Siti Aishah Hassan & Rusnadewi Abdul Rashid

ISBN 978-967-394-230-5 [PROCEEDINGS OF IDMAC2015]

9th ISDEV International Islamic Development Management Conference

(IDMAC2015) 345

TOWARDS IMPROVEMENT OF THE RIGHTS AND DUTIES OF

MUTAWALLI AND NAZIR IN THE MANAGEMENT AND ADMINISTRATION

OF WAQF ASSETS

Siti Asishah Hassan1

Rusnadewi Abdul Rashid2

Abstract

In waqf, the appointment of mutawalli and nazir as trustees could be seen as a vital part

because they are responsible for managing, maintaining, protecting and developing the

founder’s estate for the benefits of Muslim community. In Malaysia, Islamic Religious

Council of each state is appointed as the sole trustee of waqf property. However, there

are some situations where private mutawalli and nazir (trustees) are appointed to

manage and administer the waqf property and they are normally within the founder’s

family. Nowadays, with the increasing numbers of cases on criminal breach of trust and

fraud the law plays an important function in the matters of appointment and defining the

rights and duties of Muslims trustee as mutawalli and nazir. Basically, there are no

specific laws or legislations which govern the rights and duties of Muslims trustees in

matters pertaining to waqf. Therefore, waqf properties are exposed to mismanagement

and it may deny the real purpose of waqf whereby it must be administered according to

the original intention of the founder. The problem may cause a variety of negative

implications from the legal, economics, religious and social aspects. The research

mainly aims to examine the issues relating to the rights and duties of mutawalli and

nazir in Malaysia and it is based on a qualitative study and the approach to be applied

is a content analysis methodology.

Keywords: mutawalli; nazir; trustee ; administration of waqf assets

1 Postgraduate Student at Faculty of Law, Universiti Teknologi MARA , email: [email protected]

2 Ph.D., Senior Lecturer at Faculty of Law, Universiti Teknologi Mara Perlis, email:

[email protected]



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INTRODUCTION

Waqf is a perpetual dedication of a property for any object and it is recognized by the

Islamic law as religious, pious, or charitable.3 It also refers to religious endowment and

family trusts. Kahf (1992) defines waqf as “ holding certain property and preserving it

for the confined benefit of certain philanthropy and prohibiting any use or disposition of

it outside that specific objective. Section 2 of Selangor Administration of Islamic Law

Enactment 2003 defined waqf as “ any property from which its benefits or interest may

be enjoyed for any charitable purpose whether as waqf am (created for a general

charitable purpose) or waqf khas (created for a specified charitable purpose) in

accordance with hukum syarak, but it does not include a trust which is defined under the

Trustee Act 1949”. The effect of waqf not only benefit in this world but also a

continuous reward to the trustee till the netherworld.4 Nowadays, waqf is used not only

for religious purposes such as building a mosque, surau and cemetery but its scope is

very wide and applicable for various purposes such as for charity, agriculture, social and

education.

Generally, the appointment of mutawalli or nazir in waqf institution will enable the waqf

properties to be properly managed, developed and well-administered for the benefits of

the Muslim ummah and it must be preserved in accordance with the law. In Malaysia,

matters pertaining to waqf is governed by several laws, such as, the Federal Constitution

1957, National Land Code 1965, Administration of the Religion of Islam (Federal

Territories) Act 1993, Wakaf (State of Selangor) Enactment 1999, Wakaf (State of

Negeri Sembilan) Enactment 2005 and Wakaf (State of Malacca) Enactment 2005, and

the respective Administration of Islamic Law Enactments of different states.

Additionally, other laws having impact on the administration of waqf namely the

Trustee Act 1949, Specific Relief Act 1950 and Contracts Act 1950

In waqf, mutawalli or nazir is known as trustee-manager of waqf assets. Thus, the

appointment of mutawalli and nazir as managers of waqf could be seen as an important

part because they are responsible for managing, maintaining, protecting and developing

the founder’s estate for the benefits of the Muslim community. Nowadays, in most

countries one of the main problems arises is a lack of management of waqf properties.

There are several factors that contribute to the problem of waqf management such as

legislative lacunae, misapplication or misuse of waqf assets, lack of honesty and

integrity, lack of skills, lack of awareness of waqf among the Muslims society and many

more. For that reason, this paper attempts to focus on the roles and responsibilities of

mutawalli and nazir in the administration and management of waqf assets in Malaysia. It

is mainly aims to examine the issues relating to the rights and duties and of mutawalli

and nazir as the trustees under Malaysian law. 3 Rashid, S.K (2012), Measures for the Better Management of Awqa, (2012) 20 IIUMLJ 103. p.110

4Kader, S. A., Zubaidah, S., Dahlan, M., & Hilal, N. (2009). Current legal issues concerning awqaf in

Malaysia.p.2



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THE ADMINISTRATION OF WAQF ASSETS IN MALAYSIA

In Malaysia, previously waqf was administered by community leaders or respected

people such as the kadis, imams, bilals and the penghulus. However, after the coming of

the British in the 17th

century, waqf was administered by official trustees, either by the

British-led-administration or the states’ religious councils. Mahamood (2006) relates

that the abuses of waqf properties and misadministration of the waqf funds by the waqf

administrators had impelled the British government to intervene in the waqf

administration as ‘it could no longer be avoided’. On the other hand, after Merdeka Day,

all waqf property falls under the jurisdiction and power of the respective states’ religious

councils to manage pursuant to the respective Administration of Islamic Law

enactments.5 Waqf institution contributes a lot of development with the introduction of

various systems of laws and regulations relating to the administration of waqf. However,

there are some issues and problems which involve civil regulations intervention,

financial and also administrative restrictions.6 Under Schedule 9 List II of the Federal

Constitution, each states is given powers to make laws on waqf and its administration.

Thus, the state authorities have taken several steps and measures in improving the waqf

law by introducing few provisions in the administration of Islamic law enactment and

specific waqf enactments. For instance, Selangor, Malacca and Negeri Sembilan have

created specific statutes called Wakaf Enactments such as Selangor Wakaf Enactment

1999, Malacca Wakaf Enactment 2005 and Negeri Sembilan Wakaf Enactment 2005.

While the other states which do not have such enactments have codified the provisions

in the administration of Islamic Law statutes such as Administration of Islamic Law

(Federal Territories) Act 1993 (Act 505). Thus, matters pertaining to waqf in Malaysia is

governed separately in every state and there is no uniformity in legislation, management

and administration. Due to the absence of this provision, there are some parties not

responsible for the misuse of waqf, assuming that waqf is the public domain that can be

dominated and abused any time by simply arbitrary.7 Abdul Rashid (2013) states that

there are few people who still hesitate to endow their property for waqf as they fear that

their waqf property will be misused or left idle and this may deny the real intention of

the donor in getting rewards and blessings from Allah S.W.T.

5ibid

6Mahamood, S. M. (2006). Waqf in Malaysia: Legal and administrative perspectives. First ed. Kuala

Lumpur: University Malaysia Press. p.27 7 Harun, F. M., Possumah, B. T., Shafiai, M. H. B. M., & Noor, A. H. M.(2014) Empowering Higher

Education Institution: The Role of Waqf-Malaysian Perspective. Proceedings of the Australian Academy

of Business and Social Sciences Conference 2014 (in partnership with The Journal of Developing Areas)

ISBN 978-0-9925622-0-5. p.6



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STATE ISLAMIC RELIGIOUS COUNCIL (SIRC) AS THE MUTAWALLI OF

WAQF ASSETS

In Malaysia, State Islamic Religious Council (SIRC) or Majlis Agama Islam Negeri

(MAIN) is appointed as the sole trustee or mutawalli of waqf property. Section 32 of

Wakaf (State of Selangor) Enactment 1999 states that:

“Notwithstanding any provision to the contrary contained in any instruments or

declaration creating, governing or affecting any wakaf, the Majlis shall be the sole

trustee of all wakaf, whether wakaf am or khas, situated in the State of Selangor.”

Section 32 of Wakaf ( State of Malacca) Enactment 2005 provides that:

“Notwithstanding any provision to the contrary contained in any instruments or

declaration creating, governing or affecting any wakaf, the Majlis shall be the sole

trustee of all wakaf, whether wakaf am or khas, situated in and outside the State of

Malacca.”

Further, Section 5 of Wakaf (State of Negeri Sembilan) Enactment 2005 states that:

(1) “Notwithstanding any provision to the contrary contained in any

instrument or declaration creating, governing or affecting any wakaf-

a) the Majlis shall be the sole trustee of any mawquf, situated in the

State of Negeri Sembilan;”

The main function of SIRC is to give an assistance and advice to the ruler on matters

relating to Islam and Malay Customs in the state functions as the policy maker for

Islamic matters including waqf.8 In addition, SIRC is appointed to develop policies on

Islamic matters including waqf. The appointment of SIRCs as sole trustees will enable

the waqf assets is being managed and well-administered for the best interest of the

beneficiary and for the needs of the Muslim ummah. It may ensure the waqf assets are

being developed and preserved in accordance with the law. Thus, every waqf shall be

registered in the name of SIRC as proprietor in accordance with the National Land Code

1965 in order to ensure the Council to record and possess a complete database of all

waqf properties in the state. Therefore, all waqf assets should be identified and

registered in the name of the SIRC. For instance, in the case of Ismail Bin Wahab v.

Majlis Agama Islam Melaka & 3 Ors [2008] 25 (1) JH 123, the court ruled that Majlis is

given a power as a trustee to manage, develop, expand, hire and preserve the land, as

well as to collect and distribute the revenue to those who deserve it. In Malaysia, SIRC

is the highest body in the state which has full power and authority on the administration

of waqf assets. This can be demonstrated in the figure below:

8 ibid p.83



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Register

Regulate

Monitor

Manage

Advisory Board

Waqf

Corporation

Majlis

Waqf

Management

Trustees

Trustees Majlis

Majlis

Corporation

Others Productive Waqf

Property

Consumptive Waqf

Property

Figure 1: Organizational Structure of Waqf Institution in Malaysia (Muhammad,

2010)

Among the main responsibilities of the SIRC are as follows:

1. To ensure that all waqf assets vested in them are being administered and applied

in accordance with the terms and conditions set out by the donor.9 All

instruments of the waqf assets, together with their documents of title and any

other relevant documents shall be retained by SIRCs. SIRCs shall take the

necessary steps in registering all waqf assets and funds as well as carrying out

investigations regularly on the well-being of the assets.10

2. To safeguard the waqf assets. Thus, SIRCs may develop and apply specific laws,

rules and procedures to govern the administration and management of waqf

including the administrative and financial aspects.11

3. To develop the waqf assets. A number of SIRCs have established separate

entities to help them in the development of waqf assets.

4. To provide a report of the performance of the waqf management. Each state

enactment provided the requirement to produce relevant financial statements and

accounts mainly for the purpose of auditing and reporting.12

9 Mahamood, S.M. (2006) p.87

10Siraj, S.A. (2012). An Empirical Investigation Into the Accounting, Accountability and Effectiveness of

Waqf Management in the State Islamic Religious Councils (SIRCs) in Malaysia (Doctoral dissertation,

Cardiff University).p. 88 11

Mahamood, S.M. (2006) p.60 12

Siraj,S.A. (2012). p.90



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In Malaysia, SIRC is the legal owner of the waqf property and also known as a corporate

body with the following effects such as separate legal entity, ability to own a property,

ability to sue and be sued, perpetual succession and having a corporate seal. It possesses

legal entity under which the SIRC may enter into several types of contract or agreement

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

property, shift and develop waqf properties according to the rules and regulations.

Section 5 of the Administration of The Religion of Islam (State Of Selangor) Enactment

2003 provides that:

1) The Majlis shall be a body corporate having perpetual succession with a common

seal, and the seal may from time to time be broken, changed, altered and made a

new as the Majlis deems fit, and, until the seal is provided under this section, the

seal of the previous Majlis may be used as the common seal of the Majlis.

2) The Majlis may sue and be sued by its corporate name.

3) The Majlis may enter into contracts and may acquire, purchase, take, hold, and

enjoy movable and immovable property of every description, and subject to any

written law affecting the property, may convey, assign, surrender and yield up,

charge, mortgage, demise, reassign, transfer or otherwise dispose of, or deal with,

any movable or immovable property vested in the Majlis upon such terms as the

Majlis deems fit in accordance with Hukum Syarak.

For instance, the SIRC could engage into al-Wakalah (agency) contract to appoint the

relevant institutions to be the nazir or manager of the project as the project directly

involves with their interest.13

Therefore, the potential project should be prescribed in

details to avoid the factor of al-jahalah (lack of information) that may invalidate the

wakalah contract.14

The contract of agency (al-Wakalah) provides flexibility to the

managing party, but there are legal issues that should be addressed.15

Conversely,

Marican (2003) claims that as the statutory corporation, powers of SIRCs are limited;

the statute governs them. In fact, there are some problems when SIRCs are unable to

manage waqf properties efficiently16

such as lack of understanding concerning the

powers of SIRC, misused of waqf assets and lack of knowledge and management skills

of waqf.17

13

Abdullaah Jalil and Asharaf Mohd Ramli, "Waqf Instruments for Construction contract: An analysis of

structure." The Journal of Muamalat and Islamic Finance Research (JMIFR) 5.1 (2008): 14. p 7 14

ibid p8-9 15

ibid 16

Ibrahim,D.& Ibrahim, H. (2013). Revival of waqf properties in Malaysia. Paper Proceeding of the 5th

Islamic Economics System Conference (iECONS 2013), "Sustainable Development Through The Islamic

Economics System", Organized By Faculty Economics And Muamalat, Universiti Sains Islam Malaysia,

Berjaya Times Square Hotel, Kuala Lumpur, 4-5th September 2013.p.17 17

Mohd Puad.N.A, Jamlus Rafdi. N, and Shahar.W.S.S. (2014) Issues And Challenges Of Waqf

Instrument: A Case Study In MAIS, E-proceedings of the Conference on Management and Muamalah

(CoMM 2014), 26-27 May 2014 Synergizing Knowledge on Management and Muamalah (E-ISBN: 978-

983-3048-92-2) 116. p.144



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WAQF MANAGEMENT UNDER SIRCS

Being as the sole trustee, the SIRC is empowered to appoint any individual or a

committee to assist them in the performance of the duties of the trusteeship of waqf

assets. Thus, several officers or committees have been appointed for such purpose. Siraj

(2012) highlights that there are three types of waqf administrative structure in SIRCs:

1. The establishment of a specific waqf division which take over the overall

administrative aspects of waqf. This administrative setting is only in existed in

the SIRC of Penang. It allows the Waqf Division in the SIRC of Penang to align

its focus and resources, particularly human resources, exclusively for aspects of

waqf.

2. The administrative aspects of waqf along with zakah and baitul mal under the

responsibility of a division. This type of administrative structure has been

adopted by the majority of SIRCs. The administrative matters of waqf are

allocated to a sub-unit of the division governing other resources of SIRCs. For

instance, under the Wakaf Enactment (State of Selangor) 1999, the SIRC of

Selangor shall establish a Wakaf Management Committee to administer and

manage all matters relating to wakaf.18

3. The corporatisation of the baitulmal management.

In Selangor, Negeri Sembilan and Malacca, the laws on waqf are provided under the

Wakaf (State of Selangor) Enactment 1999, Wakaf (State of Negeri Sembilan)

Enactment 2005 and Wakaf (State of Malacca) Enactment 2005. While the other states,

such as Kedah, Perlis, Johor, Pahang, Perak, Sabah, Penang, Terengganu and Kelantan

are governed by the states’ administration of Islamic law. For example, under the

Administration of the Religion of Islam (Federal Territories) Act 1993 there are specific

provisions relating to waqf as contained under Part VI with the heading Financial. Under

this part, the paper will focus on waqf management structure in Selangor which is known

as Wakaf Management Committee. Matters relating to Selangor Wakaf Management

Committee are contained in the Wakaf Enactment (State of Selangor) 1999 and the

relevant provisions are as follows:

18

Section 21 of the Wakaf Enactment (State of Selangor) 1999



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Table 1

PART VII - WAKAF MANAGEMENT COMMITTEE

No Section Provision

1 21 Establishment of the Wakaf Management Committee

2 22 Membership of the Wakaf Management Committee

3 23 Wakaf Management Committee’s meeting

4 24 Powers of Wakaf Management Committee

5 25 Additional powers of the Wakaf Management Committee with

consent of the Majlis

6 26 Expenditure

7 27 Allowance

8 28 Vacation of office

9 29 Revocation of Appointment

10 30 Appointment of new member

11 31 Application of the Second Schedule

Under the Wakaf Enactment (State of Selangor) 1999, the Wakaf Management

Committee is empowered by SIRC to administer and manage all matters relating to waqf

in the state of Selangor. The members of Wakaf Management Committee consist of a

Chairman, the State Legal Adviser or his representative, the state Financial Officer, the

Mufti, the Secretary of the Majlis, the State Director of Land and Mines or his

representative; and four other members.19

Under Section 22(2) of the Enactment, it

provides that: The Registrar of waqf becomes the Secretary of the Committee.20

Furthermore, the Wakaf Management Committee shall have the following powers such

as to carry out any direction, policy and decision made by the Majlis in relation to any

mawquf; to supervise, arrange, manage and administer the mawquf; to develop, improve

and upgrade the mawquf; to administer the Wakaf fund; and to carry out any other

powers of function as provided under this Enactment or as directed by the Majlis from

time to time.21

In addition, the Committte is given additional powers in matters

pertaining to istibdal any mawquf or development and investment of the mawquf with

the consent of the Majlis. 22

Besides that, the appointment of the member may be

19

Section 22 of the Wakaf (State of Selangor) Enactment 1999 20

Section 22(2) of the Wakaf (State of Selangor) Enactment 1999 21


Section 25 of the Wakaf (State of Selangor) Enactment 1999



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revoked by the Majlis in the cases such as conviction of any criminal offence or any

other offence which is punishable with imprisonment; member’s misconduct,

bankruptcy, unable to perform his responsibilities; or absence from three consecutive

meetings without the permission of the Chairman.23

Moreover, the Wakaf Management

Committee shall submit an annual report to Majlis for the previous year before 30th

April of the subsequent year.24

Nevertheless, Mahamood (2006) argues that the arrangement of Wakaf Management

Committee has affected the morale of the officer involved in the management of waqf in

trying to fulfill the overlapping duties and responsibilities. In addition, Marican (2003)

claims that the appointment of the Mufti as a member of the Waqf is highly improper

because there would be a conflict of duty in light of the Mufti’s authority, special role

and function as provided in sections 30 and 31 of the Selangor Administration

Enactment 1989. It is proposed that another person other than the Mufti may be

appointed as a Member of Wakaf Management Committee in order to avoid such

conflict of duty and the Majlis can obtain some experts in the relevant field to assist

them in the waqf management.25

Thus, there is a need for Majlis to promote a career

opportunity available in Waqf field consists of various experts and professionals such as

civil engineers, architect and quantity surveyor as part of their bodies which can assist

and facilitate Majlis in managing waqf properties.26

THE APPOINTMENT, RIGHTS AND DUTIES OF MUTAWALLI AND NAZIR

In Islamic law, manager of a waqf is usually known as mutawalli, nazir and qayyim.

Ashshub (2000) states that all these terms imply the same meaning except both

mutawalli or nazir appointed by the same donor in the same document. A person who is

appointed to manage a waqf property as a trustee is known as “al-Mutawalli”.27

Al-

Mutawalli can be an individual, organization, or corporate body which holds the

capacity, trust and ability to execute what is intended by a donor (waqif).28

Traditionally,

the waqf donor would himself act as mutawalli or he has powers to appoint anyone to

manage and administer the waqf assets to the best interest of the beneficiaries. Even

though mutawalli or nazir is a trustee, he is not a legal owner of the waqf assets and

cannot use the assets for his own benefits or interest. Nevertheless, the power of

mutawalli is not as much as a trustee under English law.29

Siraj (2012) views that the

appointment of mutawalli has to be documented in a waqf deed called waqfiyya30

which

23


Section 31 of the Wakaf (State of Selangor) Enactment 1999 ( Second Schedule) 25

Marican (2003) p.56 26

Mohd Puad. N.A, Jamlus Rafdi.N, and Shahar.W.S.S. (2014) p.125 27

Al-Baghdadi, Abu Muhammad Ghanim b. Muhammad (1999). Majma’ al-Damanat fi Madhab al-Imam

al-A’zam Abi Hanifah al-Nu’man, jld.2, Dar al-Salam. p.687 28

Al-Haskafi, Muhammad ‘Ala’ al-Din (t.t). Sharh al-Durr al-Mukhtar, jld. 2, Kaherah : Matba’ahSabih

wa Awladihi.p.584 29

Marican,P (2003) p.51 30

waqfiyya is a declaration or deed for a pious endowment.



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expressly mention the objectives for which waqf is created, the duty and responsibilities

of the mutawalli and compensation for the mutawalli for his duty and effort in

administering the waqf property. Thus, mutawalli is obliged to perform certain duties

according to the terms and stipulations included in the waqf deed. A mutawalli should

fulfill certain requirements such as Muslim, adult, sound mind, honour, trustworthy and

capable of carrying out his duties as an administrator or manager according to the

purposes prescribed in the waqf.

Moreover, it is stated that mutawalli has responsibilities as follows:

1. To manage the waqf property in accordance with the terms and conditions laid

down by the donor (waqif).

2. To carry out the instructions of the donor (waqif)

3. To safeguard and protect the waqf property.

4. To maintain the waqf assets in good conditions, collect its revenues and

distribute them to the beneficiaries.31

5. To do all the acts which are necessary for the maintenance, management and

development of the waqf property.32

According to Muslim jurists, there are several negative duties imposed on mutawalli or

nazir and they are prohibited from doing anything that is contrary to the interest of waqf.

These are:33

1. To avoid dealing in waqf that gives raise to the suspicion that he or his relation

has profited from the deal (conflict of interest).

2. To avoid borrowing against waqf property which is payable from the capital of

waqf except when it is necessary.

3. Not to charge a waqf property.

4. Not to loan a waqf property except for the beneficiaries.

5. Not to reside in a waqf property without paying rental to the waqf .

6. Not to change the conditions of the donor for the enforcement of the a waqf

declaration, unless permitted by the court.

7. Not to sell or substitute the a waqf property without the court’s permission.

Legally speaking, mutawalli has to exercise his duty of care34

and diligence and owes a

fiduciary duty to waqf and beneficiaries. A mutawalli should act within reasonable care

31

Saleem, M. Y. (2009). Towards Institutional Mutawallis for the Management of Waqf Properties. In:

International Conference on Waqf Laws and Management, 20-22 October 2009, International Islamic

University Malaysia. (Unpublished) p.3 32

ibid 33

Mohammad, M. T. S., Iman, M., & Hamid, A. (2014). Waqf Property: Concept, Management,

Development and Financing. Penerbit UTM Press:Johor Bahru.p.25 34

In English tort law, a duty of care is a legal obligation which is imposed on a person toward others and

the public with the attention, caution and prudence that a reasonable man in the circumstances would use.

If a person's actions do not meet this standard of care, then the acts are considered negligent, and any

damages resulting may be claimed in a lawsuit for negligence. The principle is known as the

https://en.wikipedia.org/wiki/Tort

https://en.wikipedia.org/wiki/Law

https://en.wikipedia.org/wiki/Law_of_obligations



(IDMAC2015) 355

and diligence and honesty, bona fide and in good faith for the interest of waqf and the

beneficiaries.35

Thus, a mutawalli may breach of his duty if he failed to exercise his duty

of care such as using waqf property for personal interest, committing fraud, negligent in

performing his duties, failed to maintain proper records relating to waqf, misuse or

misappropriation of waqf property and many more. According to classical fiqh rules,

Shari’ah court has the responsibility to supervise the administration of waqf property

and upon a complaint lodged by the beneficiaries the court can remove mutawalli if he is

proven to be unsuitable for the job or is guilty of mismanagement or neglect his duties.36

Under Islamic law, mutawallis can be removed for negligence, misconduct or breach of

trust if their wrongs are proven. Thus, the power of qadi to remove the mutawalli would

only be effective in the context of a natural person acting as mutawalli.37

However, in

this context in Malaysia, there is no provision in the statute states for the removal of the

SIRC or Majlis as a mutawalli or trustee.38

In Malaysia, there are no specific laws or regulations which govern the rights and duties

of mutawallis as trustees in waqf matters. In fact, there is no express provision either in

the Federal Constitution or in the Court of Judicature Act 1964 which give powers to the

civil courts the jurisdiction to try on waqf cases.39

According to the courts, waqf is

regarded as one type of trusts which is subject to the Trustee Act 1949, and falls under

the jurisdiction of the civil courts. This has been held in the case of Ashabee & Ors v

Mahomed Hashim & Ors [1887] 4 Ky 213, read together with section 2 of the Trustees

Act 1949 and section 23(1) of the Court of Judicature Act 1964 it was held that the

validity of a waqf must be decided according to English law and it falls within the ambit

of the High courts.40

However, section 4(2) of the National Land Code 1965 provides

that:

Except in so far as it is expressly provided to the contrary, nothing in this Act shall

affect the provisions of- (e) any law for the time being in force relating to wakaf or bait-

ul-mal;

It means that waqf matters fall under the state jurisdiction and the governing law are the

provisions contained in the Administration of Muslim Law enactments or rules made

there under or the state waqf enactments.41

In fact, all the state enactments on the

administration of Muslim law in Malaysia have excluded the concept of ‘trust’ under the

neighbourhood principle and it was laid down in the landmark case of Donoghue v Stevenson [1932] AC

562. In the case a woman successfully proved that a manufacturer of ginger beer owed a duty of care,

where the production of the ginger beer was negligently produced. 35

Mohammad, M. T. S., Iman, M., & Hamid, A. (2014).p.25 36

Saleem, M. Y. (2009).p.4 37

Marican (2003) p.62 38

ibid 39

Kader, S. A., Zubaidah, S., Dahlan, M., & Hilal, N. (2009) p.8 40

Ibid. p.9 41

Kader, S. A., Zubaidah (2014), Legal and Administrative Challenges in The Development of Waqf in

Malaysia, paper presented on 19th December 2014 during the ICWR Monthly Waqf Talk Series No. 2 at

Ahmad Ibrahim Kulliyyah of Laws, IIUM.p.5



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Trustee Act 1949 from the definition of waqf and there is an obvious separation between

the concepts of waqf and trust in Malaysia hence correcting the confusion created by

judicial decisions in the earlier case.42

In fact, some authors argued that trust law should

be regulated by the Syariah Law and not Civil Law because trust law had always been

regulated under waqf by Muslims. According to Ahmad Ibrahim, section 2 of the

Trustee Act 1949 should be amended whereby the definition of courts therein should

also include the Shar’iah court. It is also suggested that word waqf should be exempted

from the definition of ‘trust’ in the said Act, similar to that of section 4 of the National

Land Code 1965 which excludes waqf from its purview, allowing it to be governed by

Shar’iah law.43

Thus, Shar’iah courts should be granted more exclusive power to try and

solve cases on waqf and Muslim judges who are experts in Islamic jurisprudence should

be allowed to hear any disputes related to waqf.44

There are several initiatives or measures taken by the government to overcome this

problem such as an introduction of corporate waqf. The establishment of corporate waqf

is expected to solve several issues pertaining to waqf management such as management

negligence, flaws and ineffectiveness.45

One of the good examples is Waqaf An-Nur

Corporation Berhad or (WANCorp) whereby Johor Islamic Religious Council has

appointed WANCorp to act as a special nazir to manage waqf shares and assets. In

addition, there was an issuance of Manual for Management of Waqf Land (Manual

Pengurusan Tanah Wakaf) in 2006 by the Department of Wakaf, Zakat and Hajj

(JAWHAR). The manual is issued due to several administrative and procedural

problems incurred to the existing framework amongst the states.46

The objectives of the

Manual are to provide standard guidelines, precise and transparent data of waqf lands

and to inculcate professionalism in the management of waqf lands.47

Nevertheless, the

effectiveness of the Manual has not been proven yet since it was implemented in 2006

because most of the states still not adopting it and the reasons are unknown.48

Besides

that, Mohd Ali et al (2015) claims that Majlis Agama Islam Negeri Sembilan (MAINS)

also contributed to this problem, where they already had Waqf Enactment since 2005 but

have not yet enforce the enactment in their administrative duties.

Muhammad (2010) suggests that the SIRC or Majlis should have mainly regulatory and

supervisory powers such as registering, regulating, and monitoring the administration

42

Ibid. p.7 43

Ahmad Ibrahim, Undang-Undang Islam dan Undang-Undang Barat: Satu Perbandingan, JH(1410) H

Jilid VI Bhg. II p. 213. 44

Ismail, C. Z., Salim, N. J., & Hanafiah, N. J. A. (2015). Administration and Management of Waqf Land

in Malaysia: Issues and Solutions. Mediterranean Journal of Social Sciences, 6(4 S2). pp.618 45

Ibrahim,D & Ibrahim,H. (2013). The Revitalization of Islamic Trust Institution through Corporate

Waqf. In 4th International Conference on Business and Economic Research Proceedings. p.198 46

ibid p.14 47

ibid 48

Mohd Ali, N, Rahman, M., Ahmad, R., & Mahdzan, N. S. A. Necessity of Effective and Efficient

Business Model for Development of Waqf Lands in Malaysia. (2015) Proceedings of the Muktamar Waqf

Iqlimi II 2015, The 2nd Asean Waqf Seminar 2015,“Enhancing Social Enterprise And Islamic

Philanthropy Through Ijtima’i And Waqf”.p.359



(IDMAC2015) 357

and management of waqf properties including those under its management and

administration. One of the suggestions for improvement is the SIRC should exercise

their powers to regulate and introduce rules on waqf without having to enact the new law

as that will take a longer process. Otherwise, the Land Administrator should take heed of

any direction received from SIRC on waqf land and a Standard Operating Procedures

(SOP) is needed to expedite the whole process.49

In fact, it was proposed that waqf

administrator should be included in section 43 of the National Land Code 1965 to be

among the persons who can deal with waqf land. Thus, as the sole trustee and registered

owner of the waqf land for waqf, the SIRC should be clearly mentioned as a person

entitled to deal with land.50

Besides that, some authors proposed that a manual of waqf should be implemented with

objectives of (i) to provide a standard guideline to all the mutawwali, by focusing in the

aspect of registration and administration of the waqf properties, (ii) to provide a precise,

quick and adequate information to the community about how to manage the waqf

properties and (iii) to improve and increase the efficiency and effectiveness of

management of the waqf properties.51

In addition, there were some recommendations to

set up the principles of good governance (to act in good faith and without neglect and

exercise due skill and care) for waqf which will ensure that waqf practices and

procedures are in line with its objective.52

The principles of good governance will help

mutawalli or nazir to focus on the expectation of the beneficiaries and the fulfillment of

shariah compliances.53

In consequence, if there is a breach of duty by the mutawalli, he

can be sued in the court of law for willful or negligent mismanagement of waqf

properties. Mohammad (2013) proposed that by applying the concept of legal

personality the administrators, managers or institutions in charge of waqf properties can

be treated as the mutawalli or nazir who owe a duty to the waqf entity alone. As shown

in Figure 1, an umbrella organisation consisting all or a group of individual waqf entities

should be responsible for the management of waqf properties.

CONCLUSION

Based on the above situations a study is needed in order determine the rights and duties

of mutawalli and nazir as trustees in the administration of the Muslims’ estate

particularly waqf. Hence, with specific rules and regulations relating to this matter it will

improve the roles and responsibilities of mutawallis and will curb the problems such

mismanagement and misuse of waqf property. With the implementation of the

49

Mohamad, N. A., Kader, S. A., Zubaidah, S., & Ali, Z. (2012). Waqf Lands and Challenges from the

Legal Perspectives in Malaysia. In: IIUM-Toyo University Joint Symposium Sustainable Build

Environment: Lessons Learned from Malaysia and Japan , 15th November 2012, Toyo University, Tokyo

Japan. (Unpublished) p.5 50

ibid 51

Mohd Puad. N.A, Jamlus Rafdi.N, and Shahar.W.S.S. (2014) p.125 52

Mohammad, M. T. S., Iman, M., & Hamid, A. (2014) p.8 53

Ihsan, H. (2012) p.78



(IDMAC2015) 358

comprehensive legal framework for waqf institution, it will create awareness and

understanding among the Muslim society in Malaysia on the importance of trust or

amanah in waqf management and administration. Moreover, as the sole trustee, SIRCs

should play the greater role as an efficient, skillful and professional administrator in

managing the waqf assets properly and systematic.

REFERENCES

Al-Baghdadi, Abu Muhammad Ghanim b. Muhammad (1999). Majma’ al-Damanat fi

Madhab al-Imam al-A’zam Abi Hanifah al-Nu’man, jld.2, Dar al-Salam.

Al-Haskafi, Muhammad ‘Ala’ al-Din (t.t). Sharh al-Durr al-Mukhtar, jld. 2, Kaherah :

Matba’ah Sabih wa Awladihi.

Mohd Ali, N., Rahman, M., Ahmad, R., & Mahdzan, N. S. A. (2015). Necessity of

Effective and Efficient Business Model for Development of Waqf Lands in

Malaysia. Proceedings of the Muktamar Waqf Iqlimi II 2015, The 2nd Asean

Waqf Seminar 2015, “Enhancing Social Enterprise and Islamic Philanthropy

Through Ijtima’i And Waqf”.p.351-364

Al-Sarakhsi, Shams al-Din (1986). al-Mabsut, vol.12. Beirut: Dar al-Ma’rifah.

Ashshub Abdul Jalil Abdul Rahman (2000). Kitab al-Waqf. Cairo: Dar al-Afaq al-

Arabiyyah.

Hasan, Z. and Abdullah, M.N. (2008). The Investment of Waqf Land as an Instrument of

Muslims’ Economic Development In Malaysia. (A paper presented at the Dubai

International Conference on Endowments’ Investment, 4-6th February 2008) pp.

1-25

Harun, F. M., Possumah, B. T., Shafiai, M. H. B. M., & Noor, A. H. M. (2014).

Empowering Higher Education Institution: The Role of Waqf-Malaysian

Perspective. Proceedings of the Australian Academy of Business and Social

Sciences Conference 2014 (in partnership with The Journal of Developing Areas)

ISBN 978-0-9925622-0-5. p.1-13

Ibrahim, A. Undang-Undang Islam dan Undang-Undang Barat: Satu Perbandingan,

JH(1410) H Jilid VI Bhg. II

Ibrahim, D & Ibrahim, H. (2013). The Revitalization of Islamic Trust Institution

Through Corporate Waqf. In 4th International Conference on Business and

Economic Research Proceedings. pp192-202

Ibrahim, D & Ibrahim, H. (2013). Revival of Waqf Properties in Malaysia. Paper

Proceeding of the 5th Islamic Economics System Conference (iECONS 2013),

"Sustainable Development Through The Islamic Economics System", Organized

By Faculty Economics And Muamalat, Universiti Sains Islam Malaysia, Berjaya

Times Square Hotel, Kuala Lumpur, 4-5th September 2013. pp 13-24

Ihsan, H., Ayedh, A. M., & Ibrahim, S. H. M. (2006). Towards the betterment

management and transparency of waqf institutions: lessons from the charity

commission. Al Risalah, 6, pp. 27-46.



(IDMAC2015) 359

Ismail, C. Z., Salim, N. J., & Hanafiah, N. J. A. (2015). Administration and Management

of Waqf Land in Malaysia: Issues and Solutions. Mediterranean Journal of

Social Sciences, 6(4 S2), 613.

Jalil, and Mohd Ramli, A.(2008). "Waqf Instruments for Construction contract: An

analysis of structure." The Journal of Muamalat and Islamic Finance Research

(JMIFR) 5.1: 14.

Karim, S. B. A. (2010). Contemporary Shari’a Compliance Structuring for the

Development and Management of Waqf Assets in Singapore. Kyoto Bulletin of

Islamic Area Studies, 3(2), pp143-164.

Kader, S. A., Zubaidah, S., Dahlan, M., & Hilal, N. (2009). Current legal issues

concerning awqaf in Malaysia. In: International Conference on "Waqf Laws &

Management: Reality and Prospects", 20-22 Oktober 2009, Cultural Activity

Centre (CAC), International Islamic University Malaysia, Gombak Campus.

(Unpublished) pp 1-24

Kader, S. A., Zubaidah (2014), Legal and Administrative Challenges in The

Development of Waqf in Malaysia, paper presented on 19th December 2014

during the ICWR Monthly Waqf Talk Series No. 2 at Ahmad Ibrahim Kulliyyah

of Laws, IIUM.p.5

Kahf.M (1992). Waqf and Its Sociopolitical Aspects. IRTI: Jeddah, Saudi Arabia.

Mahamood, S. M. (2006). Waqf in Malaysia: Legal and administrative perspectives.

First ed. Kuala Lumpur: University Malaysia Press.

Marican, P, (2003). Towards A Codification of Waqf Law in Malaysia: The Selangor

Waqf Enactment of 1999, IKIM Law Journal, Vol 7, No 1.pp 39-67

Mohammad, M. T. S. H. (2013), A proposal for a new comprehensive Waqf law in

Malaysia, Retrieved from http://waqfacademy.org/wp-

content/uploads/2013/03/Mohammad-Tahir-Sabit-Haji-Mohammad.-Date.-

Proposal-for-new-comprehensive-waqf-law-in Malaysia.pdf Retrieved on on 22

August 2015.

Mohamad, N. A., Kader, S. A., Zubaidah, S., & Ali, Z. (2012). Waqf Lands and

Challenges from the Legal Perspectives in Malaysia. In: IIUM-Toyo University

Joint Symposium Sustainable Build Environment: Lessons Learned from

Malaysia and Japan , 15th November 2012, Toyo University, Tokyo Japan.

(Unpublished) pp 1-9

Mohammad, M. T. S., Iman, M., & Hamid, A. (2014). Waqf Property:

Concept,Management, Development and Financing. Penerbit UTM Press: Johor

Bahru

Mohd Puad. N.A, Jamlus Rafdi.N, and Shahar.W.S.S. (2014) Issues and Challenges of

Waqf Instrument: A Case Study in MAIS, e-proceedings of the Conference on

Management and Muamalah (CoMM 2014), 26-27 May 2014 Synergizing

Knowledge on Management and Muamalah (E-ISBN: 978-983-3048-92-2) 116.

pp 116-127

Rashid, S.K (2012), Measures for the Better Management of Awqa, (2012) 20 IIUMLJ

103.



(IDMAC2015) 360

Saleem, M. Y. (2009). Towards Institutional Mutawallis for the Management of Waqf

Properties. Paper presented at the International Conference on Waqf Laws and

Management, 20-22 October 2009, International Islamic University Malaysia.

Siraj, S. A. (2012). An Empirical Investigation into The Accounting, Accountability and

Effectiveness of Waqf Management in The State Islamic Religious Councils

(SIRCs) In Malaysia (Doctoral dissertation, Cardiff University).pp 1-414

Presentations & Public Speaking

Siti Aishah Hassan & Rusnadewi Abdul Rashid