CURRENT LEGAL ISSUES ON WAQF IN MALAYSIA

The author (Dr. Nuarrual Hilal Md. Dahlan) will only elaborate the above heading based on the court’s decision in Majlis Agama Islam Selangor v Bong Boon Chuen & Ors [2008] 6 MLJ 488 (Court of Appeal).

The above case involves an appeal from the Majlis Agama Islam Selangor (MAIS) against the decision of the Shah Alam High Court dismissing MAIS application for leave to intervene into the judicial review proceedings filed by the owners (Bong Choon Chuen and others) of the residential units in Kota Kemuning and Kemuning Greenville, Shah Alam, Selangor (‘the applicant’).  The applicant sought at the High Court, inter alia, to review the decision of the Majlis Bandaraya Shah Alam (MBSA) in allowing a vacant land in Kota Kemuning, Shah Alam to be used as a Muslim burial ground.  It should be noted that the purported land had yet been gazetted as waqf by the Land Office pursuant to section 62 of the NLC. Further, application of MAIS for a declaration that the said land is a waqf in the Shah Alam Shariah High Court has yet been determined.

On the other hand, MAIS application to intervene was based on the fact that MAIS had commenced an action in the Shah Alam Shariah High Court for a declaration that the vacant land was a waqf land and the Shariah High Court of having an exclusive jurisdiction to decide on the issue of waqf. In the Shah Alam High Court, MAIS’s application to intervene was dismissed on the ground that MAIS had failed to satisfy the requirements of Order 15 rule 6(2) of the Rules of the High Court 1980. Under this order, the court has power to include any parties, on its own motion or on application, to be joined as a party of any proceedings, if the court thinks just.

In the High Court, MAIS argued, inter alia, that pursuant to section 7(1) of the Administration of Religion of Islam (State of Selangor) Enactment 2003, MAIS has a duty ‘to promote, stimulate, facilitate and undertake the economic and social development of the Muslim community in the State of Selangor consistent with hukum syarak’.  In light of this provision, MAIS contended that they have a legal interest in the judicial review proceedings. Otherwise, the interests of all Muslim citizens in Selangor would be prejudiced and that would affect the integrity of MAIS. Further, it was contended by MAIS that MAIS as a body responsible to advise His Royal Highness the Sultan of Selangor in respect of all matters relating to the religion of Islam in the State of Selangor, should be directly involved in these proceedings so that it would be in a better position to understand the whole case and, consequently, be able to acquire a better perspective of those proceedings and ultimately be in a better position to advise His Royal Highness the Sultan of Selangor effectively.

The Court of Appeal in majority 2 to 1 (Raus Sharif and Hasan Lah JJCA but Abdul Malik Ishak JCA, dissenting) dismissed the appeal of MAIS on the ground that Order 15 rule 6(2) of the Rules of the High Court 1980 is not applicable to judicial review proceedings. Instead the correct order to be applied is Order 52 rule 8(1), for MAIS to be made as an intervener in a judicial review proceedings.

Secondly, the Court of Appeal opined that in judicial review proceedings, the courts are only concerned with the decision making process of a public body and not the decision itself. In other words, the courts are not going to substitute a fairer or just decision of that public body’s. If the decisions made are administratively sound, the courts have no power at all to interfere with the decisions made.

Thirdly, even if Order 15 rule 6 (2)(b) of the RHC is applicable to a judicial review proceedings, the MAIS application has still failed to satisfy the judicial review requirements. This is because the issue of waqf as raised by MAIS is not that is just and convenient to determine within the judicial review proceedings. In fact, it is wholly unrelated to the core issue brought by the applicants in the judicial review proceedings. By raising the issue of waqf, MAIS was in effect, attempting to introduce an entirely independent and new cause into a judicial review proceedings. This is not permitted under Order 15 rule 6(2)(b) of the RHC.

In the opinion of the author, the land being the subject matter in the above case, even though it was contended to have become a waqf land, is yet to be so. This is so on the ground that the said land has not yet been gazetted as a waqf land by the land office pursuant to provision under section 62 of the NLC. Thus, it is opined, the act of MAIS to intervene is premature. Further, according to section 13(e) of the Wakaf (State of Selangor Enactment) 1999 (Enactment No. 7 of 1999) provides: ‘A wakaf is invalid if…(e) it is inconsistent with Hukum Syarak or any written law’. Thus, referring to the above case law, even though according to Hukum Syarak that a particular land can be considered a waqf land, the said land still could not be considered as such because the said land has not yet been gazetted as a waqf land pursuant to section 62 of the NLC. It is opined the word ‘written law’ under section 13(e) of the Wakaf (State of Selangor Enactment) 1999, is the National Land Code 1965.

The above contention may be further supported by section 4(2)(e) of the NLC itself, which reads: ‘Except in so far as it is expressly provided to the contrary, nothing in this Act shall affect the provisions of – (a)…(e) any law for the time being in force relating to wakaf…’. Thus, even though there has been a purported waqf land by the religious council according to Islamic Law, if the waqf has not been gazetted pursuant to section 62 of the NLC, the waqf is still not a valid waqf. This is so bearing on the provision in section 13(e) of the Wakaf (State of Selangor Enactment) 1999 and the sentence ‘Except in so far as it is expressly provided to the contrary’, under section 4(2)(e) of the NLC. On the contrary, in G Rethinasamy and Shaik Zolkaffily bin Shaik Natar, as in Penang during the course of litigation of this case there was no similar provisions similar to section 13(e) of the above enactment available and enforced in Penang. Thus it follows that, in the opinion of the author, in both cases (G Rethinasamy and Shaik Zolkaffily bin Shaik Natar) even though waqf had yet been gazetted under section 62 NLC, the purported waqfs were still considered valid waqfs by the courts and the provisions under the NLC had no application over waqf lands pursuant to section 4(2)(e) of the NLC.

Hence following the above case law (Majlis Agama Islam Selangor v Bong Boon Chuen & Ors), the purported waqf in Sahul Hamid & Anor v Negri Sembilan Religious Council & Ors JH [1417] H Jilid X Bhd II and Haji Hassan v Nik Abdullah & Ors [1969] 2 JH 124, may not be a true and valid waqf protected under the Malaysian laws, even if the said purported waqf is recognized by Islamic law but it is still has not been gazetted under the NLC. If these cases were to occur in Selangor now, the waqf occurring in Sahul Hamid & Anor v Negri Sembilan Religious Council & Ors and Haji Hassan v Nik Abdullah & Ors, may not be considered a valid waqf, in the eyes of the Malaysian laws (for instance under the NLC). However, as there is no similar provision of section 13(e) of the Wakaf (State of Selangor Enactment) 1999 in other states, except Malacca, the author opine that similar disputes as occurring in Majlis Agama Islam Selangor v Bong Boon Chuen & Ors might occur again in the future in other states in Malaysia, unless there is an efficient administration and clear law which can govern waqf and its validity as well as to protect the waqf’s stakeholders and beneficiaries.

 

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