Wakaf State Sabah Enactment 2018

This Enactment may be cited as the Wakaf (Stateof Sabah) Enactment 2018.

Gazette. [01.01.2019 GN. 380/2018]

Interpretation

In this Enactment, unless the context otherwise requires:-

I assent,

TUN DATUK SERI PANGLIMA (DR) HAJI JUHAR

“Board” means the Wakaf Management Board (State of Sabah) 2018 established by the

Establishment of Wakaf Management Board (State of Sabah) Order 2018;

“cash wakaf” means any cash contribution, gold value or those similar thereto from any person for any purpose of wakaf;

6

“Chief Registrar of Wakaf” and “Registrar of Wakaf” means the Chief Registrar of Wakaf and

Registrar of Wakaf appointed under subsection 8(1);

“Court” means the Syariah Courts established under the Syariah Courts Enactment 2024;

“hibah” means a voluntary akad containing the surrender and transfer of title of any property of a person to another person during his lifetime without consideration or damages where the benefit of his property may be enjoyed in accordance with Hukum Syarak;

“heir” means a person who is entitled to inherit an estate pursuant to Hukum Syarak;

“Hukum Syarak” means Hukum Syarak according to Mazhab Shafie or according to any one of the Mazhab Hanafi, Maliki or Hanbali;

“istibdal” means substituting a mawquf with another property or money having the same value as or higher value than the mawquf, by exchanging, purchasing, selling or any other manner in accordance with Hukum Syarak;

“Majlis” means Majlis Ugama Islam Negeri Sabah established under the Majlis Ugama Islam Negeri

Sabah Enactment 2004 [No. 5 of 2004];

“marad al maut” means a fatal disease which fulfils the following conditions:

All words and expressions used in this Enactment and not defined in this Enactment but defined in

Part I of the Interpretation and General Clauses Enactment 1963 [Sabah 34 of 1963] shall have the meanings assigned to them in that Part to the extend that such meanings do not conflict with Hukum

Syarak.

For the avoidance of doubt as to the identity or interpretation of the words and expressions used in this Enactment that are listed in the Schedule, reference may be made to the Arabic Script for those words and expressions as shown against them therein.

Majlis shall be the sole trustee of all mawquf situated in the State of Sabah;

Majlis, as the sole trustee of any mawquf situated in the State of Sabah, may be made a mawquf ‘alaih for any such mawquf;

the Majlis may be made a mawquf ‘alaih for any mawquf situated elsewhere than in the State of Sabah, and for this purpose, the Majlis may make any arrangement with the trustee of such mawquf;

Majlis may establish a corporation or a company under the Companies Act 2016

[Act 777] to carry out any activity by the Majlis in the execution of its duties and powers under this Enactment;

9

Majlis may appoint or give written permission to any party to manage, administer and hold any mawquf on its behalf;

Majlis may declare the appointment of any administrator or manager in situation where waqif has appointed his own administrator or manager subject to the terms and conditions prescribed by the Majlis;

Majlis may establish any wakaf scheme or approve any institution to establish any scheme related to wakaf; and

Majlis shall be responsible to take any necessary action against any act of trespass of any mawquf.

It shall be the duties and responsibilities of the Majlis to ensure that all wakaf vested in it under this

Enactment be registered, administered, managed, supervised and developed accordingly.

The Majlis shall have all the powers to do all matters expedient or reasonably necessary for or incidental to the performance of its duties and responsibilities under this Enactment.

Vesting of mawquf

Any benefit, profit or interest from a mawquf shall be vested in the Majlis from the date of the commencement of the wakaf as provided under section 10, and the Majlis may claim any benefit, profit or interest of a mawquf from any person before the registration of the mawquf as provided under section 12.

All mawquf situated in the State of Sabah before the commencement of this Enactment shall, without any conveyance, assignment or transfer, and, in the case of immovable property, upon registration under the Land Ordinance [Sabah Cap. 68], vest in the Majlis, for the purpose of the wakaf affecting the property.

The Majlis shall take all necessary steps to vest in itself for the like purposes any such mawquf situated elsewhere than in the State of Sabah.

10

Power of Majlis to purchase property

The Registrar of Wakaf shall register any property purchased by the Majlis under subsection

as mawquf.

Power of Majlis to istibdal

The performance of duties and the exercise of powers pursuant to the delegation under subsection (1) shall be subject to the control and direction of the Majlis.

The Board shall inform the Majlis as to all actions and matters done by the Board pursuant to such delegation.

No delegation made under this section shall exclude the Majlis from carrying out or exercise by itself any of the duties or powers so delegated.

The Chief Registrar of Wakaf and Registrar of Wakaf shall be responsible for –

The Registrar of Wakaf shall act under the general control and direction of the Chief

Registrar of Wakaf.

waqif;

mawquf ‘alaih;

mawquf; and sighah.

Eligibility of waqif

has attained the age of eighteen years;

is of sound mind;

is not declared a bankrupt; and

is willing, is eligible to surrender his property as a wakaf for any charitable purposes in accordance with

Hukum Syarak.

keeping and maintaining or causing to be kept or maintained a register for all mawquf in any form or in any manner determined by the Board;

keeping and holding all instruments, document of titles or other documents relating to any mawquf vested in the Majlis;

informing the total of mawquf registered in the Register of Wakaf to the Majlis

12

Types of wakaf

A wakaf which has come into effect cannot be sold, charged, transferred or endowed as hibah by the waqif or inherited by any person.

Restrictions on wakaf khas

permission of the Majlis is obtained; or

it has been made by the waqif in the state of marad al maut and he subsequently diesdue to the illness, and provided that the wakaf has been made by way of sighah before two witnesses.

Registration of mawquf

Upon the creation of wakaf under section 9D, the chief Registrar of Wakaf shall register a mawquf in the Register of Wakaf and issue a certificate of registration as soon as may be practicable.

13

The Board shall provide a Register of Wakaf for –

The Register of Wakaf shall be the final proof as to the facts stated in the Register of

Wakaf.

All instruments which create, which become the evidence or which affect any wakaf, together with any document of title or other security relating thereto, shall be held and kept by the Chief Registrar of

Wakaf.

Notwithstanding subsection (2), no wakaf shall become invalid solely by reason of the

Wakaf is not registered.

Publication of list of mawquf

If a wakaf ta’liq is made to come into effect after the death of the waqif, the wakaf shall be valid to the extent of one-third of his property.

Wakaf irsod, wakaf muabbad, wakaf musyak or wakaf musytarak

For the purpose of this section –

The Chief Registrar of Wakaf may vary, review or revoke any guidelines or directives.

Any person who does not comply with such guidelines or directives is deemed to have failed to fulfill the requirements as required by the Chief Registrar of Wakaf which renders the wakaf as withdrawn, refused, revoked or as determined by the Chief Registrar of Wakaf.

Notwithstanding subsection (1), a wakaf is valid even if at the time the wakaf is created –

Any benefit, profit or interest obtained from a mawquf shall be deposited into the Wakaf

Fund.

Cash wakaf

through cash contribution or any other financial contributions from any person,association or institution;

by offering for sale of wakaf shares, or by issuing wakaf sukuk or any other instrument for valuable securities as wakaf; or

for the purpose of investment, of or in any property acquired, or for development of any mawquf.

The Board may accept shares endowed by any person, society or institution provided that the business carried out is consistent with Hukum Syarak.

Any property acquired or developed from the proceeds of the sale under subsection (1) shall be a wakaf.

Wakaf of proceeds from premise and products from agriculture on land owned, rented or leased

A waqif may wakaf –

if any of the conditions of wakaf is inconsistent with any written law;

if the mawquf is taken by any authority in accordance with any written law;

17

if the usage of mawquf fails to provide benefit, profit or interest as required by the waqif;

if the usage of mawquf fails to fulfil the purpose of wakaf;

if any condition prescribed by the waqif cannot be executed by reason of lapse of time or changes in circumstances;

if the Majlis wants to istibdal a mosque or site of a mosque which is a mawquf;

if any of the conditions prescribed by the waqif cannot be executed and the Majlis intends to execute the wakaf in the manner as close as possible with the conditions prescribed by the waqif; or

in other circumstances as the Majlis deems necessary.

The value of mawquf acquired by way of istibdal shall not be less than the current value of the original mawquf.

The Majlis shall istibdal any mawquf whether wholly or partly within a reasonable period accordingly.

If involves immovable property evidenced by document of title issued under Land Ordinance [Sabah

Cap.68] or any other law for the time being in force, the Registrar, after receiving a written application from the Majlis on the existence of wakaf for istibdal, shall endorse the word ‘wakaf’ in the document of title in which title are subjected thereto.

Abandoned mawquf in wakaf khas

For the purpose of subsection (1), the Majlis may determine the value of any benefit, profit or interest of the mawquf.

18

If the claim mentioned in subsection (1) is not paid, it may be recovered as a civil debt due to the Majlis.

Any mawquf which is destroyed whether wholly or partly may be redeveloped by utilizing the following sources:

Wakaf Fund;

Fund of the Majlis; or other permitted sources pursuant to Hukum Syarak.

If a mawquf is destroyed wholly and is redevelop, the property shall be a wakaf.

Where in a wakaf khas –

Any mawquf ‘alaih whose wakaf has become wakaf am by order of Majlis made on the ground under paragraph (1)(d) may apply to the Court for an order that the wakaf be reverted as wakaf khas, and the

Court may make any order as it deems just.

Where the Court allows the application made under subsection (2), the mawquf ‘alaih does not have any right to any benefit, profit or interest of the mawquf before an order made under that subsection.

The distribution of benefit, profit or interest

If a wakaf is endowed to asnaf zakat, the benefit, profit or interest from the mawquf shall be divided according to the portion of the asnaf zakat.

Section 30 shall apply to the benefit, profit or interest of any of the mawquf ‘alaih as mentioned under subsection (1) of this section who is dead or cannot be located without the need for any order in the Gazette.

Any person who intends to create wakaf may do so to his heir.

Where a waqif is in a state of marad al maut, he shall not wakaf to his heir except with the agreement of all heirs.

A wakaf is invalid if the waqif gives his property as wakaf by way of will to his heir except with the agreement of all heirs.

Wakaf to non-heirs

If a waqif is in a state of marad al maut, he shall not wakaf to his non-heir more than one-third of his property except with the agreement of all heirs.

20

A wakaf is invalid if the waqif gives his property as wakaf by way of will to his non-heir more than one-third of his property except with the agreement of all heirs.

Wakaf by way of will

Any person who intends to make wakaf may create a wakaf by way of will and shall commence after his death.

A wasi who has been appointed shall execute the wakaf by way of will made by the waqif.

A wasi shall, after the death of a waqif, obtain the agreement from all heirs to execute the wakaf if the waqif named the heir as the recipient of wakaf by way of will.

A wasi shall, after the death of a waqif, obtain the agreement from all heirs to execute the wakaf if the waqif named the non-heir as the recipient of wakaf by way of will exceeding one-third of the property of waqif.

A wakaf by way of will shall be executed pursuant to the provisions of this Enactment.

Rate of wakaf by way of will

For the purpose of this Enactment, the Majlis shall establish a fund to be known as the

“WakafFund”.

The Wakaf Fund shall consist of –

All benefit, profit or interest from wakaf am shall be paid to and become part of Wakaf

Fund.

All benefit, profit or interest from wakaf khas shall be utilized in accordance with the terms as determined by the waqif except for terms which are inconsistent with Hukum Syarak.

If –

payment of all costs, charges and expenditure for administration of any wakaf including the cost for maintenance and repair of any mawquf;

purchase of any property as a wakaf under section 5;

execution of any wakaf and financing the development of any mawquf subject to any terms and conditions as the Majlis deems fit;

payment of management expenses including allowance for the members of the

Board;

payment of any expenses incidental to the management of the Wakaf Fund which supposed to be done by the Board in discharging its functions and powers under this Enactment;

make investment under the wakaf scheme; or

23

reports of Wakaf Fund from time to time.

The financial year for Wakaf Fund shall begin on 1 January and end on 31 December each year.

Any person who, without the permission of the Majlis or the Board –

cause to be kept a proper account and other records in respect of the administration of Wakaf Fund;

cause to be prepared a statement of accounts of Wakaf Fund for each financial year;

cause the statement of accounts of Wakaf Fund to be audited at the end of each financial year by an auditor; and

immediately upon receipt of the statement of accounts of Wakaf Fund which have been audited under paragraph (c), submit the statement of accounts to the

Majlis for approval.

Notwithstanding paragraph (1)(d), the Majlis may direct the Board to submit the financial

The Court may, on the application of the prosecuting officer, order the person convicted of an offence under subsection (1) to demolish, destroy and clear all constructions, structures, obstructions or crops on the wakaf land or wakaf building, as the case may be, at the cost of such person convicted.

If the person referred to in subsection (2) fails to obey the order of the Court, the Majlis or Board may cause to execute the order by expending monies from the Wakaf Fund or other financial resources, and the Majlis or Board may claim any expenses incurred from such person.

If the claim referred to in subsection (3) is not paid, it may be recovered by civil action as a debt due to the Majlis or Board.

Where no order of the Court is made under subsection (2), any construction, structure, obstruction or crop on the wakaf land or wakaf building, as the case may be, shall vest in the Majlis and no person shall make any claim against the Majlis or Board relating to such construction, structure, obstruction or crop.

Administering or managing of wakaf am or wakaf khas without permission of the Majlis or the Board

prevents any mawquf ‘alaih from enjoying the benefit, profit or interest from a mawquf to which the mawquf ‘alaih is entitled; or