Waqf, in Arabic, is hold, confinement or prohibition. In North and West Africa, Waqf (pl. Awqaf) is also called Habs (pl. Ahbas or Hubus). The word Waqf is used in the Islamic Law in the meaning of holding a property and preserving it so that its fruits, revenues or usufruct is used exclusively for the benefit of an objective of righteousness while prohibiting any use or disposition of it outside its specific objective. This definition accords continuity or perpetuity to Waqf, i.e., it applies to non-perishable properties whose benefit and usufruct can be extracted without consuming the property itself. Therefore Waqf widely relates to land and buildings. However, there are Awqaf of books, agricultural machinery, livestock, shares and stocks, and cash money. The general idea of Waqf is as old as humanity because in all communities there were properties devoted to public and community use. But if we examine closely the concept of Waqf we would agree with Muslim jurists who argue that Waqf is characteristic to the Islamic law and culture.
Islamic law is the first law ever that defines and regulates waqf as a civil societal institution. It started since the time of the Prophet Muhammad himself, peace and blessings be upon him. Waqf before Islam was always a religious exercise when a rich person assigns a property to the temple and monks would use it for the temple expenses and may also extend its use to helping the poor or even providing books to a library.
Of course on the religious side, it is argued that the first Waqf that ever existed is the sacred building of ka`bah in Makkah since the Qur'an (Aal `Imran 3: 96) mentions that it is the first house of worshipping God set for people.
The real innovations in the idea of Waqf started in the early Islamic Period in Madinah. It was initialed by the Prophet, peace and blessings be upon him, when he called that someone should buy the well of Rumah and to designate it as a public utility of drinking water free for all. This brought about a wide range of Awqaf that serve the welfare of the society at large and provide basis for sustainable public utilities in a way that has no precedents in the history of humanity. Then the Prophet, peace and blessings be upon him, advised `Umar to assign his land in Khaibar as a Waqf for the poor and needy. This marked the second innovation that carried ‘supporting the poor and needy’ from a scale of freckled individual charity to a scale of social civic institution with capital investment. The third innovation came about when the Companions, during the reign of `Umar ibn Al-Khattab, added the family Waqf.
These three innovations in the idea of Awqaf shall make the first section of this paper. The second section shall take a quick glance at the historical application of these three innovations and will discuss the important potentials of Awqaf in the dynamism of sustaining development and growth of the Muslim society. The third section shall discuss necessary reforms to enable the Islamic Waqf to play its role in sustaining economic and social development. This will be discussed from two angles a managerial angle and a juristic or legislative angle.
Beginning, Kinds, and Objectives of the Islamic Waqf
In this section I will discuss how the Islamic Waqf began, expanded, and what forms and objectives it emphasized.
Beginning and Kinds of Waqf
In the history of Islam, the first known Waqf is the mosque of Qubaa' in Madinah, a city 400 kilometer north of Makkah, which was built upon the arrival of the Prophet Muhammad, peace and blessings be upon him, in 622 C.E. It stands now on the same lot with a new and enlarged structure. Six months later, Qubaa' was followed by the mosque of the Prophet, peace and blessings be upon him, in the center of Madinah. Mosques and real estates confined for providing revenues to spend on mosques' maintenance and their running expenses are in the category of religious Waqf. Religious Waqf, in any society and for any religion, adds to the social welfare of the community because it helps satisfy the religious needs of people and reduce the direct cost of providing religious services for any future generation. What is interesting in the Islamic religious Waqf is that the Shari`ah did not give any religious bodies, persons, or leaders managerial privileges or beneficiary’s rights on any religious grounds. An Imam or preacher may be entitled to certain benefits from the revenues of a religious Waqf on one ground only, that is, if the name or position is assigned such benefits by the Waqf founder.
|Waqf was able to expand beyond the scope of religious activities to cover education, public utilities, social work, and other areas of societal services.|
This thing adds another very important dimension of the Islamic Waqf: it is a civil institution not a religious one. It is governed by a legal structure that leaves no room to the religious hierarchy to tamper with and it gives its founder a free hand in determining its management, use, distribution, etc. These legal regulations and boundaries are what carried waqf to the service of society on institutional basis. The meaning of being civil is that it has its legal framework, objectives, documentation and regulations for management and use of its output. It is not left to the imams, preachers or leaders of Payers to manage the Islamic Waqf or to take decisions according to their own preferences. These characteristics of Islamic Waqf took the whole idea and application of charity in the Muslim society to a level of civic organization and established the Waqf as an institution of charity infrastructure that is able to sustain servicing the society at large and in all its aspects and needs.
Furthermore, these characteristics create a social setting in which the Waqf was able to expand beyond the scope of religious activities to cover education, public utilities, social work, and other areas of societal services.
Philanthropic Waqf is the second kind of Waqf. It aims at supporting the poor segment of the society and all activities that are of interest to the community such as public utilities, the poor and needy, public libraries, scientific research, education, health services, care of animals, environmental preservation, lending to small businessmen, parks, roads, bridges, dams, etc. Philanthropic Waqf began by the Prophet Muhammad, peace and blessings be upon him, too. Drinking water used to be sold in Madinah at a high price. With the continuous inflow of migrants who fled their lands and towns to escape religious-based persecution it became difficult for the poor to pay for water; the Prophet, peace and blessings be upon him, called on people to buy the well and make it into a Waqf free to whoever takes water; `Uthman ibn `Affan bought it, made it into a Waqf and asked the Prophet, peace and blessings be upon him, that his pitcher must be considered also free like any other person who gets water. Later, in the year four of the Hijrah calendar, the Prophet, peace and blessings be upon him, took hold of the orchards that were willed to him by Mukhairiq and made the remainder of their output another charitable Waqf after paying for his household expenses. This exercise was followed by `Umar, who asked the Prophet, peace and blessings be upon him, what to do with a palm orchard he owned in the city of khaibar and the Prophet, peace and blessings be upon him, said "Give it in charity (i.e. as an endowment) with its land and trees on the condition that the land and trees will neither be sold nor given as a present, nor bequeathed, but the fruits are to be spent in charity." (Al-Bukhari) By the time when the Prophet’s, peace and blessings be upon him, died in 632, many other charitable Waqf were made by several of his Companions.
A third kind of Waqf started shortly after the death of the Prophet, peace and blessings be upon him, during the reign of `Umar ibn Al-Khattab (635-645), the second successor. When `Umar decided to document in writing his Waqf in khaibar, he invited some of the Companions of the Prophet, peace and blessings be upon him, to attest to this document. Jaber, another Companion, says that when the news broke out every real estate owner made certain Waqf. Some of those put a condition that part of the fruits and revenues of their Waqf must be distributed to their own children and descendants and another part should be given to the poor. This kind of Waqf is called posterity or family Waqf. Therefore, unlike today’s foundations in America that are restricted to religious or philanthropic purposes, Waqf in Islamic law may also be for one's own family and descendants.
If we closely look at the idea and principles of philanthropy we can easily make a case that family Waqf is in fact charitable in essence because it gives income/usufruct to persons free of charges and it improves the welfare of future generations; a matter that reduces the future social welfare burden of philanthropies/governments.
The previous categorization of Waqf is a classical one that is found in Fiqh books but it is necessary to add that it is not the only way that Awqaf can be sorted. Of course from the point of view of the use of the Waqf property there it is important to know whether the property is used for the objective of Waqf on it produces any revenues that are distributed to the objective of the Waqf. In other word we need to make a distinction between Waqf properties that produce usufruct that is consumed by the beneficiaries and properties that may produce any other goods or services but its net revenue is going to the benefit of its objective. This distinction is very important as the investmental Waqf should be then subject to efficiency and managerial criteria that are different from the criteria of Waqf properties that are themselves used for their own usufruct. Therefore, in each of the above three categories we should distinguish between investmental Waqf and usufructal Waqf and once a Waqf is assigned as investmental, it can be for religious purposes, for charity or for family members, present and future.
Main Characteristics of the Islamic Waqf
As a special kind of benevolence Waqf has the following two characteristics:
It means that once a property, often a real estate, is dedicated as Waqf it remains Waqf for ever. Elimination of the Waqf character off a property requires difficult and lengthy procedure. It requires a process of exchanging the Waqf property for another property of equivalent value and equivalent service/benefit for its objectives in addition to the approval of a local court. Upon completion of such an exchange the new property must be dedicated a Waqf for the same purpose and beneficiaries as the former property. Theoretically at least, perpetuity implies that Waqf properties should not decrease.
II- Permanence of Stipulations of the Waqf Founder
Since creating a Waqf is a voluntary act founded on the principle of freedom of an owner to do whatever she/he likes with her/his own property, conditions specified by the founder must be fulfilled to their letter as long as they do not contradict or violate any of the Shari`ah rulings. This implies that revenues of Waqf should exclusively be used for the objectives stipulated by its founder. Furthermore, the conditions of the founders may not be changed by management or supervisory court as long as they are still feasible to execute. If a Waqf purpose becomes infeasible, the revenue of this Waqf should then be spent on a closest purpose available and if not it goes to the poor and needy, being the default objective/beneficiary of Waqf. Permanence covers all the founder's stipulations whether they relate to purpose, distribution of revenues, management, supervisory authority, etc.
Management of the Waqf Property
The Waqf founder determines the type of management of his\her Waqf. The Waqf manager is usually called Mutawalli, Nazir or Qayyim and his\her responsibility is to administer the Waqf property to the best interest of the beneficiaries. The first duty of mutawalli is to preserve the property; this is followed by maximization of the revenues of the beneficiaries. The Waqf document usually mentions how the mutawalli is compensated for this effort and if the document does not mention a compensation for the mutawalli, he\she either volunteers the work or seeks assignment of compensation from the court.
Founder appointment of the Waqf managers obviously implies that every piece of Waqf would have its own autonomous management. This is what I call the atomic management of Waqf. This is also coupled by another natural implied and obvious characteristic of the Waqf management that is localismlocal community. which means that a founder would appoint a manager from the locality of the Waqf property. Both the property and the manager would normally be known to the
These two characteristics, atomism and localism, of the Waqf management are of extremely great importance for the success of the Waqf management because they allow for competition and control that are the two keys of efficiency especially if we keep in mind that Waqf management normally lacks private profit motive. Every Mutawalli shall be able to compare her/his performance with any other Mutawalli in the area and (s)he shall always remain under the eyes of the local community of which beneficiaries are only a subset.
Two junctures took place in our Islamic history that destroyed these two characteristics and deprived the Waqf from the fruits of competition and local control. First, came the expansion of the role of judiciary in regard to Waqf from a dispute solving agency to a supervision agency. In the early part of the eighth century of Hijrah a judge in Egypt established a special register and an office to record Awqaf properties in his area. This culminated in the establishment of an Awqaf office for registration with expanded function to include control and supervision. It was linked to the supreme judge who used to be called the "judge of judges." An unfortunate shift in control from the local community to an agency that is not qualified for managerial supervision!
The second juncture came in the late thirteenth century of Hijrah (1863 C.E.) when the Ottoman empire established a ministry of Awqaf and enacted laws that put virtually all Awqaf properties under the supervision, and very often under the management, of the government. Awqaf practically became part of the public sector, with all the known evils of waste of resources, lack of accountability, lack of motivation to improve performance and efficiency, slow and irresponsive decision making, favoritism, political interference in management and finally but not the least moral, financial, and economic corruption. This final straw drowned the Awqaf properties and opened them to wasteful uses that ended eliminating the family Waqf and annexing other Awqaf to government properties in many Muslim countries especially most Arab countries.
While historians tell us that more than one third of the agricultural land and sometimes about one half of the buildings in major cities in Syria, Turkey, Egypt, Morocco, Algeria, Iraq and Palestine were Awqaf properties, today’s revenues of Awqaf are not even sufficient to pay for maintenance of mosques to the extent that the general budget always subsidizes the ministry of Awqaf in most of these countries.
The Classical Fiqh of Waqf
The Fiqh of Waqf is mainly analogy-based as we have very few texts that deal with the details of Awqaf. The late Shaikh Mustafa Al-Zarka used to argue that only one thing is undisputed in Awqaf. It is that the objective must be an act of benevolence “Birr”*. In spite of this, many classical Faqhis often take un-lending positions on several issues to an extent that may really hinder the development of a progressive Shari`ah-based legal framework of Awqaf. Let us take a few examples from the application of the principle of perpetuity.
Although the principle of perpetuity is of great importance for Waqf because it ensures historical accumulation of Waqf properties, it is sometimes carried too far to an extent that seems to restrict certain acts of benevolence. If a community needs a mosque for a few years until a permanent mosque is built, the Faqhis, and unfortunately several contemporary laws of Awqaf, tell us that once you pronounce a property a Waqf as a Mosque it remains so until the Day of Judgment. In today’s world, some Muslim communities are mobile to an extent that the mosque itself in only needed temporarily. Temporality of Waqf is also needed in all cases where the need is temporary such as maintaining an orphan until maturity, an aged person until expiry or a student until graduation. Several contemporary laws on Awqaf adopted the principle of perpetuity as a blanket of all Awqaf without providing adequate venues for such temporary needs. This is done in spite of the fact that the Maliki School strongly argues for the coexistence in Awqaf of temporality and perpetuity side by side.
To go one step further, let us survey the classical Fiqh chapters on Waqf, to see if the Waqf of a flow of commodity is accommodated! An immediate example is a Waqf of weekly magazine on a public library that can be bought, in advance, from the producer for a number of years as well as on a continuous basis. Similar to this is a Waqf of say 10% of the output of a brick factory for schools’ construction, the Waqf of a toll road company of free passage for handicapped, old persons or school buses and the Waqf of an otherwise a private parking lot for two hours only every week for the Friday Prayers.
Add to this a Waqf of financial rights such as a Waqf of a percentage of a company’s net profit without making any part or percentage of its asset or ownership into a Waqf property or a Waqf of a percentage of one’s salary or professional income.
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