Abstract: Waqf is a charity in which corpus is maintained and the usufruct is given to the beneficiaries. The continuity of the usufruct depends on the maintenance and management of the corpus. One of the modes used both in classical and modern times to maintain waqf-properties is substitution of one waqf-property with another known as istibdāl. This paper reads into Istibdāl, selected resolutions of Fiqh Academy India and scrutinizes them under the Sharī'ah objectives of waqf and tabarru'āt (donation). The finding shows that modes of Istibdāl permitted by Islāmic law realize the Sharī'ah objectives of waqf concomitantly. Modes which were not permitted oppose the objectives of the Sharī'ah. This work is a potential guide for institutions and committees involved with the development of waqf-properties using innovative financing modes.
Keywords: Istibdāl (substitution), badl (replacement) perpetual charity, everlasting benefits, Maqāsid al-Sharī'ah
Abstrak: Waqf ialah badan amal dimana korpusnya perlu dipelihara dan usufruk diberikan kepada penerima manfaat. Kesinanbungan pemberian usufruk bergantung kepada pengurusan dan pentadbiran korpus. Salah satu mod yang sentiasa digunakan untuk mengekalkan harta-harta waqf ialah penggantian hartanah waqf dengan hartanah biasa yang dikenali sebagai Istibdāl. Kajian ini akan membincangkan Istibdāl, resolusi yang dipilih oleh Akademi Fiqh Islām India serta menelitinya dibawah objektif waqf Sharī'ah dan tabarru'āt (derma). Kajian ini menunjukkan mod Istibdāl dibenarkan dalam undang-undang Islām dan mempunyai persamaan dengan objektif waqf Sharī'ah. Mod yang tidak dibenarkan menentang objektif Sharī'ah. Kajian ini berpontensi sebagai panduan kepada institusi dan jawatankuasa yang terlibat dengan pembangunan hartanah waqf menggunakan mod kewangan yang inovatif.
Kata Kunci: Istibdāl (pengganti), badl (penggantian) badan amal, faedah abadi, Maqāsid al-Sharī'ah
INTRODUCTION
The reality is that everything is prone to decay. Constant repairing and development for the upkeep is required. This applies to waqf-properties or corpus (mawquf) either moveable or non-moveable. This is because waqf serves the purpose of providing benefits to the beneficiaries through its corpus. The corpus not only has to be restrained with the management, but its form and function have to be maintained through continuous development. If the corpus (form and function) is not maintained, the benefit for the beneficiaries will be unsatisfactory. The benefit generated from such corpus will be non-everlasting and non-economic. The classical period of Islām has seen various solutions for up-keeping the corpus, such as substitution of the corpus (istibdāl), long-lease of the corpus (hikr), investing the corpus (especially the waqf money) in manufacturing contract (istisna1), and so on (Madga Ismail Abdel Mohsin 2016, 8).
Islāmic Fiqh Academy India (IFA) steered by the late Mujahidul Islām Qasmi conducted a seminar on waqf dated 24-27 October 1997 at Mumbai Haj House. 12 Pre-seminar questions were sent to the various scholars and institutions in India. Responses to these questions were presented and discussed in the seminar. Some of the questions the seminar responded to were directly or indirectly enquiring about the up keeping and maintenance of waqf properties in India. Later in 1999 followed by 2012 the responses, discussions, and resolutions were published by IFA with the title "AwqafAhkam wa Masa'il." This paper focuses on responses to question no. 1 with its sub-three cases from this work on Istibdāl and scrutinizes it under the Shan'ah objectives of waqf and donation (tabarru'āt). The study aims to find whether the istibdāl being a measure initiated by humans (Maqäsid al-mukallaf) fulfils the objectives of the waqf set by the Shan'ah or not. Before we embark on discussing the istibdāl related responses and scrutinizing them, defining waqf, and pinpointing its general and particular objectives are dealt with respectively.
WAQF ACCORDING TO THE DEFINITIONS
Waqf (pl. awqāf) in its primitive sense means "to prevent or to restrain" (al-man'u or al-habs). The Arabs say: "waqaftu al-dār waqfan, habastuhu fi sabilillahi (I barred or restrained the house for the cause of Allāh)."(Abdul Wadūd Mohammad Al-Saraiti 1997, 161) In technical sense the definition of waqfcan be construed into three: the first definition is held by Abu Hanifah, the second by the majority jurists consisting of two companions of Abu Hanifah, the Shāfi'ī and the Hanabali Schools and the third definition belongs to the Maliki School.
To Abu Hanifah, waqf is to restrain the possession (milk) of a particular thing and give away its advantage for some charitable purpose. According to this definition the possession of the waqf-subject (mawqūf remains with the owner which gives him the right to retract the waqf whenever he intends. He has the right to sell or gift the waqf-subject and if he dies, the waqf-subject will become estate for his inheritors. This reckons that according to Abu Hanifah, waqf is not of an absolute nature. The owner's (wāqif's) right of property remains intact. According to Abu Hanifah, if waqf is combined with a qādi 's decree, or if the owner stipulates the commencement of waqf upon his death then the possession of the owner will be extinguished (Wahbah al-Zuhayli 2007, vol. 10, 7599 & Al-Kasani n.d., vol. 5, 326).
The majority of the jurists (Two companions of Abu Hanifah, Shafi'i, and Hanabali Schools) define waqf as to restrain a property/ wealth from its owner and expend its yields to a legitimate cause or charitable and righteous purpose with the intention to get closer to Almighty Allāh. This definition in contra to Abu Hanifah's definition concludes that in waqf the possession of a property or possession of portion of a wealth no longer remains with the owner. The possession is considered to be transferred to Almighty Allāh. Based on this, selling or gifting of a waqf-subject becomes illegal (Wahbah al-Zuhayli 2007, vol. 10, 7601).
The third definition as held by the Maliki School which says: Waqf is to assign the benefits owned (mamlūkah) by the owner for a deserving person with special pronouncement for a time period decided by the owner (wāqif). According to this definition, the owner restrains the asset from any of his disposal rights (tasarruf tamlīkī) and donates the benefits for righteous purposes for a time period he prefers. Even though the ownership of the asset in this period remains with the owner, but his right of disposal is suspended during the period of waqf (Wahbah al-Zuhayli 2007, vol. 10, 7602). "Benefits owned" in the aforementioned definition also denotes to giving the rental money as waqf to a recipient instead of the corpus.
The point of departure in these definitions is whether the possession and the right of disposal remain with the owner (wāqif) or not. The majority of the jurists opine that the possession and the right of disposal no longer belong to the owner ofthe substance. In principle the possession of the asset belongs to Almighty Allāh. This means after allocating an asset for waqf the owner cannot sell or gift it, or after the owner's death the waqf-asset cannot be distributed amongst the inheritors. To Imam Abu Hanifah the possession remains with the owner, unless a judge decrees the asset to be waqf or the owner stipulates the commencement of the waqf upon his death. These two conditions will deem waqf as binding (lāzim), otherwise the owner can retract his waqf whenever he likes. Without these conditions, waqf to Abu Hanifah is a non-binding act resembling the act of borrowing ('āriyah) (Wahbah al-Zuhayli 2007, vol. 10, 7599). The Maliki School maintains that the possession and right of disposal stays with the owner. However, the right of disposal is suspended till the asset is within the time period of the waqf. The uniqueness of Maliki School is in limiting the waqf for a specific time period. After the time period expires, the owner can take his asset back and cancel the waqf.
Despite the points of departure, the aforementioned definitions amalgamate with each other on the point that waqf retains the substance and gives away its usufruct for charitable purposes. Charity (tabarru'āt) in general sense such as paying Zakāh and giving sadaqah was already an integral part of Islām. What was common in these charitable conducts was that the corpus ('aīn) itself was given to the recipients who would reap benefit from it in whatever way they desired. On the other hand, waqf because of its special feature to hold back the corpus and only hand out its yield to the recipients was an introduction to a new type of charity. This special feature of waqf is supported by the Hadīth which is also the basis of its legality. Ibn 'Umar reported that:
"His father 'Umar Ibn al-Khattāb got some land in Khaybar and he went to the Prophet (SAW) to consult about it, saying, "O Allāh's Messenger I got some land in Khaybar better than which I never had, what do you command me to do with it?" The Prophet (SAW) said, "If you like you can hold back the land and give its usufruct in charity." 'Umar abiding this suggestion gave the land in charity with the condition that the land would not be sold, nor given as gift, and neither would it be inherited. And its yield would be given to the poor, to the kith and kin, given for the purpose of freeing slaves, given in the cause of Allāh, and given to the wayfarers and guests. He added that there would be no harm if the guardian of the land ate from the yield righteously and fed others without making himself wealthy." (Sahih al-Bukhari, Hadīth no. 2737)
The special feature of waqf can be understood by the suggestion Prophet Muhammad (SAW) made to 'Umar. The suggestion clearly shows that this was a new type of charity the Prophet introduced for the ummah. The pagans in Prophet's time never heard of waqf. In other forms of charity, the rich donates for a group of needy people. The needy enjoy the donation until the given amount is exhausted. After exhaustion, the recipient-needy-group and the future needy group is left with nothing to fulfil their needs. To overcome this type of predicaments, the Prophet (SAW) introduced a new type of charity in which the corpus will remain intact while the usufruct will be spent on the needy. A charity with these features definitely withholds more benefit (maslahah) for the people compared to other forms of charity (Sa'īd Ahmad Palan Puri n.d., vol. 4, 620-621). Also, on the basis of this Hadīth the majority of the jurists legalize waqf. They derive from it the principle that the possession (milk) of the asset given in waqftransfers to Almighty Allāh. And because of this principle they illegalize selling and gifting of the waqf-subject (Badr al-Dīn al-'aīni 2008, vol. 14, 394).
WAQF RETROSPECTIVE TO SHARĪ'AH-OBJECTIVES OF TABARRU'ĀT
Waqf is one of the contracts of tabarru'āt. This dictates that it will serve the objectives of the tabarruāt as laid down by the Sharī'ah. We will highlight some of these objectives, and then look into applied waqf, that comes with conditions and maxims. These conditions and maxims sometimes become hurdles between waqf and achieving the objectives of tabarruāt.
Higher Sharī'ah Objectives of Tabarru'āt Served by Waqf
As we have mentioned in the previous paragraph that waqf was a new type of charity (tabarra), introduced by Prophet Muhammad (SAW) to the Muslims. Now we shall take a step further in explaining the sharī 'ah objectives this new type of charity is designed to realize. The higher objective of legislating tabarru'āt is providing mutual help (muwasat) to each other. Mutual help amongst the people can pursue individual and social wellbeing. Waqf given its special features to retain the substance and give the usufruct, provides mutual help for the people in the utmost manner. Waqf gives birth to social solidarity, friendship (mawaddah), and brotherhood (ukhuwwah) amongst the people. It is reported that the Prophet (SAW) said that "the likeness of the believers in their mutual love, mercy and compassion is that of body; when one part of it is in pain, the rest of the body joins it in restlessness and fever." (Muhy al-Dīn Abī Zakariya b. Sharf al-Nawawī 2004, vol. 8, 355)
Economical and financial crisis of both individuals and communities is similar to fever and restlessness of a body. Muslims both on individual and community level have to show concern and spring to assist each other. This is the proposition of this Hadīth. Waqf with other tabarru'āt contracts, plays a significant role in inducing love, mercy, and compassion in members of the society. It can boost the economy of a society irrespective of whether the people are poor or rich. Waqf can furnish those needs which might be difficult for individuals or small communities to execute. For instance, waqf hospitals and waqf schools offer medical and education services to every member of the society. It might take years for an individual to accumulate wealth and build a hospital compared to pooling in waqf fund, investing and building public institutions like hospitals and schools.
The aforementioned Hadīth calls for brotherhood, solidarity, social and humanitarian cooperation. To achieve these virtuous principles, mutual assistance of human for human out of altruism and love is important. Display of human liability for each other can be achieved by waqf. Liability for each other takes part in enrichment of the human society such as making waqf schools, libraries, buildings, hotels, farms, and masjids. It advances social and economic developments. Same as the Wills (wasiyah) and giveaways (hibah) work on salvaging the human lives, assist relatives without heirs. Waqf resembles giveaways, charity (Sadaqah), and alms (zakāh) in linking kinship, maintaining family bonds, and eradicating poverty, misery and begging. Waqf with its other sister donations can be employed in the charitable social, economic and philanthropic works such as building shelters for orphans, homeless, and disables (Jamīl Hamdāwī, 2014).
In another allegory, the Prophet (SAW) portrayed the believers as one structure. Abu Musa narrated that the Messenger of Allāh (SAW) said: "the believers for each other are like a structure, parts of which support other parts."(Muhy al-Dīn Abī Zakariya b. Sharf al-Nawawī 2004, Hadīth no. 2585)
Each brick in a wall is a source of strength for the other brick. Muslims in their day to day life have to behave in this manner. Here again individuals and organizations can support their co-humans through waqf projects. Waqf projects can create job opportunities and eradicate poverty. Adding onto curbing economic challenges, waqf also has the potential to provide resources for environmental issues. For instance, planting mangroves for protection from tsunami, planting trees to prevent soil erosion, dredging rivers to avoid flash floods, building dams for water and electricity, and you may continue naming it, all are manageable and achievable by waqf. All in all, these are projections of the Hadīth we quoted which pursue the higher objective of sharī'ah in one way or the other.
Specific SharVah Objectives of Tabarru'āt Served by Waqf
Ibn 'Ashur (2006, 303) wrote the specific objectives of tabarru'āt to be four, namely:
(i) Proliferating donations and gifts;
(ii) Donations to be made voluntarily;
(iii) Providing rooms to the terms held by the benefactors;
(iv) And avoid making donation an instrument to violate property of others.
Waqf projects have to comply with these objectives. The first and utmost sharī'ah objective of tabarru'at is proliferation (takthīr). Waqf like other sister concepts under tabarru'āt is legalized to provide benefit to the people. This implies that proliferation of waqfis equally necessary as the application of waqf. This is fairly logical, because scarcity of tabarru'āt and waqf properties will decrease the benefits for the mankind. Human covetousness (shuh) as stated in verse nine of chapter al-Hashr (59: 9) is of the worst obstacles that oppose the proliferation. Adding onto this, the masses should be educated about the 1001 benefits waqf can provide to the people. The lack of education has led people to believe that waqf is only valid if it is applied as similar to regulated types of charities such as giving alms (Zakāh). When paying the obligatory charities, the focus is to exonerate the donor's due. In order to avoid pending dues, the donor has to be vigilant in terms of the amount due on him, time of payment, and the qualified recipients. The nature of waqf is not similar to obligatory charities, but in practice a large number of Muslims do treat waqflike the former. This marginalizes the application of waqf. Instead of letting waqf offer a wide range of services, they limit it to religious services like building masjids, religious schools, and their likes only. Services which apparently do not look religious are ignored due to lack of knowledge. In consequence, they abandon numerous social welfare services. A simple scenario is worth mentioning here is that within Petaling Jaya, Kuala Lumpur there are infinite welfare houses for the destitute, homeless, and old people. These houses are provided by non-Muslim individuals and organizations. Muslims through waqf could have offered these services in a better and affective way.
The Particular Shariah-Objectives (al-maq&sid al-juz'iyyah) of Waqf
The special feature of waqfwe discussed above indicates to two particular objectives of waqf. One of the particular objectives of restraining the corpus and donating the yield is to provide benefit to the recipients and rewards for the donor in perpetuity. In other modes of charity and donation, the needy and destitute receive assistance be it in money or be it in kind within the life time of the donor, or when the donor has the means. So the benefit rendered to the recipients is on short term basis. In waqf the donor allocates his assets for the needy which will generate benefits even after his death. Or the donor allocates his assets for the needy when he has the means, which will provide a continuous assistance to the needy even when the donor is in his rainy days. This objective is supported by the Hadīth reported by Abu Hurayrah that the Prophet (SAW) said: "When a person dies his deeds come to an end except three: everlasting-charity (sadaqah jārīah), or beneficial knowledge, or pious children who could pray for him." Scholars opine that the word "sadaqah jārīah" in this Hadīth denotes to waqf which can continue benefiting others even after the donor dies. In this way, the donor will earn the rewards of his charitable act in perpetuity (Zafar Ahmad al-'Uthmāni 2006, vol. 13, 97). And on the other hand the benefit generated by the corpus for the needy is everlasting. Jamāl al-Dīn Al-Zayla'ī (d. 1360) while elaborating the conditions set by 'Umar Ibn al-Khattāb in the aforementioned Hadīth "the land would not be sold, nor given as gift, and neither would it be inherited" wrote that these conditions set by 'Umar were to assure the perpetuity of his waqf and continuous reward for him (Al-Zayla'ī 2002, vol. 3, 733).
The second particular objective of waqf indicated by its special feature i.e. to restrain the corpus and donate the yield is to provide benefits to ummah as a whole instead of individuals. Most of the Hadīth on waqf underlines this point that the benefit generated from the restrained corpus was meant for the entire ummah. This is substantiated by the Hadīth in relation to a well in Medina called Rūmah. The migrants from Makah bought water from the owner of the well for their consumptions. Upon encouragement by the Prophet (SAW) 'Uthmān Ibn 'Affān voluntarily bought the well and came to the Prophet (SAW) saying that "you can do whatever you desire with it." The Prophet (SAW) replied: "Yes make it a water source for Muslims and its reward (ajar) for you" (Al-Zayla'ī 2002, vol. 3, 734). Here we can see that the benefit rendered by the well was endowed for the Muslims in general. Similarly, other Hadīths reported in relation to waqf carry the similar idea of extending benefit and support to the entire ummah. The generations yet to come will have their rights to enjoy the yield of a waqf project endowed centuries ago.
HUMAN OBJECTIVES
Following onto the aforementioned discussion, the particular objective of waqf was realized through projects of certain nature. The classical projects depicted from the Hadīth text were masjids, houses, wells, guest houses, farms, lands, animals, etc. These projects generated income and harvests as revenues for the recipients in the case of lands and farms. On the other hand, some waqf projects served the recipients directly by providing a place to take shelter in the case of houses and guest-houses or water in the case of well. Projects in the case of masjids, provided a place of worshiping and learning. Under the rubric of human objectives (maqasid al-mukallifin) people utilized waqf to cater their social, economic and spiritual needs. They either tuned the waqf into service-providing projects such as schools providing free education, hospitals with free or discounted treatment and so on. Or they designed the waqf into income-generating projects such as the leasing of waqf-land and property. The rental income of these projects was then invested for fulfilling the needs of the ummah. The contemporary projects are not much different in nature, but the form of services has taken a new shape in response to the contemporary era. These services are considered legal as far as the changes in waqf born out of human objectives does not oppose the objectives set by the Sharī'ah. Al-Shatibi in his al-Muwafaqat stated that the intent (qasd) of the humans and the law-giver (Shari') both have to be in harmony (al-Shatibi, 429). The waqf is a legal-means (wasa'il al-Shar'iyyah) designed by the Sharī'ah to achieve certain objectives such as welfare and wellbeing in the case of waqf. These are waqf s essential objectives. When people apply waqf for service or income generating projects, they have to ensure not to compromise on the essential objectives aimed by the Sharī'ah.
Maintenance of Waqf Properties: Replacement (Badl) and Substitution (Istibdāl)
The preliminary discussion on Sharī'ah objectives of waqf pointed that as a new form of charity it was meant to offer perpetual benefit to people. This is considered as a particular Sharī'ah objective of waqf (Maqasid juz'iyyah). This objective also distinguishes waqf from other forms of charity especially zakāh (alm-giving) and sadaqah fitr for both are limited time wise. The waqf in order to serve its particular objective is guided by terms and conditions. Since these terms are the means to obtain the latter objective, they are known as the mediums (wasa'il) in Maqasid discourse. One of the conditions in relation to the object given in waqf (mawqüf) is that it should be a durable object that can give benefit while maintaining its corpus. Objects such as food and drink cannot be made waqf because it has to be consumed (istihlak) in order to give benefit. The benefit generating from such objects will be for once only upon its consumption, whereas waqf is supposed to generate perpetual benefit. The four scholars have stipulated this condition. However, the Hanafi and Maliki Schools according to one opinion have given permission for food (such as wheat), Dirhams, and Dinars in waqf provided that these are given on the basis of future sale and replacing deal. They permitted waqf of these items because the latter could be replaced by the beneficiaries (mawqüf 'alayhim) who took the Dinar and Dirham for investment or took the wheat for farming for instance from the waqf authority. The returning back of the items by the beneficiaries replaces the given items maintaining it for the next service. And in this manner the corpus remains and the benefits perpetuate. However if these items are made the object of the waqf directly, it will not be permitted because the nature of these items are not durable to generate benefit continuously (Al-Mawsu'ah al-Fiqhiyyah 2006, vol. 44, 166).
The condition set by the major Legal Schools to only accept durable items for waqf and an exception to the rule for non-durable items that can be replaced by future sale or any other deal that requires returning of the given items supports our deliberation that the particular Sharī'ah objective of waqf is to perpetuate the benefit from the corpus for the people. Through this particular objective, the waqf will be able to serve the higher objective of Sharī'ah such as mutual help, individual and social wellbeing, brotherhood, solidarity, economic growth and stability, poverty alleviation, education, medical services, and so on. The Sharī'ah did not only depend on the ongoing condition to realize these objectives. It also took some other measures such as giving priority to the maintenance (al-'imarah) of the corpus over the distribution of the benefits to the beneficiaries.
In order to discuss the maintenance of the waqf-corpus, we are commencing with Islāmic Fiqh Academy India's resolutions in relation to istibdāl (substitution) and badl (replacement). The resolutions highlight situations and circumstances where the former two maintenance concepts are applied with certain conditions.
Question and Responses of IFA
Question no. 1 posed by IFA to scholars can be summarized as: The 1947 India-Pakistan separation saw many waqf-properties abandoned and isolated. Punjab, Haryana, and Delhi, the migration of Muslims to Pakistan from these areas saw vast Muslim habitant areas vacated leaving behind under-utilized waqf-properties. Due to absence of Muslim residents, waqf-properties such as Muslim cemeteries, madrasahs, khanqas, and etc., could not be utilized according to the original purpose of establishment.
(a) Can these waqf-properties be sold and new waqf-properties be erected according to the original establishment purposes in areas where Muslim residents are dominant?
(b) Can such isolated waqf-properties be given to government or any individual in order to acquire any other land and building in which the waqf could be reinstated according to the original objectives?
(c) Can these abandoned waqf-properties be sold and its money utilized for Muslim welfare, education purpose, or any other pious purpose?
In response to (a), most of the responding scholars agreed with the substitution of abandoned waqf-properties that no longer can serve the original waqfobjectives. Due to under-utilization, there is danger that the government and non-Muslim parties will try to seize these abandoned waqf-properties. The scholars opined that such waqf-properties could be sold and using that money another waqf-property could be established in line with original objectives set by the endower (wāqif)The reason behind this permission is the realization of the particular objective of waqf which is benefit (nafa1). Since in substitution, the new waqf-project is still serving the objectives set up by the endower, the benefit for the beneficiaries is intact. The scholars referred to al-Bahr al-Rā'iq of Ibn Nujaym (vol. 5, 219): "When the waqf is in a state that it cannot benefit the needy (masākin), then the Qadi can sell it and with its price buy another property for waqf. Only the Qadi has this right." (Mujahid al-Islām Qasimi 2012, 35)
Some of the scholars referred to the terms and conditions set by Ibn 'Ābidīn al-Shāmi in order to apply substitution and replacement. The most important conditions are:
1. Land-waqf should not be sold for lower than the market price.
2. Special responsible and just management members should be appointed for the substitution of waqfor at least the management should consult the scholars on every stage of substitution.
In the light of the above, the scholars also permitted the replacement (badl) proposal in case (b). The abandoned and under-utilized waqf-property can be given to the government or individual for another property that will serve the same waqf objectives set by the original waqf endower. (Mujahid al-Islām Qasimi 2012, 36)
However, in reference to case (c), most of the scholars did not permit selling the abandoned waqf-property and using the money for welfare and education of Muslims. Their main concern was not taking into consideration the original objectives set by the wāqif (endower). These scholars referred to Ibn 'Ābidīn al-Shāmi's statement that (vol. 4, 445) "scholars have stipulated consideration of endower's objectives as obligatory (wājib)." On the other hand some scholars considered the perimeter of endower's objectives wide enough to include objectives he did not stipulate. Education system which offers both religious and worldly education and other good deeds are part of the endower's objectives. For them, selling the abandoned waqf-property and using the money for new waqf other than the objectives stipulated by the endower is permitted. (Mujahid al-Islām Qasimi 2012, 36)
CONCLUSION
This study is limited to discussion of waqf-properties other than the masjids. The waqf for masjid is a special type of waqf which cannot be discussed under substitution and replacement of waqf-properties.
We have seen in the ongoing discussion that waqf is part of tabarru'āt-Islāmic philanthropy. However, waqf was introduced by the Prophet as a new type of charity. Other types of charity, the rich donates and the beneficiaries enjoy the benefit until the donated amount or goods are exhausted or consumed. In case of waqf, the corpus remains and the usufruct are spent or distributed. By this token, waqf withholds greater interests (maslahah) for the people.
Waqf serves the three higher objectives of Sharī'ah:
(i)Muwāsāt (mutual help). This pursues individual and social wellbeing.
(ii) Mawaddah (Social solidarity)
(iii) Ukhuwwah (brotherhood)
These higher objectives are expressed in a Hadrth reported in Sahih Muslim (Hadrth no. 2586): "The likeness of the believers in their mutual love, mercy and compassion is that of a body: When one part of it is in pain, the rest of the body joins it in restlessness and fever."
Often people see waqf as a rigid concept which does not have flexibility in terms of management and distribution of its usufruct. The reason for this misunderstanding is conceiving the waqf only on the surface level and ignoring in the inner dimensions that assist the waqf to function in order to serve the higher objectives we mentioned above.
Waqf is supposed to serve the specific Sharī'ah objectives of tabarru'āt. In the discussion we listed down four specific objectives. The most important objective is proliferation of waqf. Unless the two particular objectives of waqf are secured, waqf will fail to serve the four objectives of tabarruāt. The two particular objectives are:
(i) Providing benefit in perpetuity. This is supported by the sadaqah jārīah Hadrth which explains that charity is on two types. Continious and non-continous charity. The waqf is a continuous type of charity that will contribute to the good deeds of a person even after his death. Similarly, 'Umar Ibn Khattāb's two conditions for the waqf (1) the waqf-land will not be sold (2) nor given as gift and (3) will not be inherited.
(ii) Provide benefits to the Ummah both on individual and societal level such as hospital, well, school, cemetery, education, etc.
The concept of substitution (istibdāl) and replacement (badl) is meant to manage the corpus and the usufruct of the waqf. Like the nature of human that is limited to time and space, waqf-properties are also limited. The corpus of the waqf that is supposed to generate perpetual benefit can decay because of internal or external factors. In case of waqf-properties in India, we saw that places where waqfwas established were disserted due to migration of 1947. In other cases which were only discussed in theory was the situation where the corpus decays and no longer can generate benefit due to internal factors such as the building falling apart or land can no longer produce harvest. In all these cases, Sharī'ah has given permission to sell the waqf-property and use the money to buy another property to establish a new waqfthat will serve the same purpose set by the original endower or replace the non-functional waqf-property with another property. We saw in the resolution of the Islāmic Fiqh Academy India that they gave permission to substitution and replacement with one backbone-factor. All the references they cited pointed to the factor that the original purpose stipulated by the endower will not be compromised. Substitution and replacement is only permitted if both concepts will continue the purpose of the endower. Cases where after substitution and replacement, completely a new waqf is established that does not realise the purpose stipulated by the original endower, majority scholars disallow it. Those minority who permit such practice considered the implication of endower's stipulation as general inclusive of all types of good deeds whether the endower stipulated it or not.
Ignoring the endower's stipulation will have a direct impact on the specific Maqāsid of philanthropy. People will be discouraged to donate their property for charitable purposes when they will see the management not respecting their terms and conditions. This will affect volunteerism and proliferation of waqf.
This study shows us that functionality of a waqf-project can be evaluated by looking at the degree of Maqasid al-Sharī'ah achieved on various levels. Starting from the particular Maqasid of waqf, if perpetual benefit is generated for the community or the community is able to enjoy the benefit generated by corpus of the waqf then such waqf-property is considered to be functioning. This will also allow the waqf to achieve four specific objectives of donation in Islām and the three higher objectives of the Sharī'ah.
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Abstract
Waqf is a charity in which corpus is maintained and the usufruct is given to the beneficiaries. The continuity of the usufruct depends on the maintenance and management of the corpus. One of the modes used both in classical and modern times to maintain waqf-properties is substitution of one waqf-property with another known as istibdāl. This paper reads into Istibdāl, selected resolutions of Fiqh Academy India and scrutinizes them under the Sharī'ah objectives of waqf and tabarru'āt (donation). The finding shows that modes of Istibdāl permitted by Islāmic law realize the Sharī'ah objectives of waqf concomitantly. Modes which were not permitted oppose the objectives of the Sharī'ah. This work is a potential guide for institutions and committees involved with the development of waqf-properties using innovative financing modes.