Waqf: Appendix B - The Shariah Basis for the Standard

Transcription

1. Shari ’ah Standard No. (33): Waqf Appendix (B) The Shari’ah Basis for the Standard ■ The basis for considering Waqf (in principle) as a permissible and recommendable practice (Mandub) is the Quranic Verses which instruct people to do good and spend on charitable causes, and also the Hadith (Prophetic tradition) which indicates: “When a person dies his rightful deeds will stop except in three respects: An ongoing charity “Sadaqah Jariyah...”. Waqf is considered to be the ongoing charity referred to in the Hadith, because the beneficiary does not own the Waqf asset, and accordingly, cannot dispose of it. Moreover, there is the Hadith about the piece of land in Khybar which Umar donated as Waqf, when the Prophet (peace be upon him) advised him to do so. Again, permissibility of Waqf is supported by the practice of the Sahabah (Prophet’s Companions) like Uthman and Abu Talhah, in addition to Ijma’ (consensus (consensus of Fuqaha Fuqaha). ). Waqf for charitable purposes can also be justified through Qiyas (analogical deduction) in comparison to Waqf for mosques. Enforceability of the Waqf when it is indicated by a donor in his will, stems from the fact that according to Shari’ah a will should be executed, and its alteration or cancelation is strictly prohibited. ■ Family Waqf ((Waqf Waqf ahli or Dhurri Dhurri)) is permissible on the basis of the Hadith about Umar’s Waqf, and because family Waqf is, in fact, a charitable Waqf since it will finally become so. ■ Acceptance of the Waqf is not a condition for its validity when the beneficiary is not specified, because acceptance cannot be expected in this case. In case of a specific beneficiary, acceptance can be obtained from him even if implicitly when he keeps silent. The ruling that when the beneficiary rejects the Waqf his rights in the Waqf shall be dropped, whereas the Waqf should still remain valid, is based on the viewpoint of 831
2. Shari ’ah Standard No. (33): Waqf the Hanafi School of fiqh. The justification here is that the beneficiary can drop his own rights in the Waqf, but he cannot nullify the Waqf itself. ■ Waqf inception can be subject to any form of disposition which traditionally indicates it, because traditions are usually recognizable, when they do not contradict with Shari’ah rulings. ■ Permissibility of temporary Waqf is based on the viewpoints of the Maliki and the Imami Schools of Fiqh, in addition to what has been reported about the viewpoint of Abu Yusuf of the Hanafi School. Such viewpoint is based on the fact that a temporary Waqf can also fulfill its charitable objectives and result in two benefits: one of them is the benefit generated from Waqf throughout its specified period, and the other is the benefit to the Waqif since he may need his property in the future. Moreover, permissibility of temporary Waqf could encourage Waqf practicing, and, hence, contribute to fulfillment of the present need for charitable institutions. ■ Permissibility of declaring Waqf as effective starting from a future date can be viewed in terms of analogy between Waqf and Wasiyyah (will). ■ The ruling that the Waqif should have full legal competence is based on the fact that Waqf in its very essence is a donation (Tabarru’ (Tabarru’), ), and therefore, the Waqif should have full legal competence. ■ Prohibition of Waqf by a person who is legally restricted for irrationality, aims at safeguarding his creditors, his own self, and his dependants. There is no harm, however, when the irrational person declares the Waqf for himself. As regards the Waqf by a person who is suffering a fatal illness, it should be subject to the rulings applicable to the will of such person. ■ Permissibility of retreating from Waqf, unless it is a mosque, is the Hadith that has been narrated by Abdullah Ibn Umar and Umar’s Hadith, as well as Qiyas (analogical deduction) to ’Ariyah (a lent thing). ■ The basis of the ruling that Waqf should not be for an impermissible purpose while it can be for non-charitable purposes, is that Waqf is a donation (Tabarru’ Tabarru’), ), and therefore, the only Shari’ah condition to be observed in it is permissibility of the purpose for which the donation is made. This viewpoint belongs to the Maliki School, whereas the Hanafi School is of the opinion that the Waqf purpose should be charitable. 832
3. Shari ’ah Standard No. (33): Waqf ■ The ruling that Waqf can be made for a person who is nonexistent at the time of establishing the Waqf, is based on the Hadiths narrated about Waqf for progeny, and on the fact that Waqf is an ongoing charity and therefore it should include those who will exist in the future. ■ Waqf is said to have a legal personality and financial liability which are quite independent from those of its superintendent, because Waqf can give and take commitments. When, for instance, the Waqf superintendent borrows money for the Waqf, the debt obligation does not fall on him but rather on the Waqf itself. Similarly, when the beneficiary fails to fulfill his obligation towards the Waqf, he becomes indebted to the Waqf, rather than to the Waqf superintendent. Therefore, in this case, the Waqf superintendent has no right to relief the debtor from the debt. ■ The ruling that Waqf donation should not exceed one third of the donor’s wealth, is based on the analogy between Waqf and Wasiyyah (will), where part of the wealth should be left to the inheritors of the deceased (the obligatory entitlement as per Shari’ah). This has been explicitly referred to in the Egyptian Law of Awqaf. ■ Permissibility of making Waqf in the form of moveable property, regardless of its nature and even if such property is not survivable, is based on the ruling practice during the era of the Prophet (peace and blessings be upon him) and the orthodox caliphs with respect to making Waqfs for mosques. The majority of Fiqh scholars also support this viewpoint; whereas the Hanafi scholars hold that Waqf of moveable property is permissible only when it is the normal practice. ■ Money can be donated as a Waqf because this is the original form of Waqf, as emphasized by Muhammad Ibn Abdullah Al-Ansari the companion of Imam Zafar and supported by Ibn Taymiyyah. Shares and Sukuk come under this type of Waqf. ■ A usufruct can be donated as Waqf, because it is wealth, and hence it should be subject to the general rules of Waqf. The fact that a usufruct is temporary does not affect this ruling since Waqf can also be temporary as has been indicated earlier. ■ The ruling that permissible conditions of the Waqif shall be observed (including the ten conditions), is based on the Hadith which states: 833
4. Shari ’ah Standard No. (33): Waqf ■ ■ ■ ■ ■ ■ ■ “Muslims are bound to the conditions they make”. make”. In the last part of it, this Hadith implies that the donor’s condition which has to be observed should not be in contradiction with the Shari’ah “…except a condition that permits what has been prohibited or prohibits what has been permitted (by Shari’ah).” The basis for appointing a superintendent for the Waqf is the Hadith which indicates that: “There is no misdemeanor (Junah) on the one who is in charge of it” it”,, and because interest necessitates the presence of someone who takes care of the investments of the Waqf assets, collection of the Waqf ’s income and distributing it among beneficiaries. The Waqf superintendent has to observe the conditions of the Waqif because Waqf is a donation (Tabarru’ (Tabarru’), ), and therefore, it can be subject to conditions according to Shari’ah. As regards observation of the rules of Shari’ah, the reason is obvious. The basis for depriving the Waqf superintendent the right of leasing the Waqf to himself or his son (without resorting to legal authorities) is the fear from favoritism which is part of human nature, and therefore prohibition of such leasing arrangement would minimize the chance for neglecting the interest of the Waqf. The ruling that a Waqf property shall not be lent is based on the fact that lending the property will reduce the chances for its investment. Borrowing for the Waqf is restricted to the case of acute need, and not allowed for spending on the beneficiaries, because borrowing is meant to safeguard the Waqf against the harm of being useless, whereas refraining from payment to beneficiaries when there is no Waqf income does not involve such harm. Permissibility of combining Waqf resources is based on the fact that it could lead to the benefit of the Waqf, and that all Waqf properties are devoted for the Sake of Allah, Glory be to Him. However, appropriate allocation to the different beneficiaries of the combined Waqf assets should be duly observed so as not to cause harm to such beneficiaries. The General Council of Fatwa of Kuwait issued a Fatwa (Shari’ah opinion) permitting transference of the excess income of a mosque to other mosques. The condition pertaining to the need for judiciary supervision on the Waqf is based on the desire to ensure the achievement of the interests of the 834
5. Shari ’ah Standard No. (33): Waqf ■ ■ ■ ■ ■ stakeholders, and perform the role of Hisbah (a Shari’ah regulatory body). The first person who arranged judiciary supervision on the Waqf was Tawbah Ibn Namir, the judge of Egypt in the early Islamic era. The ruling that Waqf assets should not be leased for less than the normal rent of similar assets (while minor injustice could be accepted) is based on the desire to avoid favoritism and waste of Waqf income. This viewpoint enjoys unanimous agreement of Muslim Fiqh scholars. The viewpoint regarding termination of the contract when the normal rent of similar property increases and the Waqf tenant refuses rent increment belongs to the Hanafi School, contrary to the Maliki and Shafi’i Schools who hold that the contract should not be terminated if the lease contract is for a specific period. Permissibility of the forms of Waqf leasing which have been indicated in Fiqh references is based on the desire to preserve the interests of the Waqf as well as the interests of all its tenants, without causing injustice to any party or neglecting the interest of the Waqf property. Permissibility of application of modern financing techniques which have been developed by Institutions rests on the fact that such forms are in conformity with the usual forms of land leasing and cultivation. Such modern forms could even generate more income than the traditional ones, and achieve the goals of preservation and security of the Waqf assets. Permissibility of making a reserve fund for maintenance and renovation of the Waqf is based on the desire to preserve the Waqf assets and their ability to generate income, as has been emphasized by a number of Fiqh scholars. Istibdal (exchange of the Waqf asset) is permissible because it achieves the interest of the Waqf, through its development and maximization of its income. 835
6. Shari ’ah Standard No. (33): Waqf Appendix (C) Definitions Waqf Making a property invulnerable to any disposition, and donating its income for charitable causes. The term Waqf is also used to describe the property donated in this manner. Waqf Ahli (Family Waqf) The income of the donated assets or usufructs goes in this case to the Waqif himself, his children, a certain number of people, or a specific entity, for a specific period. Waqf Khayri (Charitable Waqf) The income of the donated assets or usufructs goes to charitable purposes without specifying a certain entity or a specific group of people as beneficiaries. The Waqf could be eternal or temporary. Waqf Assets The property used for generating income, while it cannot be disposed of. Hikr or Tahkir A lease contract according to which the Waqf land is kept in the hands of the tenant to build on it or cultivate it as long as he pays the normal rent for such property. Hikr or Tahkir can also take place through utilization of the Waqf land by leasing it for a specific purpose without specifying the period, and thus, the tenant obtains the right to stay, subject to a valid contract. A third form of Hikr or Tahkir can take place implicitly when the land is leased for a specific period, and then the tenant build on it or cultivate it after obtaining the permission for that. In this latter case, when the lease period expires, and the tenant wishes to stay and pay the rent equivalent to that of similar property, he can be allowed to do so, in order not to cause harm to 836