Management of waqf disputes in Malaysia : issues and recommendations

Abstract

Numerous issues surrounding the administration of Waqf and its legal framework have contributed to the occurrence of disputes and conflicts between the State Islamic Religious Councils (SIRCs) and interested parties. Even though there are only a relatively small number of Waqf disputes in Malaysia, failure to effectively manage the Waqf disputes will impair the confidence of the public on the Waqf administrators and therefore affect the growth and development of Waqf in the country. Solutions must therefore be formulated to ensure that these disputes are managed and resolved pragmatically and, if possible, amicably. It is therefore the main objective of this research to propose recommendations which could improve the Waqf dispute resolution framework in Malaysia. To achieve this objective, the nature and types of Waqf disputes often faced in Malaysia and the challenges faced by the parties during the resolution process were determined through an analysis of past Waqf cases and through interviews with relevant Waqf officers in Selangor, Penang and Terengganu. An examination of Malaysia’s Waqf legal framework observed that the SIRCs have been equipped with the necessary general powers to ensure that all Waqf disputes are properly addressed. With their given powers, it was found that the SIRCs held preference to amicable settlement before referring any matter to court. However, it has been further discovered that several issues are present throughout the dispute management process which had affected the parties’ chances for amicable settlement. The issue of conflict of jurisdiction between the civil and Syariah courts in hearing Waqf disputes was also observed and analysed in this research. Inspired by the best practices of Singapore and India and the benefits which Alternative Dispute Resolution (ADR) could bring, recommendations were proposed at the end of this research with the aim to improve the current dispute resolution process. The proposed recommendations cover the dispute prevention process as well as the resolution and settlement processes by the SIRCs and the courts. Among the key recommendations proposed were on the empowering of the Syariah Courts in hearing Waqf disputes through legal reforms as well as effective administrative strategies which would effectively prevent or mitigate Waqf disputes. It is believed that the recommendations proposed in this research could benefit the Waqf administration and Waqf dispute resolution framework in this country.