The International Conference on Islamic Leadership and Management 2016, Universiti Islam Sultan Sharif Ali, Brunei

The Contemporary Model of Waqf Structure

Mohamad Isa Abd Jalil1 , Sofri Yahya2 , Anwar Allah Pitchay3
1 Graduate School of Business
Universiti Sains Malaysia, Penang, Malaysia
Email: miaj14_gsb063@student.usm.my
2 Graduate School of Business
Universiti Sains Malaysia, Penang, Malaysia
Email: sofri@usm.my
3 School of Management
Universiti Sains Malaysia, Penang, Malaysia
Email: anwarap@usm.my

ABSTRACT

The rapid expansion of the Islamic finance industry entailed an analogous growth of Waqf
industry. The Waqf industry has grown at a fast pace by diversifying into cash Waqf, share
Waqf, wakalah Waqf, cooperative Waqf, and even hybrid Waqf. Given its immense
contributions to the Muslim Ummah, there is the need for sustained waqf practice in the
world, particularly in Muslim countries. Besides, the benefits derived from Waqf are also
enjoyed by the non-Muslim community. Therefore, the proper understanding of the Waqf
system is vital to attaining the sustainability of Waqf. However, there remains no all-
inclusive, and contemporary model of Waqf structure in literature. Thus, the aim of this study
is to conceptualize and elucidate a comprehensive model of Waqf structure, taking into
account the pillars of Waqf and the role of Mutawalli (trustee). This study used the reports
and deductions from previous related studies as main sources. Based on the repertoire of
information compiled and concisely analyzed, this paper suggested plausible
recommendations for the sustained growth of the Waqf industry.

Keywords: waqf, commitment, trust, information disclosure, communication, payment

method.

___________________________________________________________________________
1 Introduction
The entire wealth, asset and natural resources in the earth belong to Allah and can be
exploited by humans via economic activities in order to satisfy their needs. Naturally, people
obtain wages, rent, and profit when they are involved directly with an economic activity. In
contrast, people who indirectly involved with an economic activity will likely acquire
property in forms of hibah, zakah, sadaqah, inheritance and waqf.
Charity is a major obligation in Islam (Lambarraa & Riener, 2012). Numerous
evidences can be found in the Quran and Hadith that elucidate the significance of giving. For
example Chapter 2 (Surah al-Baqarah) of the Quran, verse 215, reads: “They ask thee What
they should spend (In charity). Say: Whatever Ye spend that is good, Is for parents and
kindred And Orphans And those in wanting And for wayfarers. And whatever ye do That is
good-Allah Knoweth it well”. Evidence from hadith regarding giving in Islam can be found in
Volume 1, Book 2, Number 7 of Sahih Bukhari; Narrated Ibn 'Umar: “Allah's Apostle said:
Islam is based on (the following) five (principles): to testify that none has the right to be
worshiped but Allah, and Muhammad is Allah's Apostle; to offer the (compulsory
congregational) prayers dutifully and perfectly; to pay Zakat (i.e. obligatory charity); to
perform Hajj (i.e. Pilgrimage to Mecca); and to observe fast during the month of Ramadan”.
There are several categories of charity in Islam, each with different implementation
circumstances, but with a shared purpose. The concept of voluntary charity allocation in
Islam consists of different aspects. Firstly, Sadaqah is a concept of giving only to the
underprivileged and poor (Al-Zuhayli, 1997). Secondly, Hibah is an inclusive notion of
giving to everyone, including the affluent and non-Muslims (Muda, 2008). Thirdly, Waqf is
the concept of dedicating any property for posterity from which its profit may be used for any
charitable intention (Dahlan, Yaa’kub, Hamid, & Palil, 2014). Finally, Al-Wasiyyah (last
will) is a gift of property that arises from the death of a testator (Muda, 2008).
Muslims in Malaysia have practiced the Waqf since the inception of Islam in
Malaysia (Siti Mashitoh Mahamood, 2006). Waqf is pledged under the State List of the
Federal Constitution 1957. The traditional management of Waqf was granted to the State
Islamic Religious Councils (SIRC) in 1952 (Mohamad, S.A. Kader, & Ali, 2012). Up till
now, SIRC remains the official sole trustee of Waqf in Malaysia. Since every state has their
explicit rules and regulation, the Federal government of Malaysia has endeavoured to liaise
with every country by creating JAWHAR in 2004 (Jabatan Arkib Negara, 2012). Waqf
comprises two categories; Waqf Khairi (welfare) and Waqf Zurri (family) (Mughniyah,
1964). Waqf Khairi can be sub-categorized into Waqf Am (general purposes) and Waqf Khas
(specific purposes) (Borham, 2011). Siti Mashitoh Mahamood (2007) reported that the
majority of Waqf properties in Malaysia are mosques and obituaries. The other forms of
Waqf in Malaysia are diverse mixtures of Islamic schools, prayer rooms, arable lands,
unoccupied lands, buildings, cash, company shares, and corporate services, takaful and health
care centres.
Furthermore, waqf entails the areas of poverty aid programs (Masoud Ahmad, 2015;
Pramanik et al., 2015; Raimi, Patel, & Adelopo, 2014; Shirazi, 2014), education support
projects (Mahadi Ahmad & Hassan, 2015; Khan, 2015; Siti Mashitah Mahamood & Rahman,
2015; Ramli, Hashim, Dahalan, Ismon, & Romli, 2015), health care service improvement
(Htay, Salman, & Soe Myint, 2014; Khan, 2015; Rahman, 2009), sustainability of Islam (Jalil
& Ramli, 2008; Wan Yon, Abdul Latif, & Bahrom, 2008), national debt relief (Ambrose,
Aslam, & Hanafi, 2015; H. Ibrahim, Amir, & Masron, 2013), and fiscal development
(Ahmed, Mustafa, & Ogunbado, 2015; Ali, 2009; Ambrose et al., 2015; H. Ibrahim et al.,
2013; Mohamad Suhaimi, Ab Rahman, & Marican, 2014). Based on its contributions to the
Muslim Ummah, there is the need to ensure the continuity of waqf, particularly in Malaysia.
Moreover, the gains from Waqf are also benefited from by the non-Muslim community.
Therefore, a model of Waqf structure that elucidates the process of Waqf and its
characteristics should be developed. The model will aid the public to better comprehend
Waqf and ensure it is effectively and systematically practiced. Public understanding
regarding the Waqf will enhance the performance of waqf.

2 The Concept of charity in Islam

There are two forms of charity in Islam (Lambarraa & Riener, 2012): a mandatory form
called Zakah, which works comparable to a redistributive tax system, while Islahi (1992) has
listed Sadaqah, Hibah @ Hadiyah, Wasiyah, Qard al Hassan, Nazar, Waqf, and Takaful as
forms of voluntary giving in Islam. However, this paper excludes Qard al Hassan since it is
an interest free loan and not real charity.

2.1 Zakah
In Arabic linguistics, zakah is the infinite form of the verb zakah, meaning “to grow, to
purify and to increase” (Bello, 2009). Zakah is the third pillar of Islam and, the term zakat is
referred to approximately 70 times in conjunction with salat (prayers) in the Al-Quran (Htay
et al., 2014). It is mandatory for all Muslims who have the financial resources (nisab) to fulfil
this obligation (Nik Mustapha, 1987). Zakah can be offered in the forms of cash and kind,
depending on the category of zakah. However, not all properties are subject to zakah, such as
proceeds from exploiting waqf assets, jewelry excluding gold and silver, and farm animals
besides camel, cow, and sheep. As pointed out by Sarea (2012), zakah is an obligation
relating to funds paid for a specified type of purpose and particular categories.
The zakah obligation is fully dependent on nisab. According to Islamic jurisprudence,
nisab is the minimum amount of wealth or property owned by a Muslim before he/she is
obligated to pay zakah. Thus, nisab is a measurement that determines the obligation of paying
zakat (Powell, 2010). For an example, if a person owns five camels (nisab) for a period of
one year (haul), he/she is required to pay zakah of one-year-old goat.
The payment of zakah has been rationalized in several studies. Htay et al., (2014)
asserted that the fundamental goal of zakah is to attain socio-economic justice. As regards the
economic dimensions, zakah is intended to accomplish the positive effects on a range of
aspects comprising savings, aggregate consumption, investment, aggregate supply of labour
and capital, poverty reduction and economic expansion (Wahab & Rahim Abdul Rahman,
2011). In the Quran (Surah Al-Taubah, Verse: 60), zakah is pointed out as an obligation of
religious, thus the wealth amassed from Zakah must be expended for the specifically
classified benefits. Al Qaradawi (2008) listed eight categories of beneficiaries of zakat: the
poor (Fuqara), the needy (Miskeen), managers and caretakers of zakah (Amil), sympathizers
(Muallaf-at-Quloobuhum), free slaves (Riqab, debtors (Gharimin), for the cause of God
(Fisabillillah), and travelers stranded on a journey (Ibnus Sabil).

2.2 Sadaqah
Sadaqah is an Arabic word for alms giving by means of a gift from a Muslim to other
people, instinctively and voluntarily, without being constrained by time or by a specific
amount. Sadaqah can also be defined as a gift given by a person as good hope for the love
and reward from Allah alone. The concept of Sadaqah is generally the sincere giving of
charity only to the underprivileged and deprived, without expecting any recompense, as
chapter 2 (Surah Al-Baqarah), verse 271 of the Quran reads;“If you disclose your charitable
expenditures, they are good; but if you conceal them and give them to the poor, it is better for
you, and He will remove from you some of your misdeeds [thereby]. And Allah, with what
you do, is [fully] acquainted.”
2.3 Hibah/hadiyyah
The notion of hibah is very similar to sadaqah, although hibah is given to everyone including
the rich in order to nurture better relationships between people. In contrast, the aim of
sadaqah is to assist the beneficiaries. This concept is evident in the hadith, where Azra bin
Thabit Al-Ansari narrated in the book of Sahih Bukhari; “When I went to Thumama bin
'Abdullah, he gave me some perfume and said that Anas would not reject the gifts of perfume.
Anas said: The Prophet used not to reject the gifts of perfume”.

2.4 Nazar
Nazar is a pledge or dedication to acquire wealth in a specific regard or to escape a
tribulation. The vow must be of moral deeds or religious or humanitarian services (Islahi,
1992). Nazar is a charity that begins with voluntary commitment but performed as an
obligation. Whenever a person orally or literally makes a vow to perform a nazar, he or she is
obliged to fulfil it.

2.5 Takaful
“Takaful” originates from the Arabic word “Kafala” which means to guarantee, guard
and protect (Mohd Shril et al., 2012). According to Takaful Brunei Darussalam (2011),
takaful works more like a cooperative where all partakers contribute their shares of payments
into a fund and mutually agree to compensate members during times of need or peril. Some
Muslim communities in Johor, Malaysia practice takaful (khairat kematian), where a
mutually fixed amount is given to bereaved families. Currently, takaful plays a critical role by
replacing the conventional insurance, which is non-compliant to sharia.

2.6 Wasiyah and faraid

Wasiyah (a will in the legacy) is generally for relatives who are not getting a share in a
legacy or some public incentives (Islahi, 1992). Muslims have the obligatory duty to observe
wasiyah as prescribed by Allah in Al-Quran (Surah Al-Baqarah: 180). According to Shafii,
Yusoff, & Noh, (2013), wasiyyah in Islam is not only perceived as a part of Ibadah, but as a
social responsibility since it indirectly supports the socio-economic state of a community
through sadaqah jariyyah. Faraid on the other hand is an allocation that has been specified
under Islamic sharia to the inheritors. The fiqh of faraid explains that a person is allowed to
know the percentage that he or she entitled from the estate of a deceased. Wasiyah is not
meant for heirs and the amount depends on the giver as long as it does not exceed one-third
of his/her total wealth.

2.7 Waqf
Based on the opinion of Imam Abu Hanifa, waqf can be defined as the restriction of a
particular property in the possession of the contributor (waqif) and dedicating its benefits or
usufruct to aid the underprivileged and penurious or other pious purposes (H. Ibrahim et al.,
2013). Waqf is also explained as an action of conserving some property for a specific charity
that prohibits any use of it outside the specific purpose (Kahf, 1998). In another study,
Toraman, Tuncsiper, & Yilmaz (2007) concluded that waqf relates to non-perishable
property, the benefit of which can be extracted without consuming the property itself.

Waqf is the act of preserving certain assets for the sake of the Muslim community
(Kahf, 1998). Waqf is an endowment that covers vital features such as declaration of
intention, contributors, the properties and beneficiaries. The major distinguishing features of
waqf are irrevocability, perpetuity, and inalienability (Mohamad Tahir Sabit Mohammad &
Mar Iman, 2006). Property/money provided as waqf ceases to belong to the contributing
individual or organization. Waqf cannot be transferred to anyone, inherited or put up for sale,
since it is considered to belong to Allah (SWT) (Man & Abdulwaheed A., 2011). However,
waqf properties such as land can be sold under the Istibdal law (replaced with another land)
(Hamat, 2014). In the case of cash waqf, the rules of perpetuity does not refer to its
physicality but rather its benefit (Mohammad Tahir Sabit Mohammad, 2009). Therefore, the
cash waqf can be invested as long as the dividend or profits will be perpetual.

3 The Contemporary Model of Waqf Structure

The structure of waqf (as shown in figure 1) comprehensively elucidates the the waqf
structure. From figure 1, waqf consists of four pillar: waqif (donor), mauquf (asset/property),
mauquf ‘alaih (beneficiary) & Sighah (declaration). Waqf will be invalid if one of these
pillars is missing. The model also shows the significant position of mutawalli in Waqf,
despite the fact it is not one of the Waqf pillars. The presence of mutawalli is vital since the
waqif has relinquished the ownership status of the property to Allah. Thus, the mutawalli
appointed by waqif will be entirely responsible for making certain the waqf property is
properly managed in line with what it is intended for as well as adhere to sharia principles.
 There are two issues associated with mauquf (asset/property): their characteristics and
kind of object. The Mauquf ‘alaih (beneficiaries) depends on the purposes of Waqf as
specified in the sighah (declaration). The Waqif is also compelled to declare the timing and
classification of the Waqf. In general, the process of Waqf is a simple one, i.e. when a person
or organization owns a valuable asset, he/she/they simply declare(s) verbally or orally that
he/she/they intend(s) to offer this asset as waqf. The asset is automatically treated as a
mauquf under sharia law, and no longer belongs to waqif. In the declaration, waqif must state
the beneficiaries, timing and classification.

3.1 The Pillars of Waqf

In Islam, the jurisprudence of religion (Fiqh) involves how to perform Solah; what
amount to pay for pay Zakah; when to begin fasting; how to perform Hajj, and so on.
Determining the laws contained within the Fiqh requires knowledge of Usul al-Fiqh
(Principles of Islamic Jurisprudence). According to Kamali (2005), every ibadah (worship) in
Islam, such as waqf, must have a pillar. If the pillar is absent, then the ibadah is practically
null and void (Kamali, 2005).
The pillar of waqf comprises 4 principles: waqif (the donor/founder), mauquf
(corpus), sighah (contract), and mauquf ‘alaih (beneficiaries). All the principles must be
stated clearly before the waqf is considered valid. Waqif is the person who declares his/her
assets for waqf purpose (Pitchay, 2015). The waqif must be mature and sane, free and
qualified to donate his/her properties and uninhibited to give away his/her belongings (D.
Ibrahim & Ibrahim, 2013). These conditions are consistent with the report by Pitchay (2015),
where he stated similar conditions, such as the donor must be physically and mentally sane
when he/she declares, mature and not a slave (free man). Afterwards, the person also should
have unhindered ownership of the assets to be donated for Waqf (Gaudiosi, 1988).
Mauquf (corpus) is an Arabic word for donated property. According to Mashitoh
(2006), the corpus must be entirely owned by the donor before he/she contributes it and
he/she understands that his/her has to relinquish responsibility of the assets since ownership
is transferred to Allah (SWT). Once the mauquf is given to the waqf, the role of the donor
toward his/her assets becomes inactive, and a manager or trustee of the Waqf property will
take over responsibility to utilize the property in line with the donor intentions. Malaysian
Waqf Foundation, a foundation under the federal government, established four conditions of
mauquf, which require strict compliance, namely; (1) benefits can be derived from the
mawquf, (2) the mawquf must have a price value, (3) the founder must completely own the
mawquf, and (4) the mawquf does not breach Shari’ah principles (Ambrose et al., 2015).
The International Conference on Islamic Leadership and Management 2016, Universiti Islam Sultan Sharif Ali, Brunei

Figure 1: The Structure of Waqf

Source: Self-developed
The International Conference on Islamic Leadership and Management 2016, Universiti Islam Sultan Sharif Ali, Brunei

As revealed in Surah Al-Baqarah, verse 182 of the Quran, Islam vehemently

emphasizes on formal agreement in all business transactions, even if the parties involved are
siblings or couples. Similarly, the Waqf requires a sighah (contract) that states the parties,
objective, and corpus involved. According to Pitchay (2015), the donor has to stipulate
his/her intention or objective, and whether the donated assets are for a specific purpose or a
general waqf. The contract is normally prepared in writing (orally declaration is also
allowed), to avoid disagreements or misunderstandings in the future and also for record
purposes. The official website of Malaysian Waqf Foundation discloses that the sighah is a
waqf statement made either orally, in writing with words or gestures. An example of sighah
normally employed is “I donate my land as a waqf for the sake of helping needy”. It can be
inferred from this declaration that the waqif wants to confer his/her land as waqf and not
normal charity. If the statement excludes the word “waqf”, the donation might be deemed
normal sadaqa.
The statement of objective of the waqf (mauquf ‘alaih) is also a vital feature of the
waqf declaration. Mauquf ‘alaih is an Arabic word denoting beneficiaries for the benefit of
waqf property. The beneficiaries of the Waqf is another significant party stated in the waqf
agreement, which can be the general community or a particular group of beneficiaries such as
family (Pitchay, 2015). The Waqif of the contribution normally determines the recipients/
beneficiaries. According to Gaudiosi (1988), the beneficiaries will continually benefit from
the waqf providing he/she is still eligible to receive the benefit as declared in the waqf
agreement. Pitchay (2015) asserted that the recipients/beneficiaries have a passive role
similar to that of the donor. The trustee basically manages the waqf and ensures the assets are
rightly assigned to the recipients. The right of the beneficiaries is to have detailed information
of the waqf assets, i.e. beneficiaries are required to be aware of the information declared in
the Waqf agreement, including the action and decision of the trustee (Kahf, 2007).
The conditions for the beneficiaries as stated by Malaysian Waqf Foundation
comprise: Muslims and non-Muslims that coexist peacefully with Muslims, as well as free
(wo)men, and the benefits derived from the waqf should increase the faith of the beneficiaries
as well as be in the interest of only Islam. In contrast to Zakah, the benefits of waqf can be
enjoyed by everyone, which makes waqf an influential tool for socioeconomics growth. Waqf
can also be perceived as an act of transferring the ownership of an asset to Allah, during
which the benefit of the property is enjoyed by all beneficiaries.
3.2 Mutawalli
In order to meet the intentions or fulfil the objectives of the donor, the roles of a trustee
is vital to accomplish the purpose of the waqf because the mauquf itself now belongs to Allah
(Masruki & Shafii, 2013). The trustee is in charge of channeling the Waqf to specific
beneficiaries stipulated by the donors (Pitchay, 2015). The mutawalli must ensure Waqf
properties are consistent with the characteristics outlined by the scholars, i.e. inalienability,
irrevocability, and perpetuity. The mutawalli (trustee) can be the waqif, other individuals or
an organization provided that he/she/they are sincere and capable. In the time of Prophet
Muhammad (S.A.W), mauquf was managed by the waqif.
During the time of Abbasiyyah, a body was set up to manage waqf referred to as
mutawalli (Indonesian Waqf Board, 2007). Uthman al-Affan did not appoint any mutawalli to
manage a Bi’ru Rummah, while Umar al-Khattab appointed himself as mutawalli to manage
and allocate the benefits derived from Khaibar (land) to faqir (kinsfolk), freeing slaves, and
for fiisabilillah purposes. In Malaysia, State Islamic Religious Council (SIRC) is the sole
trustee for waqf properties, although it allows small organizations or communities such as
mosques and madrasah to collect Waqf solely for their development.
In the book of Kasyaful Qana, page 249, the Fiqh scholar proscribes certain things in
the appointment of mutawalli. Ghufron (2004) said the provision of waqf to an unstipulated
person, dead person, jinn, child or unborn child is null and void because of the inability of
these people to manage and administer mauquf appropriately.

3.3 The Characteristics of Waqf

The three important characteristics of waqf agreed upon by the majority of Islamic scholars
are irrevocability, perpetuity, and inalienability. Irrevocability is defined as the inability of
contributors (waqif) to withdraw his/her contribution (waqf) at any time (Mohammad Tahir
Sabit Mohammad, Mar Iman, & Omar, 2005). Thus, Waqf is irrevocable once the waqif
makes the sighah without any clause for the transfer of possession to a beneficiary, as
reported by Abu Yusuf. According to Yaqub ibn Ibrahim al-Ansari (an Islamic scholar from
the school of Hanafi), the ownership of the property is transferred from the waqif to Allah
and, therefore irrevocable (Al-Sarakhsi, 1956). According to Al-Kasani (2000), this is the
accepted opinion for mainstream jurists in the four schools of Islamic law. Therefore, the
sighah needs to be planned to commence immediately, and the waqif has to relinquish
ownership afterward, except for the situation of waqf by elvish and on moribund, which takes
effect only upon the death of the waqif (Mohammad Tahir Sabit Mohammad et al., 2005).
The declaration of assets by the waqif is permanent, thus the owner lacks the rights to revert
and claim back the donated assets for private use (Pitchay, 2015).
Both case law and statutes support the irrevocability of waqf declarations in Malaysia
(Mohammad Tahir Sabit Mohammad et al., 2005). Several statutory provisions state that
waqf declarations are irrevocable particularly when the title to the property is registered in the
name of State Islamic Religious Council. The corresponding State Enactments waqf make
non-transferable, conditional on certain circumstances which have been stipulated. For
instance, Section 4 of the Selangor Enactment reads: “(1) A Waqf shall instantly come into
effect once all the obligations and settings of the Waqf had been accomplished except it is
expressly delivered that it shall commence only after the death of the waqif. (2) A Waqf,
which has come into effect, cannot be sold or transferred by the waqif or be inherited by any
person”.
Perpetuity is one of the main characteristics of Waqf, denoting fixed assets declared
for the purpose of Waqf and must be perpetual in nature (Pitchay, 2015). The Arabic term for
perpetuity is ta’bid. The ta’bid term has three meanings: firstly, that the declaration of waqf
by the waqif is automatically followed by legal execution of the endowment, continuously,
until the judgment day. Secondly, the waqf cannot be limited by time and, thus, it is
permanent in nature. Thirdly, ta’bid signifies that the term mauquf, which forms the subject
of waqf, must endure eternally (Mohammad Tahir Sabit Mohammad et al., 2005). Perpetuity
may contain irrevocability, as mentioned in the first meaning. Although perpetuity and
irrevocability may seem the same, they are different because irrevocability means that the
waqif has no ability to revoke his sighah after making the dedication. However, the rule of
irrevocability does not always apply to perpetuity, where in the case of temporary waqf, it
could be revoked even though the waqf is temporary. According to Kahf (1999), in traditional
fiqh, Imam Abu Yusof unaligned with the notion of Waqf revocation by the donor but
recognized temporary waqfs. In a contrasting expression, irrevocability can exist without
perpetuity of the dedication.
The classic view on perpetuity is similar with the third meaning which is the
perpetuity of devotion requires perpetuity of the subject matter. It is evident from the early
works of classic jurists that the mainstream of Muslim jurists reached a consensus on the
perpetuity of waqf that it should be for infinity if possible (Mohammad Tahir Sabit
Mohammad et al., 2005). Hanafi jurists posited a condition that the validity of waqf is
dependent on perpetuity. For instance, S. Ather Husaini & S. Khalid Rashid (1973) stated that
“If it purports to be made for a limited period or a temporary purpose, it is void”. Mohammad
et al., 2005) deduced from Takmalah al-Majmu’ Sharh al-Muhadhdhab, that the Hanafi and
Shafi'i jurist that perpetuity will be reputed as a matter of law on any term waqf are used, and
the ultimate benefit will be passed on to the underprivileged and penurious, though
anonymously. Therefore, later Islamic scholars interpret the rule of perpetuity to be the
prohibition of temporal sighah of waqf and the mauquf is required to exist perpetually
(Mohamad Tahir Sabit Mohammad & Mar Iman, 2006).
The characteristics of inalienability is derived from the hadith of the Prophet
Muhammad (SAW) as narrated by Ibn 'Umar. As it goes, Umar bin Khattab acquired some
land in Khaibar, and he consulted the Prophet regarding it, saying, "O Allah' Apostle got
some land in Khaibar better than which I have never had, what do you suggest that I do with
it?" The Prophet said, "If you like you can give the land as endowment and give its fruits in
charity." So Umar gave it in charity as an endowment on the condition that would not be sold
nor given to anybody as a present and not to be inherited, but its yield would be given in
charity to the poor people, to the Kith and kin, for freeing slaves, for Allah's Cause, to the
travelers and guests; and that there would be no harm if the guardian of the endowment ate
from it according to his need with good intention, and fed others without storing it for the
future." (Sahih Bukhari, Volume 3, Book 50, Number 895).
Once the sighah (declaration) is performed and validated in accordance with the
recognized rules of Islamic law, the mauquf ownership is reliquished, hence it can neither be
re-transferred by the donor or the mutawalli nor can it be obtained via inheritance (Tyabji,
1940). Based on this rule, mortgaging or pledging the waqf property as collateral for a loan
from mutawalli is also prohibited, just because this will invalidate the waqf by making it
redundant (Mohammad Tahir Sabit Mohammad et al., 2005). Therefore, if the administrator
mortgages a building under Waqf and the mortgagor resides in it, the latter must pay the
customary rent to protect the waqf (S. Ather Husaini & S. Khalid Rashid, 1973). In line with
this law, the current mortgage system where the bank can sell a property is not permissible.

3.4 The Waqf entity

Mohd Noor et al., (2007) reported that waqf property comprises two forms: moveable and
immoveable property. Immovable property is considered as fixed property, hence it is
destroyed when amended or changed such as buildings and land, while moveable property
can be transferred from one place to another, such as money, animals and vehicles. Moveable
property is categorized into two types: tangible property, which can be touched because it
physically exists, such as tables and chairs, and intangible assets such as science, information,
data or knowledge that can be transformed into something of value and refeered to as
intellectual property (Mohamed & Abd Aziz, 2005).
In the case of immovable property, scholars established it is legitimate because it
abides by the main principles of waqf as property income (Borham, 2011). According to Ibn
Abidin (1966), moveable property is considered invalid due to ineligibility perpetuity.
However, it is difficult to preserve moveable property due to their perishability. Imam Shafi'i
asserted that any property that can be purchased and sold can also be donated providing the
benefits can be obtained permanently (Siti Mashitoh Mahamood, 2007). This view is
consistent with Hanbali and Maliki schools of thought. Ibn Qudamah al-Maqdisi in his book
of Al-Mughni (Siti Mashitoh Mahamood, 2007) likened the prohibition categories of
movable property to mauquf composed of wax that is eventually exhausted when used. Sayed
Khalid Rashid (2003) stated that Imam Zufar allowed cash Waqf without attaching any
clauses. Some ulama of the school of Shafii allowed the use of dog for waqf purposes, which
is permitted according to al-Subki because of its benefits (Mohammad & Mar Iman, 2006).
On the other hand, Waqf Irsad is the endowment made by the government for public
purposes, such as donating plots of land to erect schools and hospitals. Borham (2011) also
described Waqf Irsad as the donation of treasury owned properties by the government for
public interest, whether movable and immovable property. Waqf Irsad has been deemed
lawful (Ghani, 2013).

3.5 Purpose of Waqf

The beneficiary of waqf is dependent on the purpose of the Waqf. In the sighah (declaration)
of Waqf, waqif must clearly stipulate the purpose of their Waqf. The purposes of Waqf can
be categorized into two: Waqf Khairi and Waqf Zuhri (Mughniyah, 1964). However,
Mohammad (2003) classsified the purposes of Waqf into charity and family remuneration.
This paper further categorizes Waqf purposes into four: charity, family, religious and
musytarak.
Waqf for charity purposes is Waqf that may be expended on a particular category of
individuals, such as underprivileged, deprived, aged, and sick, widows, orphans and travelers
or everyone if doing so is beneficial to the entire society (Mohammad, 2003). According to
Accounting and Auditing Organisation for Islamic Financial Institutions (AAOIFI) Sharia
Standard No. 33 (SS 33) on waqf, family Waqf is Waqf where the benefits is preserved for
exclusively for certain individuals, typically heirs and families. The benefits of such waqf
goes to a charitable purpose when none of these individuals is existent (Azmi & Hanifa,
2015). Waqf for charitable purposes to benefit the public has the largest percentage of waqf
contributions (Pitchay, 2015). The charitable programs in areas such as education, health care
services, infrastructures, protection of animal and environment, are focused on benefiting
everyone including non-Muslims (Kahf, 1998).
Waqf for religious purposes is the foremost and most extensively practiced type of
waqif, from the time Prophet Muhammad (SAW) migrated to Madinah and built a Quba
Mosque as religious waqf. According to Kahf (2010), waqf for religious purposes demands
that the waqif has to declare that the property being donated is for religious needs of Muslim
communities. The mauquf for religious purposes customarily comprises mosques, burial
grounds, religious school, or a profitable activity that can generate funds for religious
activities.
The waqf musytarak, also referred to as quasi-public waqf, is intended for both the
donator’s family in addition to charitable and communal purposes (Mohsin, 2009; Siraj,
2012). Waqf musytarak purposes are largely practiced in Egypt with the a certain portion of
the waqf returns directed to the waqif’s preferred mosque, school or for specific religious
practices such as the reading of the Quran at his graveside while the other portion is allocated
to public beneficiaries (Siraj, 2012).

3.6 Timing of Waqf

Waqf should be implemented on a permanent basis (Kahf, 2003a) based on its
perpetuity characteristic. According to Kahf (2003b), the majority of islamic jurists consider
Waqf as basically perpetual, while temporary Waqf is dependent on factors such as its
declaration in the waqif’s will, the nature of the mauquf or the description of the object.
Imam Abu Yusuf recognized temporary Waqf and objected to its invalidation by the waqif
(Kahf, 1999). The majority of the jurist also recognize that the mauquf needs to be perpetual
except otherwise supported by sound reasoning or text. For an example, the Waqf of horses is
permitted according to the hadith. The Syafiies and Hanafis accept the Waqf of trees and
buildings, but forbid cash and food Waqf. Although several jurists do not accept temporal
Waqf, countries like Egypt, Sudan & Malaysia adopt the opinion that temporal Waqf is
allowed in order to align with modern economics.
3.7 Classification
Generally, Waqf is any form of property contributed for the purpose of public benefit or
charity without stipulating the recipients or purposes. The waqif does not place any
conditions to the property donated. For an example, in Malaysia, the Waqifs provide money
as cash Waqf and allows the different State Islamic Religious Councils (SIRC) to choose who
the beneficiaries of the money. Special Waqf is a unique situation where the waqif
determines that the endowment be made available for a specific objective or a particular
beneficiary. For instance, the mutawalli donates three projects, building a mosque, a school
and a market. In a situation where the waqif (donors) determines which project they want to
contribute to, the mutawalli must abide by their will.

4 Creating the Sustainability of Waqf: The Role of Mutawalli

The mutawalli as analyzed above is not a pillar of Waqf, however it is crucial to
sustaining Waqf. Mohsin (2009) pointed out that the collapse of Waqf system during the
Ottoman Empire is attributable to mismanagement of administrative duties in the time of
Mamalik’s. Historically in Malaysia, mutawalli was appointed among the Imam (head of the
mosque), Bilal (deputy of the mosque) or Penghulu (the Head of a village or settlement)
(Pitchay, 2015). It is good to appoint a trustworthy individual as mutawalli because of the
crucial role Waqf plays in every segment of the Ummah. However, problems might occur
when the sighah (declaration) of waqf is not in written form. This may cause the progeny of
mutawalli to assume or contest the ownership of the mauquf. Moreover, there remain issues
hindering the development and contribution of waqf such as poor administration (Harun,
Possumah, Mohd Shafiai, & Mohd. Noor, 2016), redundant waqf properties (Mohd Ali,
Ahmad, & Ahmad Mahdzan, 2015), lack of sincerity and reliability of mutawalli (Saad,
Kassim, & Hamid, 2013), lack of capital (Ismail, Salim, & Ahmad Hanafiah, 2015), lack of
information and understanding among members of the society (Isamail, Rosele, & Ramli,
2015), incompetent mutawalli (Saifuddin, Kayadibi, Polat, Fidan, & Kayadibi, 2014),
disinterest of mutawalli in developing the properties because it is a challenging task (Rashid,
2014), and so on.
The success of Waqf at the start of the Ottoman reign and the development of waqf in
Singapore are excellent examples of successful exploitation of waqf. These successes have
been attributed to good governance. Thus, sustaining Waqf requires a viable relationship
between mutawalli and donors, with trust as the mediating factor. According to Snip (2011),
donors are inclined to contribute to trusted trustees. Trust is important because the
development of Waqf, particularly cash Waqf, needs donors as their main source
(MacMillan, Money, Money, & Downing, 2005). This paper suggests, the primary step to
gaining the trust of waqif is to improve mutawalli information disclosure and communication.
The suggestion is based on empirical research such as that of Sargeant & Woodliffe (2007)
who stressed that accurate information and good communication will augment the level of
trust and loyalty of donor.

5 Conclusion
The main objective of this study is to propose and conceptualize a contemporary
structure model of Waqf based on a review of past studies. The model is vital to providing a
wider perspective of the process and characteristics of Waqf. This will help the public to
better comprehend the Waqf in order to properly practice it. It can be inferred from concise
review of related studies that the development and sustainability of Waqf depends on all its
aspects and characteristics. The inclination of waqif to contribute (generosity) must be
maintained; individuals serving the role of mutawalli should improve their management
skills, insights of Islamic scholars must be taken into consideration, while the responsibility
of Islamic leaders to provide full support must be maintained so that Waqf will constantly be
able to significantly empower the Ummah.

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