1

THE CONTEMPORARY MODEL OF WAQF

STRUCTURE
Mohamad I’sa Abd Jalil, Sofri Yahya, and Anwar Allah Pitchay

1.1 INTRODUCTION

The entire wealth, asset and natural resources in the earth belong to Allah and can be
exploited by humans via economic activities to satisfy their needs. Naturally, people obtain
wages, rent, and profit when they are involved directly in economic activity. In contrast, people
that are indirectly involved in economic activity will likely acquire property in forms of hibah,
zakah, sadaqah, inheritance, and waqf.
Charity is a major obligation of Islam (Lambarraa & Riener, 2012). Numerous evidence
can be found in the Quran and Hadith that elucidates 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 a different application, 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 current and posterity, from which its income and benefit may be used for any
charitable intention (Dahlan, Yaa’kub, Hamid, & Palil, 2014). Finally, Al-Wasiyyah (last will)
is a gift of property that is effected by 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 enshrined in the State List of the Federal
Constitution 1957. The traditional management of Waqf was granted to the State Islamic
Religious Councils (SIRCs) in 1952 (Mohamad, S. A. Kader, & Ali, 2012), and they remain
the sole trustees of Waqf in Malaysia. Since all states have their explicit rules and regulation,
the Federal government of Malaysia has endeavored to liaise with them 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 graveyards. 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 centers.
 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 and others, there is the need to ensure the continuity of waqf, particularly in Malaysia.
Therefore, a model of Waqf structure that elucidates the process of Waqf and its characteristics
should be developed. The model will assist the public to comprehend Waqf better and ensure
it is effectively and systematically practiced. Public understanding regarding the Waqf will
enhance the performance of waqf.

1.2 THE CONCEPT OF CHARITY IN ISLAM

There are two forms of charity in Islam (Lambarraa & Riener, 2012). One is a
mandatory form called Zakah. It works comparable to a redistributive tax system. The other is
voluntary. Islahi (1992) has listed sadaqah, hibah or 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.

1.2.1 Zakah
In Arabic linguistics, zakah is a verb, meaning “to grow, to purify and to increase”
(Bello, 2009). Zakah is the third pillar of Islam. The term zakat is referred to, approximately,
70 times together with salat (prayers) in the Al-Quran (Htay et al., 2014). It is mandatory, for
all Muslims who have the financial resources (nisab), to fulfill 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; to some scholars, there is no zakah on the
corpus or produce of waqf assets. Included are jewellery excluding gold and silver, and farm
animals, excluding 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). As an example, if a person owns five camels (nisab) for one year (haul),
he/she is required to pay zakah for, a 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 used 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), indebted (Gharimin), for the cause of God (Fisabillillah), and travellers
stranded on a journey (Ibnus Sabil).
1.2.2 Sadaqah
Sadaqah is an Arabic word for almsgiving, using 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 for the love and reward from Allah
alone. The concept of sadaqah is the sincere giving of charity only to the underprivileged and
deprived, without expecting anything in return, as stated in chapter 2 (Surah Al-Baqarah), verse
271 of the Quran:
“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.”

1.2.3 Hibah/Hadiyyah
A hibah is a kind of sadaqah, although hibah is given to everyone including the rich to
nurture better relationships between people. In contrast, sadaqah aims 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”.

1.2.4 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 makes a vow to perform a Nazar, he or she is obliged
to fulfill it.

1.2.5 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. In contrast to
Commercial Takaful, some Muslim communities in Johor, Malaysia practice takaful (khairat
kematian), where a fixed mutual amount is given to bereaved families. Currently, takaful plays
a critical role by replacing the conventional insurance, which is non-compliant with Shariah.

1.2.6 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), wasiyah in Islam is not only perceived as a part of Ibadah but as a
social responsibility since it supports the socio-economic state of a community indirectly
through sadaqah. Faraid, on the other hand, is an allocation that has been specified under
Shariah to the inheritors. The fiqh of faraid explains that a person is allowed to know the
percentage that he or she is 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.

1.2.7 Waqf
Based on the opinion of Imam Abu Hanifa, waqf can be defined as the restriction of a
particular property in possession of the contributor (waqif) and dedicate its benefits or usufruct
to aid the underprivileged and penurious or other pious purposes (Ibrahim et al., 2013). Waqf
is also explained as an act 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 the 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). The property and money provided as waqf cease 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 do not refer to its physicality
but rather its value ad benefit (Mohammad Tahir Sabit Mohammad, 2009). Therefore, the cash
waqf can be invested as long as the dividend or profits will be perpetual.

1.3 THE CONTEMPORARY MODEL OF WAQF STRUCTURE

The structure of waqf (as shown in figure 1.1) comprehensively elucidates the waqf
structure. From figure 1.1, waqf consists of four pillars: 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 that it is not one of the Waqf pillars. The appointment of mutawalli is vital because the
waqif has relinquished the ownership of the property to Allah. Thus, the mutawalli appointed
by waqif will be entirely responsible for the management of the waqf property in line with what
it is intended for by waqif, as well as adhering to Shariah principles.
There are two issues associated with mauquf (asset/property): their characteristics and
the 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 may 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 Shariah law, and no longer belongs to waqif. Under the declaration, waqif must state the
beneficiaries, timing, and classification.

1.3.1 The Pillars of Waqf

In Islam, the jurisprudence of religion (Fiqh) involves how to perform Solah; what
amount to pay for 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 four principles: waqif (the donor/founder), mauquf (the
subject property), sighah (declaration), and mauquf ‘alaih (beneficiaries). All the pillars of
waqf 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 legally unrestrained 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 during the declaration, mature and not a slave (free man). Afterwards, the person
should also have unhindered ownership of the assets to be donated for Waqf (Gaudiosi, 1988).
Mauquf (the subject property) is an Arabic word for donated property. According to
Mashitoh (2006), the property must be entirely owned by the donor before he/she contributes
it and he/she understands that he/she 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 towards his/her assets becomes inactive, and a manager or trustee of the Waqf property
will take over the responsibility to manage 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 mauquf, (2) the mauquf must have a price value, (3) the founder must completely own
the mauquf, and (4) the mauquf does not breach Shari’ah principles (Ambrose et al., 2015).

Figure 1.1: The Structure of Waqf

Source: Authors Illustrator

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

emphasizes on the formal agreement in all business transactions, even if the parties involved
are siblings or couples. Similarly, the Waqf requires a sighah (declaration) that states the
parties, objective, and property involved. According to Pitchay (2015), the donor has to specify
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 the needy.” It can be inferred
from this declaration that the waqif wants to give 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 the objective of the waqf (mauquf ‘alaih) is also a vital feature of the
waqf declaration. Mauquf ‘alaih is an Arabic word indicating beneficiaries. The beneficiary of
the Waqf is another significant party stated in the waqf agreement, which can be the general
community or a particular group such as family (Pitchay, 2015). The Waqif normally
determines the recipients/beneficiaries. According to Gaudiosi (1988), the beneficiaries will
continually benefit from the waqf, provided they are 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 manages the waqf and ensures the income
or benefits 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 and the benefits derived from
the waqf should increase the faith of the beneficiaries as well as be in the interest of Islam. In
contrast to zakah, the benefits of waqf can be enjoyed by everyone, which makes waqf an
influential tool for socioeconomic 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.

1.3.2 Mutawalli
To act according to the intention, or fulfill the objectives of the donor, the role of a
trustee is vital to accomplishing the purpose of the waqf because the mauquf now belongs to
Allah (Masruki & Shafii, 2013). The trustee is in charge of channelling 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.
At 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
fisabilillah purposes. In Malaysia, every 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 Kashaful 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.

1.3.3 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 the contributor (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, Yaqub ibn Ibrahim al-Ansari (an Islamic scholar from
Hanafi School). For him, 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 of mainstream jurists in the four schools of Islamic law. Therefore, the sighah
needs to be assumed 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 make waqf 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
Waqf and must be perpetual (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. 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 cannot revoke his sighah after
making the dedication. However, the rule of irrevocability does not always apply to perpetuity,
wherein 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 to 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 Shafi'i and Hanafi schools hold that ‘whenever the
term waqf is used, permanence will be presumed, as a matter of law, and the ultimate benefit
will go to the poor, though unnamed. 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 are 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 by the recognized rules of
Islamic law, the ownership of mauquf is relinquished. 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 (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.
1.3.4 The Waqf entity
Mohd Noor et al., (2007) reported that waqf property comprises two forms: moveable
and immovable property. Immovable property is considered as fixed property, 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 and intangible property. A tangible
property can be touched because it physically exists, such as tables and chairs. Intangible assets
are such as science, information, data or knowledge that can be transformed into something of
value and referred to as intellectual property (Mohamed & Abd Aziz, 2005).
In the case of immovable property, scholars have established that it is legitimate
(Borham, 2011). According to Ibn Abidin (1966), the moveable property is considered invalid
due to lack of perpetuity. Preserving moveable property due to their perishability is difficult.
Imam Shafi'i asserted that any property that can be purchased and sold could 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 prohibited 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 a 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).

1.3.5 Purpose of Waqf

The beneficiary of waqf is dependent on the purpose of the waqf. In the sighah
(declaration) of waqf, waqif must stipulate the purpose of his Waqf. The purposes of Waqf can
be categorized into two: waqf khairi and waqf zuri (Mughniyah, 1964). However, Mohammad
(2003) classified 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 are reserved
exclusively for certain individuals, typically heirs and families. The benefits of such waqf go
to a charitable purpose when none of these individuals is existent (Azmi & Hanifa, 2015). Waqf
for charitable purposes that can benefit the public has the largest percentage of waqf
contributions (Pitchay, 2015). The charitable programs in areas such as education, healthcare
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
waqf, 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
donor’s family and charitable or communal purposes (Mohsin, 2009; Siraj, 2012). Waqf
musytarak purposes are largely practiced in Egypt with 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).

1.3.6 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. As an example, the Waqf of horses is permitted
according to the hadith. The majority of Shafi’is 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 to
align with modern economics.

1.3.7 Classification
Waqf is any form of property contributed for public benefit or charity without
stipulating the recipients or purposes. The waqif does not place any conditions on the donated
property. For example, in Malaysia, the waqifs provide money as cash waqf and allows the
different State Islamic Religious Councils (SIRCs) to choose who should be the beneficiaries
of the money. Special waqf is a unique situation where the waqif determines that the
endowment is made available for a specific objective or a particular beneficiary. For instance,
the mutawalli offer 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.

1.4. CREATING THE SUSTAINABILITY OF WAQF: THE ROLE OF

MUTAWALLI

The mutawalli as analysed above is not a pillar of Waqf. However, it is crucial to

sustaining of Waqf. Mohsin (2009) pointed out that the collapse of Waqf system during the
Ottoman Empire is attributable to mismanagement of administrative duties. 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. They are the poor administration of waqf (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).
Also, included are the lack of capital (Ismail, Salim, & Ahmad Hanafiah, 2015), the lack of
information and understanding among members of the society (Isamail, Rosele, & Ramli,
2015). Other issues are incompetent mutawallis (Saifuddin, Kayadibi, Polat, Fidan, &
Kayadibi, 2014), the disinterest of mutawallis 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 of the
development of waqf, particularly cash waqf, and 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 would augment the level of
trust and loyalty of donor.

1.5. 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
comprehend the waqf better to practice it properly. 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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