Harmonisation of waqf law: Mitigating the gap and minimising the misconception towards a new narrative of waqf in Malaysia

Nor Asiah Mohamad and Muhammed Buhary Muhammed Thabith (2025) Harmonisation of waqf law: Mitigating the gap and minimising the misconception towards a new narrative of waqf in Malaysia. Al Waqf Journal. pp. 266-237. ISSN 2959-8958

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Abstract

Waqf, as an integral part of Islamic social finance, falls under the jurisdiction of Islamic law. This paper examines the legal and Sharīʿah developments related to waqf, Islamic finance, and relevant legislation, with a particular focus on harmonizing waqf laws. Legal harmonization serves as a crucial mechanism for addressing misconceptions surrounding waqf regulations. While the interaction between civil and Sharīʿah law presents multiple legal implications, misunderstandings persist not only among non-Muslims but also among Muslim scholars. These misconceptions are particularly evident in matters concerning cash waqf, waqf of immovable properties, istibdal, and waqf muaqqat. A significant challenge in waqf development in Malaysia stems from the lack of understanding of its legal framework, especially when compared to the English concept of trust, endowment, and the division of authority between federal and state governments. These factors have contributed to the slow progression of waqf-related initiatives. Therefore, this study explores the justification, processes, and advancements in waqf harmonization within Malaysia. Using a doctrinal research approach, this study critically analyzes various legal sources, including statutes, academic articles, books, and research papers on waqf and related charitable instruments such as trusts, endowments, and other Islamic social finance products. The findings highlight that legal harmonization, supported by policy reforms, education, and strategic collaborations, is essential for advancing waqf beyond its traditional role as a philanthropic institution. Furthermore, the study reveals that the legal status of Islamic law in Malaysia significantly influences waqf development, particularly regarding the jurisdictional overlap between Sharīʿah and civil courts. Additionally, the formal recognition of waqf through specific legislation has shaped its legal framework, allowing for the incorporation of principles initially unrecognized by the Shāfiʿī school, including cash waqf, waqf of immovable properties, istibdal, and waqf muaqqat. This paper advocates for the standardization of waqf laws across Malaysian states and emphasizes the need for a shift in mindset among waqf administrators to ensure the sustainable and effective management of waqf assets.

Item Type:	Article
Keyword:	Harmonisation, Waqf Law, Istibdal, Waqf Muaqqat, Malaysia
Subjects:	K Law > KBP Islamic law > KBP1-4860 Islamic law. Shariah. Fiqh > KBP50-69 History, development and application of Islamic law K Law > KJ-KKZ Europe > KJE5-7975 Regional organization and integration. Comparative law
Department:	FACULTY > Labuan Faculty of International Finance
Depositing User:	JUNAINE JASNI -
Date Deposited:	04 Aug 2025 16:56
Last Modified:	04 Aug 2025 16:56
URI:	https://eprints.ums.edu.my/id/eprint/44683

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