Socio-Legal Significance of Family Waqf in Islamic Law: Its Degeneration and Revival

Abstract

From a Shari’ah perspective, no essential difference is noticed between public welfare waqf and a waqf created for the benefit of individuals such as descendants and family of a person, and both are treated as recommended avenues for voluntary gratuitous transfer of benefits. Over the centuries, family awqaf have degenerated due to various social and political factors. Under the influence of the English law that regards family trusts as non-charitable, family awqaf have been treated as non-charitable institutions, and have been deprived of the privileges and immunities granted to charitable awqaf. In this context, the current article discusses the essential nature of such awqaf with regard to their position in Islamic law and history as well as their social significance, and attempts to shed light on the degeneration that took place in the recent past, while exploring means of revival. It finds that the creation of endowments for specific beneficiaries such as waqf for those related to the endower is a recognised form of charity in Islamic law, that function as public serving entities directly or indirectly. Issues encountered in such awqaf do not necessitate denying their multiple advantages. Providing the necessary legal regulation and administrative framework as well as tax exemption for all awqaf could go a long way in promoting the cause of waqf.

Proposed temporary waqf model for family waqf implementation in Malaysia

“…There is no significant distinction between the public and posterity waqf in Shariah. Like other forms of waqf, family waqf is important because it ensures the economic stability of the settlers' progeny for future endeavours (Sadique, 2017a). However, dating back to the history of the waqf institution in the 19th century, most Muslim countries have deteriorated and abolished the position of family waqf.…”

“…Although family waqf has been briefly listed in many waqf jurisdictions, there are obstacles to its implementation because of its long lifespan, for instance, the absence of legislative supervisory control over family waqf and mismanagement. The lack of family waqf management blocks the land from entering the market (Abdul Samad et al, 2021;Sadique, 2017a). This issue is exemplified by the judicial system's incompetence and state governments' contribution to the mischief and mismanagement of this situation.…”

“…According to some scholars, family waqf may be an instrument in preventing wealth accumulation, which also hinders the misuse of properties by a single party (Sadique et al , 2016b). For instance, the reason for practising family waqf in Zanzibar instead of being inherited in a traditional Quranic forced-shared scheme is that family waqf is an intended mechanism to stop family members from living beyond their income and in extravagance (Lienhardt, 1996).…”

Revitalising the Management of Family Waqf: A Way Forward

“…Besides, Saadique suggested an investment-oriented base for the management of Family Waqf, which is managed by other authorities as a third sector apart from the state. This will keep its decentralization nature of waqf and work in a limited duration of time, such as 60 years which upon the expiry, the ownership of waqf will be returned to the endower or their heir [28].…”

Zurri Waqf Reporting: Preliminary Findings on Reporting Practices

“…This shows that the presence and implementation of waqf zurri in Malaysia is still important today. Having said that, with regard to the new developments related to zurri waqf in Malaysia under the Islamic Services and Securities Act Labuan 2010-2012, Muslims are permitted to use the Labuan International Waqf Foundation (LIWF) to set up a trust unit based on the concept of zurri waqf (Sadique 2018). Thus, Muslims intend to implement zurri waqf can use the LIWF service to assist them in the implementation of zurri waqf to ensure that the benefits reach qualified recipients.…”