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TOWARDS IMPROVEMENT OF THE RIGHTS AND

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MANAGEMENT AND...

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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
4
Kader, 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.

5
ibid
6
Mahamood, 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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Majlis

Ad viso ry Board
Waq f Waq f

Management Corporatio n

Majlis
Register
Majlis Trustees Regulate Trustees
Monitor Corporatio n
Manage

Consump tive Waqf Productive Waqf Others

Property 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
10
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).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 24 of the Wakaf (State of Selangor) Enactment 1999
22
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 29 of the Wakaf (State of Selangor) Enactment 1999
24
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
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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
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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
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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.

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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.

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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

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