business transaction led by the CEO

with the supervision of board of director

7. The waqf corporate will open the membership to public by waqf fee based on

category as determined in the memorandum of association of company.

8. The waqf Corporation have to practice the good corporate governance to determine

the accountability of the company. It must at all times be fully consistent with the

Shariah, and aspire to realise the goals of Maqasid al-Shariah.3

Based on the eighth criteria mentioned above, we can see the difference of waqf corporate

and waqf saham which had been practiced by many company. The waqf saham practised

before, is more on fulfilling the corporate social responsibility and the company will be

totally depending on the waqf fund given by the public while in the waqf corporate, it was

aimed to generate the fund for business long term and to make sure that the waqf fund

given by the waqif will create the wealth for the benefit of Muslim society.

THE WAQF AN-NUR CORPORATION AND AWQAF HOLDING BHD MODEL

Waqaf an-Nur Corporation is a company limited by guarantee established by Johor

Corporation(JCORP) of Malaysia. Initially registered in 2000 as Pengurusan Klinik Waqaf

An Nur Sdn Bhd offering medical services at a charge of Rm5 per treatment to low -income

patients at clinics located largely at mosque compounds financed by waqf funds, the company

was elevated into a Waqf Cororate entity in 2006 when JCorp endow into waqf US$66

3 http://awqaf.com.my/artkel-waqaf korporat-Tan Sri Ali 29-10-15

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million or RM200 million at (at Net Asset Value) of JCorp shares in three Malaysian Pubic

Listed Companies (PLCS). The shares involved were in a palm oil plantation company Kulim

Malaysia Bhd, a top Malaysian Companies involved in a private healthcare delivery, KPJ

Healthcare Bhd, and a leading property developer, Johor Land Bhd. However, Johor Land

Bhd shares were subsequently replaced through istibdal by Al-Aqar KPJ REIT Bhd, a

healthcare -related Islamic property trust copay that is also listed on the Malaysian Bourse.

The WANCorp model of Corporate Waqf even though was a ground initiative, but its

limitation is that, it is GLC-driven and more relevant for the transformation of GLCs into

Waqf Corporations. To transform the Malaysian economic system away from its current

narrow, shareholder-centric, materialistic and self-serving attributes to one that is more

selfless, community-centric, more sustainable system that Is ultimately ‘adl and socially just

require the development of Corporate Waqf model initiated by the community and engaging

the community at large in its establishment and operations. Therefore, the establishment of

AWQAF Holding was based on community-driven initiated by Malaysian Islamic Chamber

of Commerce (Dewan Perdagangan Islam Malaysia) in 2010. AWQAF was also established

as a company limited by guarantee and had adopted all the basic parameters of WANCorp as

Corporate Waqaf with one exception- that’s its initial funding is financed not by GLC but by

its founding member s and through public funding participation. One unique AWQAF feature

is that, it integrates into its business model the opportunity for business investments as well as

contributing to a waqf for a return in the Hereafter(Hashim, 2015)

Conventional Corporate Structure under Malaysian Companies Act 1965

The doctrine of separate legal entity had been introduced by the English common law through

the decision made by the court in the Solomon’s case. This doctrine has received its

application in Malaysia via the Companies Act 1965 (Act 125). Section 16(5) laid down the

effect of its incorporation, namely:

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1. A company shall be regarded as a body corporate, capable of exercising all the

functions of an incorporated company.

The term ‘body corporate’ is not defined under the Companies Act 1965. However, generally

it covers both the ‘companies’ and ‘corporation’. Both of these terms are defined under

Section 4 of Companies Act 1965 Corporation can be defined as anybody corporate formed

or incorporated or existing within Malaysia or outside Malaysia and includes any foreign

company. ‘Corporation’ is one of an artificial legal person (Zuhairah Ariff, 2003).in the case

of Tan Lai v. Mohamed Bin Mahmud [1982] ,Salleh Abas FJ,held that it is a “body

corporate” as a result of statutory acts of the Registrar of Companies for which it is capable

of exercising the functions of an incorporated In addition to that, Zakaria Yatim, J in People’s

Insurance Co (M) Sdn Bhd v. People’s Insurance Co Ltd & Ors [1986] held that under the

ordinary rules of law, a parent company and its subsidiary company, even a wholly owned

subsidiary company, are distinct legal entities.

2. A company will have the right of suing and being sued.

In the case of Foss v. Harbottle (1843)., the court had established the rule which is known as

the ‘proper plaintiff rule’ whereby in this case, the court held that, A member of the company

cannot sue on the company’s behalf to enforce a company’s rights. If a director breaches his

duty to the company, it is the company who has the right to sue him. A member cannot sue

the director on the company’s behalf. Similarly, if a contracting party breaches his contract

with the company, it is the company who has the right to sue the contractor. In the case of

Lee Eng Eow (as director of Lee Guat Cheow & Co Sdn Bhd) v Mary Lee (as executrix of

the estate of Low Ai Lian) & Ors [1999], the Court of Appeal had laid down the statutory

effects of an incorporation, whereby an incorporated association has a legal personality of its

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own apart from the persons who comprise it; even though it is not specifically provided in the

Companies Act 1965.

3. A company will have perpetual succession.

To illustrate on this point, in the case of Abdul Aziz Bin Atan v. Ladang Rengo Malay Estate

Sdn. Bhd. [1985], despite changes in the membership, the corporate entity continues

unchanged as decided in Re Noel Tedman Holdings Pty Ltd [1967], the company may even

continue to exist despite the death of all its shareholders and directors.

4. A company will have the power to hold land and other property.

Article 9 of the Third Schedule to the Companies Act 1965 provides that a company

possesses the power to purchase, take on lease or in exchange, hire and otherwise acquire any

movable or immovable property. Besides, such rights are also conferred onto states by the

National Land Code, where section 43(b) conferred on the State Authority with the power to

dispose the land to the corporations.

Even though section 16(5) of Companies Act 1956 only mentions the right to own land, a

company also possesses the right to own other sort of property (Tan Cheng Han, 2005). The

property will be treated as the company’s own and not the shareholder(Hassan et al., 2012;

Zuryati, Azrae, & Yusoff, 2009). Therefore, even if a person owns all the shares in the

company, he does not own the company’s property nor does he have any legal or equitable

interest therein (Macaura v. Northern Assurance Co. Ltd. [1925]).

5. The liability on the part of the members to contribute to the assets of the company in

the event of its being wound up are provided by the Companies Act 1965.

For example, according to s. 214(1)(d) of Companies Act 1965, in the case of a company

limited by shares, the liability of its members is limited to the amount unpaid on his or her

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shares in the company. This was noted as one of the benefit enjoyed by the members of the

limited company (Rachagan et al., 2005). The above discussion clearly highlighted that the

Companies Act 1965 adopted the English principle of corporate entity, which give rise to all

the statutory attributes of a corporation.

Therefore, we may conclude that there are two types of person recognized by the law. The

first one being the natural person or human beings; and the second would be the artificial

person (Tan Lai v. Mohamed Bin Mahmud [1982]), which includes any being other than

human being which the law recognized as having duties and rights. One of the most

recognized artificial person is the corporation. Thus, we can see that the doctrine of separate

legal entity is a fundamental legal principle which draws a distinction between an

incorporated company and those people who have a control over it. A company will continue

unchanged even if the identity of the participants in it changes (Aiman Nariman et al., 2002)

LEGAL ENTITY OF BODY CORPORATE UNDER SHARIAH

As mentioned earlier, under the conventional corporate structure, company is recognised as a

body corporate created by law to be an artificial person which hold few attributes inter alia

right to sue and being sued and power to hold a property under its own name. However,

under shariah law, the discussion on artificial person is derived from the views of the Muslim

Jurists on the entity of shaksiyah i’itibariyah ( الشخصية According to a modern .( االعتبارية

Muslim scholar, Imran Ahsan Khan Nyazee there has been a prolonged debate among Islamic

jurists on the existence of the concept of a fictitious person (shaksiyah i’itibariyah) and

majority of the modern scholars insist that such concept was known to Islamic law whist

some are doubtful whether Islamic law was aware of such concept.(Nyazee, 2006). Nyazee

also contended that although Shariah does recognize the principle artificial person, it does not

mean that all institutions based on this concept automatically become legal. Under Shari’ah,

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the implementation of such concept in different forms needs separate analysis. As an

example, the existing structure of the business corporation which enables it to issue securities

must be free from riba and it must also fulfill all the requirements on conducting businesses

in Islam.

According to Mustafa Ahmad al-Zurqa, a modern jurist in fiqh :

‘’If these institutions which exist now recognized fictitious personality existed in the

early era of development in fiqh, it would be obvious that is would be recognized by

the fuqaha at that time through legal justifications which are similar to legal

justifications of the institution of Daulah, Bayt al-Mal, al-Waqf.’’(Al-Zurqa, 1964).

Mustafa also took the view that the theory which recognizes the entity other than human

being as a legal person can be justified through the theory of fiqh known as al-Dhimmah. The

term of al-Dhimmah has been discussed by many Muslim jurists in various opinions.

According to Madhab al-Syafie jurists, al-dhimmah is an attribute of human being with duties

(al-ilzam) and also obligations (al-iltizam).(Al-Kabashi, 1989) This definition is also

accepted by jurists of Madhab Maliki, Hanafi and Hanbali(Al-Buhuti, 1947).

Al-Sarakhsi defined al-Dhimmah as a fixed attribute of a person accepting obligations and

duties. This concept relates to an obligation and capacity (al-ahliyyah) as well. The

application of this concept as discussed and applied by the jurists since the early era of the

development of fiqh does not connote the same definition. Majority of the fuqaha have

acknowledged the existence of other than human being which is entitled to some rights and

responsibilities. However, unlike the common law, the Islamic scholars discussion

concerning the artificial person not only relies on the entity itself but more on whether it is

subject to obligation and responsibilities as required under Islamic law.

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According al Makashifi Thoha al-Kabashi(Al-Kabashi, 1989), the fiqh of Islam does

recognizes the existence an artificial person (al-syakhsiyah al-I’tibariyyah) as it is applicable

to hospitals, waqf, and syarikaat and as al-dhimmah, these entities have certain rights and

obligations. He also claimed that this artificial person enjoys the concept of al-ahliyyah al-

kamilah similar to human being with having certain rights and obligations as stated under

section 53 of the Egypt Civil Law that artificial person enjoys full rights unless such rights

are restricted only to human being.

According to Fauzi Muhammad Sami(Sami, n.d.), artificial person or as-syakhsiyah al-

ma’nawiyyah which is also known as al-syakhsiyah al-I’tibariyyah is also extended to

partnership (syarikaat). It is a group of persons or properties in which collected in achieving

certain objectives. Thus it is regarded as the only person who is clearly independent from

other persons or properties earned by them. He gives two examples of this concept which are

partnership and university institutions. Partnership is an independent artificial person from

other partners. Meanwhile, university is a fictitious which is for the purpose of education. He

further mentioned that there are 2 essential elements of the artificial person itself which are:

1) there must be a body of persons or property as created as for certain roles and 2) such body

or group must be recognized by the state either explicitly or impliedly. This recognition can

happen either in general or specific way. Consequently, there are certain effects of this

partnership becoming an artificial person such as al-dhimmah of the partnership is the

property itself, there must be specific name for the company and it has the capacity of

performing dispositions with dealing with certain rights and responsibilities.

Although there are many Muslim jurists supported the application of doctrine of artificial

person in Shari’ah, there are also some Muslim scholars who are contested the acceptance of

such principle in Shari’ah. For example, al-Bazdawi and al-Nawawi, took the view that al-

dhimmah is a dzat which is real and cannot be fictitious because the Syariah only imposed

10

obligations and rights on real person. Al-Tahanawi also emphasized that the term al-

dhimmah is synonymous to human’s attribute and not applicable to artificial entity as it has

relevancy to interpretation of liability and obligation. Al-Sarakhsi, highlighted in his book

that when dhimmah was offered to the mountains, they refused it as thet would afraid that the

cannot fulfill the required obligations but human being accepted it. Thus al-dhimmah is an

attribute conferred only by Allah swt and it is a trust resulting from a covenant (‘ahd). The

fact that dhimmah is a covenant between Allah swt and the ‘abd (servant of Allah) means that

it can only be assigned to a natural person.(Nyazee, 2003). As such, unlike the common law,

the staus of legal person in Islam cannot be conferred to entities other than human. Abdul

Aziz Ahmad al-Bukhari (al-Bazdawi) took the same view as Al-Sarakhsi and emphasized that

dhimmah refers to ‘ahd (covenant) as Allah created a mankind with amanah, aql , dhimmah,

enjoys the right of innocence (‘usmah), freedom and ownership and carries the duties as

Allah’s rights towards him(Al-Bukhari, n.d.).

Referring to the modern Muslim jurists, the theory of artificial legal persons and corporate

personality are generally viable but such acceptance cannot be absolute or total adoption of

the common law doctrine. A balance approach is highlighted by Imran Khan Nyazee (2006),

whereby he contended that the ruler may assign a restricted or limited dhimmah to a non-

human on the following conditions:

1. That no religious duties will be expected of a fictitious person. In other words, the

fictitious person will not be subject to the khitab of ibadat and will not be liable for

any religious duty or obligation that may flow from it. Thus, it will have no liability

for zakat, for sadaqah, or for any other religious tasks as these duties are attached to

the ‘ahd of human with the creator (Allah swt).

2. That some form of ‘aql must be associated with the fictitious person. This ‘aql may be

that of one individual or group of individuals like the board of directors. The ahliyyat

11

al-ada’ will always be associated with this source of ‘aql, and so will the liability for

such acts.

3. That a concept of dual title of ownership must be associated with a fictitious person.

Any property held by the fictitious person in its own name must be assumed to be

held on behalf on behalf of the members of this fictitious person as a result of khalt or

mingling of capitals. In addition, the body corporate may have full right of disposal

and transaction in the property if so permitted by its members.

Referring to the guidelines proposed by Nyazee , it is obvious that in adopting the common

law doctrine of corporate personality , there should be some modifications to the obligations

of the company as a legal entity and to the board of directors and members who form the

“aql” of the companies. Rather than having total independent and separate legal entity from

the directors and members, Nyazee highlighted that in the Shari’ah corporations; there should

be a dual ownership and liability structure. This is important because as an artificial person,

the company could not in reality own and manage properties and also cannot be physically

arrested and make accountable for default with the third parties. In short, although the

adoption of the common law doctrine of artificial person is possible under Shari’ah, the

application of the law under Shariah requires certain modifications.

LEGAL FRAMEWORK FOR SHARIAH CORPORATION

In Malaysia, all Islamic commercial institution was registered under the Malaysian

companies act 1965. These institutions were including tabung haji, zakah, and waqf

corporation. As a creature of the statute, the existence of a company is totally dependent on

the provisions of the Companies Act. Thus it is recommended that all Islamic commercial

institution such as waqf corporation be framed under Shariah corporate structure.

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Shariah corporate structure is not similar with the conventional structure. The legal

framework for the Shariah Corporation should fulfill all the requirements below:

a. Maqasid Syariah as the basis of the business framework

The term Maqasid is derived from a verb qaseda which means the goals and purposes.

Maqasid itself means goals or objectives and when such term is attached to the word

Shari‘ah it specifically refers to goals or objectives of Shari‘ah. According to Imam al-

Ghazali, the objective of the Shari‘ah is to promote the well-being of all mankind, which lies

in safeguarding their faith (din), their human self (nafs), their intellect (`aql), their lineage

(nasl) and their wealth (mal) (Chapra, n.d.)

The goal of sacrifice or good deeds according to Allah (S.W.T) is the sincerity and Taqwah

(piety). In other words it can be said that all business activity should be carried out based on

sincerity and piety. However, as is seen in the above verse, all undertakings must be done to

please Allah (S.W.T), which is the common requirement for any good deed in Islam.

Therefore, corporations and all business entities in an Islamic state should render their

business activities only for the sake of the God. The Prophet Muhammad (S.A.W) highlights

the importance of giving rather than taking and everyone should do charity especially when

one is self-sufficient.

b. Legal Status of Business Entities

The concept of corporation under Shari’ah is based on the doctrine of artificial legal person.

The discussion on artificial person under Shari’ah is derived from the views of the Muslim

Jurists on the entity of shaksiyah i’itibariyah ( الشخصية According to a modern .( االعتبارية

Muslim scholar, Imran Ahsan Khan Nyazee there has been a prolonged debate among Islamic

jurists on the existence of the concept of a fictitious person (shaksiyah i’itibariyah) and

13

majority of the modern scholars insist that such concept was known to Islamic law whilst

some are doubtful whether Islamic law was aware of such concept.(Nyazee, 2006).

The theory of artificial legal persons and corporate personality are generally viable but such

acceptance cannot be absolute or total adoption of the common law doctrine. Nyazee

proposed certain guidelines that, in adopting the common law doctrine of corporate

personality, there should be some modifications to the obligations of the company as a legal

entity and to the board of directors and members who form the “aql” of the companies.

Rather than having total independent and separate legal entity from the directors and

members, Nyazee highlighted that in the Shari’ah corporations; there should be a dual

ownership and liability structure. This is important because as an artificial person, the

company could not in reality own and manage properties and also cannot be physically

arrested and make accountable for default with the third parties.

In short, although the adoption of the common law doctrine of artificial person is possible

under Shari’ah, the application of the law under Shariah requires certain modifications.

c. Decision Making Structure

The type of involvement implicit in shuratic decision-making procedures provides a vehicle

for ensuring that corporate activities and strategies are fully discussed and that a consensus-

seeking consultative process is applied. Directors and senior managers would be expected to

listen to the opinions of other executives before making a decision and shura members would

include, as far as possible, representatives of shareholders, employees, suppliers, customers

and other interested parties(Lewis, 2005)

d. Shariah Audit

The institution of hisba offers a framework of social ethics, relevant to monitor the

corporation, with the objective of encouraging the correct ethical behaviour in the wider

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social context. It also empowers individual Muslims to act as ‘private prosecutors’ in the

cause of better governance by giving them a platform for social action.it provides a device to

solicit juristic advice, monitor compliance with Islamic precepts and collect zakah. This extra

layer of auditing and accountability for resource use ensures that the enterprise operates as an

Islamic concern.(Lewis, 2005)

e. Shariah Good Governance

Corporate governance is the relationship among various participants [chief executive officer,

management, shareholders, and employees] in determining the direction and performance of

corporations. It ensures that the board of directors is accountable for the pursuit of corporate

objectives and that the corporation itself conforms to the law and regulations (Choudhury &

Hoque, 2013).

Generally, it is observed that the main objective of the corporation including the so called

Islamic corporation is to maximize the shareholder’s value of wealth. This governance

structure in Islam do differ from the normal corporate governance in the standardization of

rules which must obey the Shariah rules stated in the holy Quran(Alnasser, 2012).

To conclude, since the developments in waqf involving corporate entities are growing

rapidly, thus, it is worth to create a new framework of waqf corporation. Thus, it is not only

supply Shariah-compliant products and services but the corporate vehicles offering such

product or services would also be Shariah-compliant.

CONCLUSION

Based on the above discussion, it can be concluded that, in Malaysia, all companies need to

be registered under the companies at 1965 for which it was based on conventional

framework. and even though the application of the common-law doctrine of corporate legal

15

personality as an artificial person could be accepted under Shari’ah but it is subject to certain

modifications and therefore shall not be a direct application.

To develop the shariah corporation framework it gives rise to the questions of to what extend

the provisions of companies Act could be applied to Shari’ah corporations. Whether the basic

elements such as rights to own property and rights to limited liability need to be modified,

and many more issues will require specific analysis, such as composition of BOD, their

rights, obligations and duties to the companies.

As such, more in depth research need to be undertaken to discuss arising issues which

resulted from the adoption and application of the common-law doctrine of corporate

personality in Shari’ah corporations as well as to develop the new provision for Shariah

corporation framework.

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