Fatwa On Waqf : Specialized Analysis In Hand Over Of Waqf Lands by State Authority

This paper tries to analyze the fatwa regarding issues of hand over of waqf lands to the State Authorities which have been going on since the year 1951 to 2006. Though it may only focus on several states in Malaysia, such revelations can act as strong exemplary of the current and overall fatwa that has been issued by the authorized party. This is due to the idea that the approaches and development of fatwa are very much similar to each other. However, fatwa regarding the law of hand over of waqf lands by the government are rarely discussed and are often decided by the State Fatwa Committee as well as the National Fatwa Committee. Despite the hand over as an intention for country’s development, the procedures in dealing with this issue are not correctly applied as approved by the Mufti nor is it referred to Islamic State Council or ‘Majlis Agama Islam Negeri’ (MAIN), including the waqf lands entrusted to the Muslim community. This could be the effect of Land Acquisition Act 1960 which stood out more than its counterpart; MAIN, though the latter being the only authorized endowment trustee in Malaysia. This paper addresses various issues on constraints of waqf procedures and suggestions in improving its effectiveness.


A. INTRODUCTION
Initially, all decisions regarding 'fatwa' in Malaysia are seen as official conducts related to Islamic laws.It is placed within the jurisprudence of Malaysia's National Fatwa Council of Islamic matters.This institution also constitutes as a juristical corporation as authorized by the Islamic law states apart from the Islamic State Association, Islamic State Department and the Syariah Court.(Gadut 2003., pg.1)As such, all matters and disputes involving Islamic laws and the divisions of waqf are referred to the Fatwa Committee Meeting.(Ab.Majid and Hj. 2004, pg.92)These enacted laws on state levels have enabled state governments to form a committee that could assist a mufti in administrating 'fatwa' for Council or state governments, (Tapah, 2004, pg.26) in which its association name is assigned according to the state it resides in.For example, in Melacca, it is known as Committee of Syariah, whereas in Kedah, Johor and Terengganu, it is called the Lujnah Committee or Fatwa Committee.

B. METHODS
This paper uses the data related from Committee and the National Fatwa Council as main source and other literatures.It uses normative and content analysis.

Fatwa on waqf lands in Malaysia
In Malaysia, it is known that all fatwa regarding waqf lands are rarely discussed nor decided on by the State Fatwa Committee and the National Fatwa Council, as compared to other prominent issues that the authority gives priority to (Noor Naemah Abd rahman and Ahmad, 2004, pg.4) especially issues involving hand over of waqf lands.This could be due to less occurance of such cases compared to issue that involves public waqf possession such as the usage problem of public and provisioned waqf lands, waqf share, investment in waqf property, selling and acquisition of waqf lands and other related issues as stated in fatwa collections published by State Mufti Department and fatwa that have not been publicized (t.t), pg.31-50).
For example, in a fatwa research done by Nor Naemah in Kelantan (Noor Naemah Abd rahman and Ahmad 2004, pg.4) the issues that are commonly raised about waqf are only limited to the selling of waqf possessions, or using the waqf lands for mosque building.Moreover, it becomes a question whether these waqf lands are deemed as valid from the viewpoint of Islamic laws, as well as other related issues which are classified as redundant.
In examining fatwa authorized by Kelantan's Islamic Council during the years 1995 and 1996, it is found that a majority of fatwa are related to the issue of developing waqf lands such as Istibdal.
Although fatwa regarding Istibdal has been decided on, it only focuses on uneconomical waqf lands which are meant to be sold or traded for a more productive one.The same occurs in states like Terengganu, Kedah, Melacca and Johor as it seldom discuss issues on waqf lands that have been retrieved by the State Authority.

Fatwa regarding waqf lands retrieved by the state authority a. National fatwa council's decision
The issue of waqf lands being retrieved by the Government has started to garner attention from the religious authority.National Fatwa Council commenced on the 22 nd of April 1999, and this issue is discussed in the 46 th meeting of Muzakarah Fatwa Council in which such matter will be placed under the rulings of compliance of waqf lands to an authorized party.(http://infad.kuim.edu.my/modules.php).As discussed, the fatwa or conditions include: 1) Waqf lands are proscribed from change of ownership except for emergencies placed under certain conditions.2) Waqf lands that were repossessed by the Government, will be compensated according to the value of the land that was taken or with another land with equal value or slightly higher in value.3) Waqf lands used for development are exempted from commend conditions; especially lands meant for construction of public amenities such as roads, drainage and electricity substation site and others.4) Waqf lands holding special purposes such as to build mosques, schools and such, an allocated value on certain land divisions must be provided by the responsible party as waqf land replacement that has been taken according to current value to retain the waqf status.For example, in a multi-tiered building, several units are to be allocated for mosque, school and others as intended by the giver of the waqf land.A research done on issues of waqf lands being taken over by PBN has unveiled, that such matters are rarely raised nor is it discussed in the Fatwa Committee's meetings, although PBN has been involved in taking over waqf lands based on a majority of the cases reported.(Rani, 2008, pg.235-237)Such monopoly appears due to lack of concern by the responsible party as this action of taking over is not raised to a Mufti.Research shows that the first decision ever made on such issue was traced back to 1990.All fatwa agreed on before the year 1990 has not discussed this issue, though the takeover of waqf lands in Terengganu was known to happen since 1951.These fatwa can only be found in files on takeover of waqf lands as its records are unorganized and undocumented.
In 1990, State Mufti; Dato' Engku Alwi bin Engku Hj Ambak was said to have given fatwa rulings on the takeover of waqf lands and on the issue of Istibdal through referring to several scholarly books like Mughni al-Muhtaj, Hasyiyah al-Jamal, Nihayah al-Muhtaj.(Refer to Appendix II) This fatwa is amongst the earliest in Terengganu which discusses on the issue of land takeover and can be seen as below: When something has been allocated for waqf, then ownership of the property will automatically be of Allah SWT's.With such knowledge, the person or guardian to this property meant for waqf must protect what has been entrusted to him, by sustaining and maintaining the property, for better utility, as intended by the person who made it as waqf.A guardian of waqf must also endeavour in safeguarding these property under his care so as to not disappoint the intention of the person who made waqf.If it so happens, that an occurrence which could not be controlled by the guardian is to happen towards the waqf property, then by creed, the waqf property can be classified as damaged and the guardian deserves the right to receive a compensation; that is its value.
As decisions are placed, the Fatwa Committee has outlined several guidelines in consent to the takeover of waqf lands by the government.These guidelines are: 1) Waqf lands, which have been repossessed must be replaced with a similar land and pronounced with Sighah Waqf; 2) Lands of rice paddy which, have been repossessed must be replaced with a land of similar form; 3) If lands of the same form exist in nearby surroundings, it is not obligatory to search for its replacement in other surroundings.4) Istibdal is taken into effect when a repossessed land's value retains the value it was paid for.As such, issues on compensation for the land in forms of lesser land width due to inflation of land value will cease.5) Surplus funds from the endowment to buy a waqf replacement can be purchased only from the portion that is meant for the replacement.
Based on the fatwa rulings issued in 1990 by Dato' Engku Alwi bin Engku Hj Ambak; Terengganu's State Mufti, it is clear that waqf lands repossessed by the government are sufficient, and only PBN is found to replace such possession with monetary compensation although MAIDAM is the association responsible in reimbursing it following the designated guidelines.Following this, the Fatwa Committee has deduced a guideline where repossessed waqf lands by the government must be compensated with another land.These substituted lands should be of the same soil and is located in the same vicinity, with equal value to the former.
During the year 1997, the Fatwa Committee has also set fatwa rulings to be given to the Director of Terengganu Land and Mines.The committee proposes that all repossession of waqf lands must be under MAIDAM's subject of approval.This means, without MAIDAM's authorization, the action is considered illegal and in contrary to the Administration of Religious Affairs' Enactment 1986, Section 143.Besides this, the Terengganu Land Administrator will be subject to compensation, either through having the waqf land registered under the name of the Council or otherwise.
"Repossession of something that has been given as waqf is not to be taken as lightly as it was in the past; it has to be authorized by MAIDAM, the sole controller of all waqf, as stated in theAdministration of Religious Affairs' Enactment 1986, Section 143.If it is found that it is illegally approved, a replacement or monetary compensation must be made to the Religious Council, and appropriate actions are to be taken."(A letter from a Mufti to PTD KT (MAIDAM 01-006/14 Sec.9-9-(50) dated November 18 th , 1997).
Apart from the above fatwa, the Terengganu Fatwa Committee has given a ruling that all government lands used for religious purposes hold the same ruling as waqf lands.Waqf lands must be maintained in any circumstance.However, in the event of urgency and public interest is dominant, then the land can be repossessed with the condition of compensation.MAIDAM on the other hand, must take effort in replacing the waqf land with another.(Refer to file on Waqf Land Repossession 03-003 (34).) Whereas, concerning cemetery lands, the Fatwa Committee has decided not to remove it even for developmental purposes.Any land burial site must be preserved as it is.The fatwa states: (http://infad.kuim.edu.my/modules.php ) Muslim cemetery sites must not be demolished as it contradicts with the teachings of Islam; in which Islam has taught its people to respect and protect other (deceased) Muslims, as to how it was during their lifetime as mentioned in the books of Fiqh.Moreover, the burial site where one (deceased) is kept is now considered his property.Thus it is forbidden to trespass the burial site either for the purpose of handling, disinter the grave or others.
A Muslim's cemetery site in which the waqf owner is unknown; is termed by fiqh scholars as "musbalah" and will remain as a burial site according to the Islamic laws.

c. Decision of Kedah's fatwa committee
In Kedah, its Fatwa Committee has decided that any repossession of land attached to a mosque or surau's buildings site, parameter and structure is exempted and prevented from acquisition.This site and building must be maintained and persevered as a praying site.However, if the land is to be used for projects such as road constructions or other public interests, this land can be acquired but it must be further located than the praying site.Involved lands used for such projects must be compensated with another land of the same stature and width.Whereas, the mosques and surau involved are to be built on new lands.
Repossession of lands used for mosque sites involved in improving the K10 route; from Pekan Guru to Pekan Sik Kedah is prohibited, whether it is involved in the expansion of the road or is kept as sustension only.Mosque buildings are not to be tampered with, encroached, or defiled.(Himpunan Fatwa Negeri Kedah Meeting on July 10 th 2005) For land repossessions on Muslims cemetery site, it must be replaced with a land of equal width and affected burial lands must be moved to nearby vicinity.Along with this guideline, Kedah's Fatwa Mufti Division also believe it is best to be able to differentiate between burial sites that can be relocated to a new land and those that could not, by examining the condition of the burial soil.
The Committee's decision involves the relaxation of the law on the issue of cemeteray aging more than 100 years, that it should not be relocated or disinter if the land taken is meant for road expendtion.This is justified with the idea that most cadavers aging 100 years old and above have disintergrated.
Conversely, burial sites aging less than 60 years old can be relocated to other cemetaries.The statement below strengthens this fatwa ruling: (http://infad.kuim.edu.my/modules.php).
No restriction is stated in the syara' of land repossession involving cemeteries if the purpose is to expand village homes, as such expansion is considered a public 'maslahah'.Any cemetery involved, aging more than a 100 years old, its soil may be cumulated without being disinter or excavated as empirically, these cadavers would have mostly disintergrated, and any remaining cemetaries aging below 60 years old is advised to be disinter or excavated with care; if the juzu' of cadavers are discovered, then it should be assembled, and reburied at any Muslim cemeteries.

d. Decision by Melacca's Syariah Committee
In Melacca, the Syariah Committee has publicized a fatwa mentioning that all repossessed waqf lands by government are to be given monetary compensation and replacement in terms of land must be made by MAIM.(Refer to article 2 nd February 1995.No.54.See Appendix II) The fatwa is justified following the statement below: Based on the laws of syara', waqf lands cannot be traded, given to someone else nor change his ownership.This is reported as to how Umar al-Khattab r.a himself has dealt on his waqf land in Khaibar, to which it became the first waqf land in Islamic history.
According to the syara' in section 37, an Enactment by Syara' Laws Administration (State of Melacca) 1991, waqf lands in Melacca is placed under the care of Islamic Religious Council as the sole trustee.
Thus, if a waqf land has been repossessed by the state's authorized party, due to any plausible reason, then a compensatory payment is obligatory and the reimbursement must be placed with it a right, and is paid to the Islamic Religious Council so that another land could be made as a replacement, in order to sustain its waqf significance and to fulfil the wishes of the person who has made waqf.
In relation to the repossession on cemetery sites, those aging less than 60 years old are not to be acquired and avoided from the aforementioned.The repossession of public lands by the government is encouraged if these lands are meant to implement government programmes that include public interest (public purpose) As for land repossession by the government on public property, meant for individuals or assigned projects, then the ruling is as follows: 1) The ruling is approved if it is agreed by the original land owner; 2) If such agreement is not achieved and no hidden implications are involved, then it is discouraged; 3) If the government deems such land repossession as benefial for public interest, and there is no other option available, then it is permissible although there is no consent from the owner; 4) Any land repossession involved must be given fair compensation including damage costs to the owner.
All decisions made by the Ulama' Council are based on the following evidence: 1) A hadith by the Prophet mentioned: "The property of a Muslim becomes haram unless it is with the owner's consent" and the hadith: "There is no harm made or cast upon." 2) A Syarak which reads: "Any action by the government to its citizen is to be based on general welfare and interests."The position of a nation's leader is equal to the postion of a guardian (wali) or manager of the orphanage.
Based on this fatwa, as decided on by the Ulama Council, the Land Administrator in Kelantan has used this as a guideline in all dealings regarding land acquisitions with onwnership.This fatwa is fully complied with and is followed by all Kelantan's Land and Mines Office (PTG) land administrators, and they have also issued a circular notice to all land administrators informing them that all resolution to land acquisitions under the Land Acquisition Act 1960 are referred to Kelantan's Islamic Religious Council.
Accordingly, administrators are advised to refer to the above ruling before allocating provisions of the Land Acquisition Act 1960, Section 3.Such circular notice is made effective from the day the ruling was decided on.Kelantan's Office of Land and Mines has directed that all lands belonging to individuals must not be acquired by force when building mosques or surau, except with the consent of the land owner or his successor: (Refer to circular notice by the Director of Kelantan's Land and Mines, Number 5, Year 1976) "...it is my honour to say that all lands which has been provisioned for mosques and surau by the land owners themselves, or that has been bought and later provisioned by the new owner for the aforementioned purpose, or is provisioned by the recepients of inheritance, then such lands are deemed valid in syarak.As for lands that has been acquired by force from its rightful owner, it is then regarded as haram in terms of Islamic law, and if such land is made into a prayer site, all Islamic practises practised on such site will not be of complete merit"

g. Decision by Perak's State Syariah Committee
In Perak, (http://infad.kuim.edu.my/modules.php)Perak's State Syariah Committee has discussed issues regarding the status of land rewarded by the government to Perak's Islamic Religious Council (MAIP) meant for religious activities.This includes the building of mosques, surau, cemetery, religious school, and other purposes that is of the interest of the state's Muslim community.These lands are direcly involved with the acquisition of lands by the government meant to be developed for development projects.This issue has been raised as a concern to MAIP, so that its use does not contradict with the laws of Islamic waqf in the event that the status of such lands is meant for waqf.
Perak's State Syariah Committee has held a meeting on Zulqaedah the 3 rd 1422, equaivalent to 17 th January 2002, of the 154 th meeting, has agreed that the status of lands granted by the government for the purpose of building a site for prayers, mosque, surau and cemetery is included in the waqf category.Whereas, lands granted by the government for developmental purposes are considered as treasury lands (Baitulmal).

Analysis on fatwa regarding acquisition of waqf lands by Malaysia's state authority: obstacles and contraints
Overall, after analysing the minutes of meetings, all fatwa in Malaysia are found to be very adamant in matters regarding acquisition of waqf land.As Sole Trustee of waqf property, it is within MAIN's main interest to uphold the rights involving waqf lands, especially repossessed waqf lands specifically meant for the building of mosques / surau and cemetery.Such ruling is observed in Terengganu, in which the Fatwa Committee, though they are well conversed that consent from MAIN regarding matters of national land is unnecessaty, consent from MAIDAM must be taken into account in order to maintain the norms of Islamic law.This involves all land acquistion by the government.The prerequisites made by the Fatwa Committee however, contradict with the Land Acquistion Act, Section 3.
A similar situation occurred in Kedah, whereby cemetery and mosque sites should be protected from being repossessed by the government although it is for public development.Most of the state fatwa agreed on by their respective Committees are deemed as too general and lack in details.These fatwa failed to mention the views of different sects (mazhab), it also does not carry evidence nor an explained resource.(Noor Naemah Abd rahman and Ahmad, 2004, pg. 5) This is in contrast to Kelantan, in which there exists a specific fatwa regarding land repossessions by the government.The Fatwa Committee has distinguished between land repossession applied for by the government and other private bodies.If a land is to be repossessed by a private body, consent from the owner must be taken into account, even though such repossession is meant to build a mosque.This consent is made priority and a prerequisite to any land belonging to a particular individual.Such ruling by Kelantan's Ulama Council is more detailed if compared to the ruling in other states.
On the other hand, all state fatwa has decided that for each land repossessed by PBN, compensation shall be made, either in monetary terms or land.Even so, there are waqf lands that have been repossessed without being compensated on the grounds that such lands have not been registered under MAIN.Based on the decision by Perak's Syariah Committee, the status of lands rewarded by the government to MAIP for religious purposes are considered as waqf lands.As such, any repossession involving waqf lands must be compensated based on its current value.However, since no ruling has been amended in Kedah, there are at least 25 lots of waqf lands that have been repossessed.Of these, only 16 lots of lands were compensated by the government.The remaining 9 lots which have been repossessed are not compensated for as it still holds the status of Rezab Certificate (R/C).These lands are mostly waqf lands of mosque and cemetery.(Rani, 2008, pgs.264-266)Therefore, Kedah's Fatwa Committee should revise and reevaluate these cases as almost half of the waqf lands under the 'special' category hsa yet to be registered with MAIK.
However, the amount of compensation paid by the governemt must be used to purchase other lands in lieu of waqf.This decision was agreed to and accepted by all fatwa states involved with repossession of waqf lands.MAIN has been elected as the responsible party instead of the Land Administrator.Meanwhile, in Johor, the state fatwa has set up a condition in which, should the compensation be in form of land, Johor City Council shall endeavour to find land or an application can be made on government land.Such decision complies with the current situation, to which land compensation is voted for more than monetary compensation, although it might overwhelm MAIJ in searching for certain lands to be replaced with.Regardless of this difficulty, most of the responsibility is borne by MAIN, and without interference from the governemt and the land administrator, crisis remains unresolved.This can be proven as almost all repossession on waqf lands by PBN have yet to be compensated with another land as a waqf due.(Ibid., pgs.300-308)Thus, the decision by Johor's Lujnah Fatwa should be practised by other states.
Results on a fatwa issued by the mufti department have not binded the decision by the State Authority.This is due to the fact that all procedures regarding land repossession in Malaysia is subject to Land Acquisition Act 1960, which overpowers MAIN's or the mufti's jurisdiction.It is recommended that ruling bodies are not only to issue rules (hukum), but the ruling made has to be enforced and implemented.It should also be granted authority to question the extent of enforcement on the issued fatwa, and that all suggestion and recommendations made will be executed or otherwise.In such cases, it is advised that fuling bodies not only be given the task of issuing laws, but also enforce and implement it as part of the procedures towards the State Authority, as practised in Kelantan.This authorized body should also be allowed to question the extent of enforcement and implementation on the decided ruling.
Apart from this, certain rulings that have been a constraint to the settlement of lands repossessed by PBN must be reviewed.Among those highlighted is the difficulty to 'Istibdal' such lands as the land area is seen as too small and these lands are mostly bound to the conditions set by waqf giver, and such concept of 'Istibdal' is not only bound to the land or compensation is to be made with something other than land.With a relatively limited fatwa, those which have been determined generally maintains as a traditional practise in Malaysia, as to Syafi'i's sect, regarded as the main reference in dealing with many of the issues raised.(Noor Naemah Abd rahman and Ahmad 2004, pgs.181-188)This includes other concepts including the implementation of the 'Ijarah' and lease of lands belonging to PBT, in order to prevent MAIN from loss of waqf assets in the long term.All of this requires a contemporary law paradigm that takes into account the current issues and circumstances.

D. CONCLUSION
The law on repossession of waqf lands by force is not explicitly stated in the Quran or in the hadith by the Prophet.This practise also did not occur at the time of the Prophet and his companions.Thus, the implementation of repossession of waqf lands by the authority is included in the discussions on fiqh, as the question on ijtihadiyyaharises and reference must be made based on the rules of Fiqh (Qawa'id al-Fiqhiyyah), in order to solve current matters.The law on repossession of waqf lands that has been adapted from the original law exemption requires detailed and concrete procedure so that its implementation does not result in injustice and cruelty, especially towards the land owner whom has been deprived of the rights on the property.Land repossessions by the government are subject to more stringent conditions, as opposed to land repossession by individuals.This is due to the Islamic concept of 'waqf ibadah' and land repossession by the government must meet the goals and interests of the public.
Accordingly, the Committee or State Fatwa Council shall serve the determination of a fatwa by taking into account the environment and current needs, also known as contemporary fatwa.Fatwa issued shall be more detailed and is coordinated on both the state and national level.Every fatwa decision made must also have a strong ground, in which waqf lands should be prevented from repossession by the government or any private bodies for development purposes.

b. Fatwa by Terengganu's mufti division
Fatwa that has been issued by National Fatwa Council shows that waqf land cannot be repossessed by the government without any reasonable grounds.Direct possession of waqf land by government cannot be ruled as infallible due to restrictions and conditions prescribed by Islamic waqf law.The preagreement depends on critical and unavoidable circumstances in which the original rulings of waqf land possession can be negated.In such cases, government is given options; to replace the repossessed land with either monetary compensation or land replacement of equivalent value or slightly more by conferring to the rules contained in the concept of waqf land'sIstibdal.

Decision by Kelantan's Fatwa Council of Scholars The
same issue has been discussed in detail by Kelantan's Islamic Religious Council or 'Jemaah Ulama Majlis Agama Islam Kelantan' (MAIK) in respect of lands repossessed by the government, due to public interest as well as for building mosques and surau.(Refer to Appendix III).Although the decision is confined to land owned by individuals, this decision also indirectly applies to the waqf lands owned by MAIK.A meeting by MAIK's Scholars' Council, commencing on the 17 th of July 1994, has agreed that: (http://infad.kuim.edu.my/modules.php) (Interview: Mr. Mohd Hairul Amin bin Mohd Sis) e. Decision by Johor's Lujnah Fatwa