Unearthing potential: a comparative study of waqf real estate development and management in Turkey and Malaysia

Unearthing Potential: A Comparative Study of Waqf Real Estate Development and Management in Turkey and Malaysia Zati Ilham Abdul Manaf Assistant Professor, Civil Law Department, Ahmad Ibrahim Kulliyyah of Laws, International Islamic University Malaysia Abstract Waqf, an Islamic practice of voluntary endowment for communal benefits, has been an integral institution within Muslim communities for centuries, fostering socio-economic conditions through the dedicated use of real estate for the welfare of the society. Traditionally, real estate forms the cornerstone of Waqf, with properties dedicated to the welfare and support of society. However, despite the rising prominence of other forms of Waqf, such as cash Waqf, real estate remains an enormously influential Waqf asset. Hence, this research delves into the effective and sustainable management of Waqf real estate, focusing on the practices of Turkey and Malaysia. Deeply rooted in its Ottoman legacy, Turkey possesses a rich history of Waqf endowments. Despite its secular constitution, the country has innovatively restored and rejuvenated old Waqf properties, transforming them into functional and commercially viable entities, showcasing an interesting blend of cultural preservation and sustainable use of Waqf assets. Turkey's commitment to Waqf property revitalization is prominent in its successful restoration of historic mosques, such as the Sultanahmet Mosque and Suleymania Mosque, as well as commercial sites like the Spice Bazaar. However, through precursory investigation, it is observed that this progress is marked by a relaxation of traditional Islamic restrictions associated with Waqf, particularly involving the construction process and the financing of the development, reflecting a unique approach to Waqf management and development. In contrast, Malaysia, traditionally dedicating Waqf for specified religious and social purposes, is now aiming to exploit the untapped commercial potential of its numerous idle Waqf lands. Of particular interest is the burgeoning initiative to construct housing accommodations on Waqf lands. This endeavor, supported by federal funds, faces unique challenges due to strict adherence to Shariah principles and funding constraints inherent in Waqf. Recognizing these challenges, the Malaysian government is currently drafting specific Shariah-compliant laws to regulate developers involved in such development projects. Methodologically, this research employs a doctrinal approach, relying extensively on library-based research that includes a review of related statutes, journal papers, books, and conference papers relevant to the subject matter. This is supplemented with information obtained from a seminar presented by academics and a representative from The Directorate of Vakif (Istanbul) from Turkey who provided crucial perspectives on the functioning and practical administration of Waqf in Turkey, enriching the research with practical understanding and experiences. The study aims to explore whether the path Turkey has carved in managing and administering Waqf real estate could serve as a learning curve for Malaysia. Through the comparison of these two distinct models of Waqf real estate development, the research aims to identify best practices, potential pitfalls, and opportunities. The goal is to provide meaningful and practical implications for policymakers, Waqf managers, and other stakeholders. This research uniquely offers a lens to compare and contrast two different models of Waqf real estate, emphasizing the significance of innovative, context-specific strategies in maximizing the benefits of Waqf properties. It uncovers the strengths, limitations, and unique characteristics of both systems, contributing to a broader understanding and advancement of Waqf real estate management. Furthermore, this study adds to the growing discourse on the role of Waqf in socio-economic development, advocating for a more sustainable, equitable, and prosperous society. This extended analysis serves not only to highlight historical practices but also to envision a future where Waqf continues to play a pivotal role in societal welfare and sustainable development through commercial and housing projects

Waqf real estate development disputes in Malaysia: in search for solutions

Idle awqaf lands have been identified as one of the prime areas for commercial and residential development in Malaysia. However, this has given rise to a new set of never-before-seen disputes involving stakeholders such as the Waqf trustees, beneficiaries, developers and the purchasers that involves both the Shariah and civil legal system. This research therefore seeks to identify the types and natures of disputes which arise from Waqf development projects and to propose dispute management strategies which may be suitable to resolve and prevent them

Examining the evolution of waqf regulations in Selangor: an analysis of the governance framework and transformative approach

The inadequacy of comprehensive laws for Waqf administration is one of the main issues that has limited the development of Waqf in Malaysia. Whilst most states in Malaysia rely on their Administration of Islamic Law enactments, in 1999 Selangor pioneered a Waqf enactment which specifically oversees Waqf administration and management. With the promulgation of the Selangor Waqf Enactment 1999, the administration of Waqf in Selangor became more regulated and structured. However, as matters pertaining to Waqf practices became more complex, Selangor repealed its 1999 Waqf Enactment and replaced it with the 2015 Waqf Enactment. This research therefore analyses the evolution of Waqf in Selangor through the two respective enactments, by identifying the changes in practices and scrutinising the rationales for the development of the laws. It also analyses how the laws have impacted the Waqf governance framework in the state. By assessing the position of the 2015 Waqf Enactment, it determines whether the current legislative demand posed by Waqf development in the state is met and whether the change in approach should be followed by other states in Malaysia. Doctrinal legal research is utilised to examine the two enactments respectively. Legislative Assembly Proceedings related to the promulgation of the respective enactments were also examined to further understand the reasoning behind the repeal and the introduction of certain provisions. It is found that although the 2015 Waqf Enactment is more comprehensive than the 1999 Waqf Enactment, further improvements can be made to better achieve transparency and accountability on the part of the Waqf administrato

The necessity for the formulation of an online family dispute resolution management framework in Malaysia

This article discusses the need for the formulation of an online family dispute resolution management framework in Malaysia. One of the main reasons is that young married couples need assistance to resolve challenges that they faced in their marriage. Researches have shown that the first five years is the most difficult period in a marriage. An initial study conducted by National Population and Family Development Board also known as Lembaga Penduduk dan Pembangunan Keluarga Negara (LPPKN) has shown that in 2014, more than one third of a first marriage that were less than 5 years ended in divorce or separation. With the prominent role that technology plays in our society, it is hypothesized that the internet can be used as a tool to reach out to couples who are experiencing marital discords. Professional intervention is often needed to address such disagreements before it escalates into separation or divorce. Through a survey of literatures and a series of discussions gathered from workshops, it has been found that a more effective method of outreach is needed for younger couples in Malaysia who are in need of professional marital advice. This article therefore proposes for the use of an online family dispute resolution management framework as an outreach tool which can connect marriage professionals and couples who are in need of professional intervention. This Online Dispute Resolution framework will act as a guided pathway of information and advice to young couples who are considering separation or divorce

Reconciling the concept of private lease under Malaysian land law with the concept of al-ijarah under the shariah in waqf land development

The concept of private lease has become prominent in the Malaysian real estate sector particularly in the development of waqf land. Waqf lands are held by the State Islamic Religious Council (SIRC) as sole trustee under the respective state enactments relating to the administration of Islamic law and the waqf enactments, if any. Where such lands are developed, properties built on these lands will then be ‘sold’ to various purchasers under a lease agreement. This chapter discusses the concept of a private lease under the National Land Code 1965 (‘NLC’) with the concept of al-Ijarah under the Shariah to see whether these concepts are compatible and suitable for application in the context of waqf land development. Issues that have been raised by developers and purchasers are security of tenure and the miscomprehension of purchasers on the nature of proprietary rights accorded by the lease as opposed to a document of title. The study will utilise the legal doctrinal methodology and will also identify best practises available in the waqf land development sector in Malaysia. Findings of this study will identify the areas and suitable method for reconciliation of the two concepts that would uphold the principles under Shariah with legal requirements under the NLC. Findings will also facilitate implementation of private leasing in the Malaysian conveyancing practice for properties built on waqf land

Comparative analysis of the statutory duties of waqf managers under the State Waqf Enactment And The Duties Of Trustees Under The Trustee Act 1949

The paper seeks to propose improvements in terms of the statutory duties of the Waqf Managers in Malaysia (SIRC and appointed third parties) under the Waqf Enactments through a comparative review of the Trustee Act 1949. Specific duties such as the duty to invest, duty to report and duty to monitor as provided under the Trustee Act 1949 were critically analysed to determine whether it could be replicated or integrated in the current Waqf laws. It was found that the Waqf enactments can indeed be improved and insights from Trustee Act 1949 would serve as valuable comprehensions on how the provisions can be enhanced as part of the effort in perfecting the Waqf laws in Malaysia

Legally speaking: navigating the legal landscape of digital investments

When considering digital asset investments, potential investors must pay attention to three key factors: legality, accessibility, and security. It is essential to familiarise oneself with the regulations in their jurisdiction, ensure that the investment is Syariah-compliant (if applicable), and take extra precautions to protect digital assets from potential security risks. Moreover, planning for after death is equally important, and investors can create a comprehensive digital estate plan to protect their digital assets and ensure that they are passed on to the intended beneficiaries. By taking these considerations into account, investors can make informed decisions and mitigate risks associated with digital asset investments

Requirement of complete constitution of property in express trust: whether relevant in waqf

Waqf has often been compared to the common law concept of trust. Scholars have noted common traits in terms of their conceptual, structural as well as functional frameworks. However, each concept possesses certain features which set them apart and treating them alike may lead to the invalidation of the other. The validity of an express trust requires more than the satisfaction of the test of three certainties, it is also trite law that an express trust must also be properly constituted; either by a settlor’s act of transferring title of the property to the trustees to be held on trust for an indicated beneficiary or charitable purpose, or by declaring himself trustee of the property for a person or purpose. While this is necessary for the validity and enforcement of an express trust, the need to ensure that the Waqf property is properly constituted in the hand of the mutawalli (trustee) is also vital. This paper, through a doctrinal comparative analysis, aims to analyse the requirement of the constitution of express trust under the common law and assess whether such requirement, if unfulfilled, will also affect the validity of a Waqf. The concept of effective transfer as well as the intention of the donor in making an express trust or Waqf will be explored and compared based on the principles of common law and equity as well as under the principles of Waqf in Islam. The disparity in requirements will further show the differences between Waqf and trust and reinforce the notion that they should not be treated alike and therefore issues on validity of these two concepts can be addressed in both Shariah and civil court