Part II

 

Wqf; The Forgetten Legacy

 

 

The first part of the series has outlined the greatness, role and contribution of waqf during the Islamic government era. However, today's Muslim community does not see waqf as an essential mechanism that can be used to improve the socio-economic status of the ummah. The endowments perform as if they were to pursue a hereditary tradition only. It is often also given a narrow definition of just covering assets such as graves, abandoned lands, mosques, madrassas and religious matters. As the implications, waqf failed to be fully implemented for the development of Muslims as has been enacted in the last 1400 years ago.

              To date, no detailed study can provide factual proof on the exact cause of waiver of institution and practice of welfare among Muslims. However, most researchers relate this neglect to the intervention, action and influence of Western colonialism on Muslim countries. Application of the value of secularism by the Western Colonialists in Islamic countries through changes in legislative, educational, political and socio-economic policies has left a tremendous impression in the practice of Islamic institutions including waqf changes in legislative enactments, seizures and cancellations of waqf properties in Islamic jurisprudence. For example, it has narrowed the understanding and eliminated this system from the minds of the Muslim community. The effects of colonisation on waqf institutions in Algeria and India (David S. Powers) concludes that the difficulty in obtaining land under the waqf system has led the French invaders to control the institution of waqf through a series of legislative enactments. The effectiveness of these changes is helped by various campaigns that have worsened the waqf institution among the Algerian population themselves. The Islamic law governing the country's administrative policy in Algeria was abolished in 1830 and subsequently replaced by the French Public Law. French colonisers have declared that the sale of waqf assets to European citizens is valid based on the Ordinance passed on October 1st, 1844. In 1859, France's Criminal Law was adopted to replace the Islamic Law in criminal penalties. This was followed by the passing of a law known as Loi Warnier on 26th July 1873 which put all land affairs in Algeria under French law. By 1873 only Islamic Laws involving matters of marriage, divorce and justification remained in Algeria. A large number of books and articles that undermine the authority of waqf institutions have been published in the 1860s to ensure their policy objectives achieve through writers such as Santayra & Charbonneau, E. Zeys, Ernest Mercier and Marcel Morand. The deliberate action made by D.S Power aims at restricting the rights of the Muslim community in Algeria. Similar operations and interventions were also carried out by French invaders in other Islamic countries such as Tunisia, Morocco, Syria and Lebanon.

              The institution of waqf in India also faces the British colonial intervention. In 1772, for instance, the Bengali court judges of smart Islamic groups were exchanged with British judges. British judges who have no direct knowledge of the Islamic Law have viewed and interpreted waqf negatively, which are considered to have no charitable elements. Between 1879 and 1893, the Indian High Court cancelled all forms of waqf which granted the right of admission to their waqf providers and their families. Such actions support the allegations by Sir Stanley Alderly, one of the members of the House of Lords who has embraced Islam, that the Indian Government deliberately deceived the people even though they are aware of a waqf institution that exists and certifies under the Islamic Law.

                   The status of the waqf institution can be seen to be more severe in Turkey in its modern times. Under the reign of Kamal Atartuk, many parliamentarians made the abolition of waqf institutions as an agenda in their focus during the 1931 general election; It was created and implemented with the aim of rapidly gaining wealth through the sale of waqf of so many properties in Turkey. In 1937, a committee was established to waive institutions in Turkey systematically. Tenants of land and building waqf have been ordered to buy the properties at high prices. If the tenant fails to pay the offered price, then the waqf property will be auctioned, and the government will take the result. The cash waqf institution abolishes in 1954 through the establishment of Awkaf Bank. The law passed in 1967 required the istibdal process to exchange all cash waqfs into the form of bank shares. These actions and abolition have finally abolished the institution of waqf in Turkey, both property and waqf cash. Meanwhile, the scope and role of waqf have significantly narrow in other Islamic countries such as Egypt, Libya, Kuwait, Tunisia and Syria have also been. The special waqf disbands because it was considered anti-social and uneconomical.

                  The impact of British immigration in Malaysia which began in 1786 has also had a profound effect on the conduct and practice of waqf. Although the enforcement of the English Law Enactment and Ordinance Ordinance does not involve matters about the customs and religions held by the Malays, evidence indicates the presence of British interference in religious issues including waqf. In 1885, for example, the Civil Court adopted the English Law as the basis of issues involving waqf. The English law denies the concept of continuity, which constitutes an essential foundation in the establishment of waqf under the Islamic Law. Periods and recipients need to be clearly defined to enable waqf to fulfil the aspects of charity and religion as prescribed under the English Law. The effect of adopting the English Law has resulted in many waqf properties cancel as happened in the states of Johor, Penang, Kedah, Kelantan and Terengganu. The Syariah Courts have no authority and jurisdiction to hear and determine issues related to waqf. It is because even though waqf is included in the Islamic legislation as provided in the State Administration Enactment and List II, Schedule 9 of the Federal Constitution, but waqf is still regarded as part of the trust that is governed by the Trustee Act 1949. Relevant matters may only be heard and determined by the Malaysian High Court and the High Court of Borneo only.

                 Involvement by the Western countries has clearly had a significant impact on the daily lives of colonised Muslims. The policy succeeded in changing the attitudes and views of the Muslims to the extent of practising Western practices. According to Professor Dr Syed Othman Al-Habshi, though Muslims have escaped the political shackles of politics, their thoughts and views are still under attack by the invaders. The Muslims themselves, for instance, consider that many of the things originating from Islam are no longer suitable for application in the life of this modern society. Professor Hassan Langgulung mentioned that if the country in the third world is free or released, in practice, these countries only acquire national flags and songs, whereas in life they are the language and their thinking still dominate by this giant (Western state) system.

               Furthermore, the forgetting of Islamic countries itself to imprison Islamic institutions after obtaining independence has made Islamic institutions including waqf increasingly marginalised. In the context of their waqf, for example, the Muslim community generally recognises the concepts of the trust fund, endowment, foundation, estate planning and charitable fund which are all based entirely on the concept of waqf borrowed by Western society. The Muslim community also knows more about the University of Harvard, Oxford and Cambridge than the University of Al-Azhar in Egypt who have used the concept of waqf in the management and administration of higher education since its inception in 975 AD. This has caused Islamic institutions to either live their names, face various administrative and administrative problems or not implemented according to appropriate methods.

                     Its implication, today's waqf is understood and seen in a context that is so narrow, not modern, uneconomical, anti-social and is only summarised in specific specialities of affairs such as performing prayers of worship, fasting and the like. This situation is the same as the beliefs and views of Muslims today on the definition of jihad which is only narrow to the struggle on the battlefield. According to Prof. Dato 'Dr Nik Mohd Zain Haji Nik Yusof, the knowledge of Muslims on the waqf property is very limited has caused the reluctance of the people to glorify the development of waqf properties until they are at an undesirable level. Endowments are only associate with graves, abandoned lands, mosques and madrassas. This has directly influenced the pattern, practice and management of the Muslims in the welfare. In Malaysia, in 1994 for example, out of a total of 11,196 acres of land reserved, 79.6% or 8,196 acres were graves, mosques and madrassas. Total revenue collected in 1992 was only RM5,556,467.20 as compared to the expenditure incurred to administer the property of RM5,903,648.91. A total of 5,684 hectares of land worth a total of RM500 million is still idle and not developed. There are also Muslim societies who consider waqf only to be able to do if the individual has vast land, a large building or much money. External parties with financial capabilities such as banks, capitalisation and development agencies and private companies refuse to finance waqf property development projects that are considered to have limitations on the legal and institutional limitations. They are worried that the investment will affect property rights and profitability.

               The understanding, interpretation and such views, as well as the absence of a good model for follow-up examples, especially among Islamic countries, continue to erode the greatness of nostalgia and the role of waqf ever in the days of Islamic majesty to be applied among the Muslim community today.

 

 

Dr. Razali Othman

Director

Center for Management of Waqf, Zakat dan Endowment (WAZAN)

 

 

 

 

 

 

 

 

 

Date of Input: 01/10/2018 | Updated: 04/10/2018 | m.jazmi