Religious view on MUIS creating a wakaf

Background

1. This religious guidance (irsyad) provides a clarification on whether a legal entity, such as the Islamic Religious Council of Singapore (MUIS), can create a wakaf.

2. According to AMLA “a wakaf is a permanent dedication by a Muslim of any movable or immovable property for any purpose recognised by the Muslim law as pious, religious or charitable.”¹

Religious position and guidance

3. The principles of wakaf are clearly established in the Islamic tradition. These include the following: the wakaf must be perpetual, irrevocable, and can be effected.²Each wakaf has four pillars: the donor, the asset, the declaration, and the beneficiaries/recipient.³ If these principles and pillars are fulfilled, the wakaf is considered valid irrespective of the specific instruments or operational models employed to administer it.

4. In order to ensure the proper management and care of wakaf assets and properties, they can be entrusted to a designated entity for management purposes.⁴ This practice stems from the principles of stewardship to ensure responsible administration of resources for the greater good. The entrusted entity assumes the role of custodian, safeguarding the wakaf assets, making prudent investment decisions, and distributing the generated income in accordance with the donor's objectives. The entity ensures the perpetuation of the donor's charitable legacy and that the intended beneficiaries continue to benefit from the wakaf.

5. Shāfiʿī scholars have emphasized that the authority, commonly referred to as the ḥākim, is the rightful authority to regulate wakaf matters, especially when they pertain to the general fund and/or public interest.⁵

قال الرافعي: والذي يقتضي كلام المعظم الفتوى به أن يقال: إن كان الوقف على جهة عامة فالتولية للحاكم.

Which means: “Al-Rāfiʿī stated: The majority opinion is that if an endowment (wakaf) pertains to a public interest, the (religious) authority should be entrusted to manage it.”⁶

6. Furthermore, Shāfiʿī scholars assert that the authority may create a wakaf utilizing resources from the public treasury (Baitul Mal):

جواز وقف الإمام شيئًا من بيت المال، وهو ما أفتى به كثيرون؛ منهم ابن أبي عصرون والمصنف، وقال في المطلب: إنه المذهب

Which means: “It is permissible for the Imam to create a wakaf from the Baitul Māl. And this is the opinion of many ˹Shāfiʿī˺ scholars, amongst them Ibn Abī ʿAṣrūn and the author (al-Nawawī). And it is mentioned in Al-Maṭlab (Al-Juwaynī's book Nihāyah al-Maṭlab), it is the view of the ˹Shāfiʿī˺ mazhab.”⁷

Permissibility for the creation of waqaf by MUIS

7. MUIS may be considered to be a legal entity (Shakhṣiyyah Iʿtibāriyyah) recognised under Islamic law, as it has legal rights and obligations (ahliyyah wa al-zimmah)⁸ and is not owned by any particular individual.⁹ Accordingly, MUIS can establish its own wakaf or manage wakaf properties, for the betterment of the community, in accordance with the juristic views outlined above.

8. Although a legal entity can create a wakaf, the ownership of the endowed asset does not belong to the donor (al-wāqif) or to the beneficiaries (al-mawqūf ‘alayh); rather, it is considered as the property of God.¹⁰ In other words, the donor (al-wāqif) or the trustee (al-mutawalli) does not possess independent discretion in managing the wakaf. Instead, they are bound by religious principles and considerations in its administration.

9. In the context of Singapore, the role to ensure that religious principles are observed, whether in matters relating to wakaf or on any other Islamic matter, is fulfilled by the Fatwa Committee. As such, certain decisions pertaining to the management of wakaf assets may fall under the purview of the Fatwa Committee as the final arbiter in how these wakaf assets ought to be managed.

SEPTEMBER 2023

OFFICE OF THE MUFTI

ISLAMIC RELIGIOUS COUNCIL OF SINGAPORE (MUIS)

[1] Section 2 AMLA, (2020 Revised Edition).

[2] Al-Nawawī, Rauḍah al-Ṭālibīn, (Beirut: Al-Maktab Al-Islāmī, 1991), vol. 5, pg. 325-331.

[3] Al-Zarqā, Aḥkām al-Awqāf, (Amman: Dār 'Ammār, 1998), pg. 38; Al-Zuḥaylī, Al-Fiqh Al-Islamī, (Damascus: Dār al-Fikr, 1985), vol. 10, pg. 7624.

[4] Al-Zuḥaylī, Al-Fiqh Al-Islamī, (Damascus: Dār al-Fikr, 1985), vol. 8, pg. 231.

[5] Al-Shirbīnī, Mughnī al-Muḥtāj, (Beirut, Dār al-Kutub al-'Ilmiyyah, 1994), vol. 3, pg. 552.

[6] Ibn Qāḍī Syuhbah, Bidāyah al-Muḥtāj, (Jeddah: Dār al-Minhāj, 2011), vol. 2, pg. 473.

[7] Ibn Qāḍī Syuhbah, Bidāyah al-Muḥtāj, (Jeddah: Dār al-Minhāj, 2011), vol. 2, pg. 449.

[8] Al-Zuḥaylī, Mausūʿah al-Fiqh al-Islāmī, (Damascus: Dār al-Fikr, 2012), vol. 10, pg. 21; Ali Gomaa, Wa Qāla al-Imām – Al-Mabādi’ Uẓmā, 140; Alī al-Qarādāghi, Athār al-Ikhtilāf, 210.

[9] According to Al-Sanhūrī, Shakhṣiyyah Iʿtibāriyyah is the granting of qualifications from a legal point of view to a company or similar, by recognizing its responsibilities as independent and separate from the qualifications and responsibilities of the members of the company, as well as having specific financial responsibilities for them. Please see: Al-Sanhūrī, Al-Wasīṭ Fī Syarḥ al-Qanūn al-Madanī, vol. 5 pg. 228.

[10] Original text in Arabic:

"الموقوف ملك لله تعالى، أي ينفك عن اختصاص الآدمي كالعتق ، فلا يكون للواقف ولا للموقوف عليه."

Which means: “The endowed asset belongs to Allah (s.w.t), which means it is removed from human ownership, such as emancipation. Therefore, it does not belong to the donor (al-wāqif) or the beneficiaries (al-mawqūf ‘alayh).” Please refer to: Al-Jamal, Ḥāshiat al-Jamal Sharḥ Manhaj al-Ṭullāb, (Beirut: Dār al-Fikr), 3:587.