Waqfs in Malaysia and Singapore
The Malay states were colonised by European powers in the early sixteenth century beginning with the conquest of Malacca by the Portuguese. The Portuguese were later on replaced by the Dutch who were themselves replaced by the British. The colonial rule by these powers came to an end in 1957 when independence was declared. Malaysia, today, comprises of 13 states and federal territories and since every state has its own laws concerning the waqfs, it is very difficult to view the Malaysian waqf system as a coherent whole.
It has been asserted that four centuries’ long colonial rule has reduced Islam from being a comprehensive mode of life into being merely a religious belief in Malaysia. The secularist perspective that “mundane matters of everyday life should not be influenced by religion” was put into practice by the British who confined the sultans’ authority to matters of religion and culture and took charge of general administration, security, law and order, finance and education. It is only natural that the Malaysian waqf system should also be affected by these developments.
Under the relentless pressure of Western colonialism and secularism, Malay Muslims were seriously concerned about maintaining their religious beliefs and considered mosques as centres of resistance. Mosque building and their maintenance through the waqfs, therefore, assumed great importance. Consequently, it is not surprising that most Malay waqfs were established for building and maintaining mosques and cemeteries and only rarely for educational purposes (Alhabshi, 1987: 121).
Legal Issues
The forces at play elsewhere in the colonised Islamic world were also felt in Malaysia. As in India, where the British desiring to establish private ownership of land had introduced the well-known “permanent settlement” in 1793, in Malaysia also, the British target was to introduce private ownership of land. This plan was put into practice in the year 1870, considerably later than in India, under the so-called Torrens system. This system divided the entire land through cadastre surveys into privately held property. Each lot was numbered and could be freely sold and bought and was subject to taxation.
In time, due to the Islamic law of inheritance, fragmentation occurred. Some owners, realising the futility of managing such smallholdings, simply endowed these lands in the hope of keeping them together and getting some benefits in the hereafter. In short, when Malaysian Muslims realised their private land holdings were being excessively fragmented they, like the Indian Muslims, resorted to the only way they knew and began to establish family waqfs.
It goes without saying that the colonial policy in Malaysia also was to purchase the fragmented land from the local landowners to form plantations. But formation of family waqfs constituted a major impediment to land fragmentation and frustrated British attempts to purchase land, hence the British hostility to these waqfs.
For the British, the way to remove the family waqf obstacle in Malaysia was already well known. The 1894 Privy Council case (Abdulfata vs. Russomoy) in response to an appeal from India had already declared family waqfs invalid. So, it was a simple matter to declare the validity of this decision for Malaysia as well.
This was done in 1911, when the Waqf Prohibition Enactment was promulgated. The Articles 3, 4 and 5 of the Enactment, 1911 directly targeted the inalienability of waqf lands (Ibrahim, 1983: XIX). The impact of the enactment was as follows: while it preserved private waqf lands, which were created prior to that date, the full ownership of these were now deemed to be vested in their beneficiaries. In short, these waqf properties were divided among the beneficiaries and thus converted into private ownership in conformity with the general British policy described above. Meanwhile, section three forbade the freezing of ownership of lands, thereby effectively prohibiting the establishment of any new waqf. Thus with the introduction of the British rule, the Malay Muslims lost the freedom to declare their lands waqf and this situation continued all the way until 1978 when this enactment was finally repealed (Ibrahim, 1983: XIX, XX).
The whole process of declaring family waqfs null and void in Malaysia was based upon the notion that the rulings of the Privy Council in response to appeals from India would be valid for all the countries of the Common Wealth. Such an assumption constitutes an Achilles’ heel in this controversy and Muslim jurists did not fail to concentrate their attack precisely on this point. In other words, we have here the important question of whether there was juridical unity in the British Empire and whether a decision of the Privy Council pertaining to a certain region could be held valid elsewhere in the Empire.
This is a difficult and a controversial problem. Professor Ahmad Ibrahim, a leading Malaysian jurist, has criticised the Malaysian Federal Court, which held in at least two cases in 1970 and in 1980 that the decisions of the Privy Council from India should be followed. The 1970 decision was based on the nineteenth century cases and had held that -
“A waqf for the benefit of the settlor’s family, children and descendants and for charity will only be valid if there is a substantial dedication of the property to charitable uses at some period of time or other”
Sheikh Muhammad Ahsanullah Chowdhry v. Amarchand Kundu (1889).
“Such a waqf will not be valid if the primary object is for the aggrandisement of the settlor’s family and the gift to charity is illusory either because of its small amount or its uncertainty or remoteness of objective”
Abdulfata v. Russomoy (1894)
In both of these cases the question was whether there was a valid charity or not. In still another case Mujibinissa v. Abdul Rahim, Lord Robertson summed up the situation as follows:
“The waqf will be valid if the effect of the deed is to give the property in substance to charitable uses. It will not be so if the effect is to give the property in substance to the testator’s family.”
In a 1951 case, Fatuma binte Mohamed bin Salim v. Mohamed bin Salim, The Privy Council had again affirmed its 1894 decision on the famous Abdulfata’s case that the scope of the decision was not confined to India only. Lord Simonds, in this case, had held that
“ … the experienced judges of the Court of Appeal for Eastern Africa did not doubt that on a question of Muhammadan Law, decisions of the Privy Council in appeal from India must bind them in appeals from the High Court in Zanzibar … this was clearly the correct view and that it must prevail also in appeals from Kenya”.
Based upon the above, the Lord President (of the Federal Court of Malaysia) Azmi L.P. ruled that Malaysian courts should also be bound by the judgement of the Privy Council in response to an appeal from India.
But the issue is by no means settled. For, it has been held in many jurisdictions that despite the views of Lord Simonds, the decisions of the Privy Council are not necessarily binding in countries, other than that in which the appeal arose. Consider for instance, the Ceylon Supreme Council case of Jane Nona v. Leo where it was ruled that a decision of the Privy Council in an appeal from another country was a “non-binding Privy Council decision” and does not have the force of a binding authority in this country unless and until it is accepted by this court” (Ibrahim, 1971: VIII).
This implies that the decision of the Privy Council on the Abdulfata v. Russomoy would be valid only for India and that the Privy Council can be regarded as a Malaysian court only if it is hearing an appeal from Malaysia. If it is hearing an appeal from another Commonwealth country, it is a court of that part of the Commonwealth and not a Malaysian court (Ibrahim, 1971: VIII).
Furthermore, Ahmad Ibrahim has criticised the Federal Court for not “attempting to escape from subservience to the Privy Council and apply the pure Islamic law and texts”. According to Ibrahim, the Federal Court could and should have done so due to two sets of reasons. First, the general reasons:
The Muslim law is administered in India in the ordinary courts and there are no separate Shari’ah courts
In Malaysia, on the other hand, Muslim law (of the Shafi’i school) is the law of the land and it is administered in the Shari’ah courts. This was confirmed in the Ramah v. Laton case
Rulings on Muslim law can be given by the Mufti
Any ruling, shall, if the Majlis so determines or if his Highness the Sultan so directs, be published by notification in the Gazette and shall thereupon be binding on all Muslims resident in the state. And more specifically;
Whereas the Administration of Law Enactment of Trengganu (A state of the Malaysian Federation) distinguishes between public waqfs, waqf am, and family waqfs, waqf khas, (thus implicitly accepts the validity of both) the effect of the Privy Council decisions is that only the former is valid and not the latter.
The Court should have treated with respect the fatwa issued by the Mufti of Trengganu, as being the opinion of the highest Muslim legal official in Trengganu.
In spite of the views of the Privy Council where it was stated that the differences existing among the Shafi’i and Hanafi and other sects has no present significance, there is a difference between the Shafi’i and Hanafi views in the matter. …. A Shafi’i waqf may be created for the benefit of the beneficiaries, as a waqf khas, without ultimate dedication to charity at all.
Islamic law is not interpreted in the same way in Malaysia as in India. As it is well known, the Privy Council was dealing with waqf according to its own interpretation of the Islamic law and not in reference to any special legislation dealing with waqfs.
Despite the above, the Federal Court chose to ignore the pure Islamic law and text and decided to follow the law as developed in India. Ibrahim argues that the law could only be corrected by legislation. This process of correction appears to have started in the early 1950s.
But the first significant “correction” was introduced by the Islamic Waqf Validating Enactment, 1972. What the enactment did, however, was merely to declare that a waqf will not be held invalid because:
The waqf is for the maintenance and support of the settler’s family
In the case of the Hanafi sect, the waqf is for the founder’s maintenance and support for his/her lifetime and for the payment of his/her debts … provided that there is an ultimate gift for the benefit of the poor …
The ultimate benefits reserved for the poor … is small or postponed until the total extinction of the founder’s family
The waqf is for the benefit of the strangers, i.e., persons other than the family of the founder.
Yet, despite the fact that family waqfs have been thus, at last legalised, the actual establishment of a new family waqf has been made extremely difficult. Indeed, it is provided in Selangor, Kelantan, Pahang, Negri Sembilan, Malacca, Penang and Kedah that every family waqf, waqf khas, shall be void unless:
The ruler (in Malacca and Penang the Yang dafi-Pertuan Agong) shall have expressly validated it or
It was made during a serious illness from which the maker subsequently died and was made in writing by an instrument executed by him and witnessed by two adult Muslims (the witness conditions are complicated and differ from state to state).
But even this incomplete law had some positive effects for Malaysian waqfs. For, the Federal Court declared that the validity of a waqf must be determined with reference to the Islamic Waqf Validating Enactment, 1972 and as intended by the Legislature, in accordance with pure Islamic law uninfluenced by the English concepts of charitable trusts and the rules against perpetuities. Thus, with the 1972 enactment, Malaysian courts were given the authority to rule according to pure Islamic law.
It is precisely this point, which Ahmad Ibrahim finds so frustrating. For, although this authority exists, the Federal Court, despite its own above-mentioned declaration, still chose to examine the Indian cases. According to Ibrahim, the Federal Court seems to think that pure Islamic law is embodied in the writings of the Indian jurists like Ameer Ali, Tyabji and Fyzee as well as in the decisions of the Indian courts. This is, of course, not always true. For, these jurists were authorities in what is known as Anglo-Muhammadan Law, a body of law, as mentioned above, much influenced by British law. Ibrahim therefore demands that the Federal Court of Malaysia should rely on the Islamic law and not the hybrid Anglo-Muhammadan law as developed in the Indian courts and in Privy Council. Ibrahim criticises the civil courts of Malaysia as well, on the grounds that they do not give due respect to the views of the Mufti and demands that “such views deserve the same respect as that accorded to the views of the Privy Council”.
Thus, we deduce the following points from Ahmad Ibrahim’s work:
Malaysian courts are still under the influence of the British law
As far as Islamic affairs are concerned, the reference point is the decisions taken by Indian courts
The Indian courts, however, are known to have participated in the development of the Anglo-Muhammadan law, which was in turn heavily influenced by the British law and the decisions of the Privy Council
A reaction has set in. Leading jurists of Malaysia are questioning the validity of the decisions of Indian courts for Malaysia and, more fundamentally, questioning the legitimacy of the Anglo-Muhammadan law altogether
They demand that the decisions of the Muftis and pure Islamic law should be given the same respect as the Privy Council decisions.
Though incomplete and criticised, the Islamic Waqf Validating Enactment of 1972 reconfirmed the legitimacy of the family waqfs in Malaysia (The original legitimisation had occurred by a series of laws enacted during the fifties and sixties in various states).
Finally, a conflict between the Islamist jurists led by Ahmad Ibrahim and British trained secularists seems to prevail in Malaysia. The Islamist view demanding the administration of pure Islamic law in independent Islamic courts, implies a dual legal system. To what extent such a dual system (Islamic and secular) can be applied with all of its complications in a country populated by three distinct religious groups constitutes a dilemma. Recent research has revealed however that, due to intense political pressure, substantial progress has already been made and two parallel, relatively autonomous systems have emerged (Horowitz, 1994: 236- 238).
Source: Murat Cizakca, A History of Philanthropic Foundations: The Islamic World From the Seventh Century to the Present. Republished with permission.
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