Hisham Dafterdar, CPA, PhD
Chairman, Awkaf Australia Ltd
The waqf is a feature of Islamic civilization; and it’s not so much about the grand mosques that awe and inspire, or the magnificent shrines that amaze and impress. It’s more about the schools and universities, the hospitals, orphanages, and nursing homes that serve and care. It is about the poor, the needy, the homeless, the vulnerable and the under-privileged. It’s about people, about the community, about wellbeing, about this life and about the next life.
The beneficiaries designated by the waqif are the most essential component in the structure of the waqf. Without beneficiaries or ultimate charitable purpose, the waqf would be invalid. It is the beneficiaries who give the waqf its raison de itre and humanitarian identity. Beneficiaries are the motivation for donors’ support and the inspiration for volunteers’ work. Beneficiaries form the basis of awqaf’s classical categorization into charitable (khairy) waqf, familial (dhurri) waqf and joint (mushtarak) waqf. Except in some rare cases of family awqaf, the purpose of the waqf is (qurba), the performance of deeds for the pleasure of Allah.
The conditions of the waqif are held somewhat venerably as sacred items of the waqf. Some fiqh scholars went so far as to say that the waqf belongs to the beneficiaries in the sense that the waqf was created for their benefit. The concept of ownership in awqaf separates legal and beneficial titles. The beneficial title involves a mixture of rights, obligations and duties. The rights include the rights of beneficiaries, as defined in the waqf deed, to a share of the usufruct of the waqf, not its corpus, as long as they remain entitled as beneficiaries. Thus, if the income from a waqf property was insufficient to pay beneficiaries their specified or fair shares, a portion of the asset cannot be sold to make up for the shortfall. The consensus of Shariah scholars is that a waqf property is inalienable, i.e. it cannot be sold, transferred or otherwise disposed of, but if necessary, it can be substituted or exchanged for another of equivalent or better value or use. The nazir has the duty to manage the waqf property and the obligation to distribute the income to the beneficiaries in accordance with conditions of the waqif.
It is sometimes a challenge to identify who is the true beneficiary of a waqf. When a devout Muslim dedicates a large portion of his wealth as a waqf because he believes this will weigh in his scale [of good deeds] on the Day of Judgement, who is the prime target of his benevolence? People want to be rewarded for anything they do even when acting out of compassion or piety. The endowment of worldly goods is a low price to pay to ensure entry into Heaven. Consider the waqf established by Lady Fatima, a member of the Mamluk dynasty of Egypt. Lady Fatima designated readers of the Holy Quran to make daily recitation at the graves of her children who pre-deceased her, and at her own grave after her death. The Quran readers then make a gift of the accrued blessings (thawab) to the soul of the deceased. Who are the beneficiaries in this case? Are they the Quran readers who receive the proceeds of the waqf, or the deceased children who are gifted the thawab, or is it Lady Fatima before or after her death? Consider also the case of a waqf for a Madrasa where the teachers are paid a stipend to teach students who also receive cash allowance from the waqf. Can we rank beneficiaries in order of payment and say that the teachers are the direct beneficiaries and the students the indirect ones? Or is it vice versa? The question then becomes how much one has to benefit from a waqf to count as a direct beneficiary? What if the lessons are given via the internet? Or is the cash allowance and the physical presence of the students in the Madrasa building required to make them direct beneficiaries? If a waqf provides free medical services to children with disabilities, are the beneficiaries the disabled children or the poor parents or guardians who otherwise will have to pay for the medical services? If a waqf provides free veterinary services for animals are the beneficiaries the animals or the animalsâ€™ owners? If the yield from the waqf is reduced by undue expenses such that it might not be possible to provide for all beneficiaries, who should take precedence over whom or should the distribution be on pro-rata basis? Such questions will prompt us to reflect on a host of issues that confront the nazir in identifying the beneficiaries who are entitled against all other claimants if he is going to disburse awqaf funds fairly and equitably.
Knowing who the beneficiaries are can be more complex than what might seem. How the nazir defines the waqf beneficiaries will decide the way he can allocate its resources. Awqaf nazirs are not all intuitive or perceptive, and beneficiaries are not all virtuous and honest. To determine the eligibility of a beneficiary involves reliable background checks and rigorous analytical diagnosis based on easily observable and verifiable indicators including the social circumstances, legitimacy of the needs, income level, conformity with the conditions of the waqif, and the availability of resources.
Managing an awqaf organisation is generally more complicated than managing a comparable size commercial company. Whereas in companies decisions are justified in terms of their effect on profitability and shareholder value, in awqaf decisions are commonly considered good if they create better values for their beneficiaries. When a company creates or adds value for a customer, it generally recovers the cost-plus by an increase in sales or in price, i.e. the customer pays for the created value. When a waqf organisation seeks to create or add value for its beneficiaries, the cost cannot be recovered from the beneficiaries. Donors usually pay these costs. Being a beneficiary is different from being a customer. If customers are unsatisfied, they may switch to another brand or a competitive product. This choice is not available to beneficiaries. Unlike other customers, dissatisfied awqaf beneficiaries can’t just take a benefit they get from a waqf and exchange it for another.
Many awqaf beneficiaries are not very clear about the waqf they are beneficiaries of. They are not privy to the waqf document and are not aware of its provisions. The majority are poorly educated and do not know how to approach the nazir regarding their entitlement. They do not know how to seek action against the nazir if they have suffered a hardship as a result of breach of the waqf conditions, and if they do, they have a slim chance of prevailing. The reality is that the nazir has many stakeholders to deal with waqifs, donors, regulators, contractors, staff and volunteers that distract him from devoting full attention to the beneficiaries’ needs. That is not to say that nazirs do not ask or get feedback from their beneficiaries. They sometimes do, but this is often done through the eyes and ears of volunteers who frequently receive expressions of gratitude even when there are issues, especially from older people who feel they should not complain or make a fuss out of fear of exclusion. Such techniques may prevent the nazirs from getting reliable feedback from their beneficiaries, and the chances of vulnerability multiply.
In family awqaf, the purpose is not always religious and the beneficiaries are not necessarily poor. Some family awqaf were established as wealth management tools, taking advantage of the alienation rules to safeguard the property from falling into the wrong hands or to protect it from creditors. The waqf was also used as an instrument to circumvent Islamic inheritance rules, by entitling male descendants and depriving the females or disentitling females upon marriage, or distributing the estate equally between males and females or in any other way that would be impossible under the Islamic laws of inheritance. However, these cases are very few as the vast majority of family endowments are established for religious aims and they ultimately revert as general charitable awqaf after a stated period or when the family lineage discontinues.
The impact of religion on awqaf is deep and enduring. We often hear the plea to follow the objectives of Shariah (maqasid al Shariah) not only its dogmatic expressions. Otherwise we could be Shariah compliant without achieving the desired outcomes. The waqf being a (sunnah) voluntary act of worship (ibadah), is a means of realizing shariah objectives of alleviating poverty, building capabilities and creating opportunities for the most vulnerable people. Awqaf serve the spiritual needs of the waqifs, just as they serve the mundane needs of the beneficiaries. In awqaf, all stakeholders are beneficiaries and as such are better referred to as partners, because they constitute the community that the waqf is here to serve.