I have two points to make. First, the concern to restrict the benefits of awqaf to Muslims alone is mischievous and has no basis in Shariah. In religious awqaf e.g. masjids, the beneficiaries by default are Muslims. However, this is not so for social awqaf. The specification of the beneficiaries is the right of the waqif or the endower. Therefore, where the endowment deed clearly specifies the beneficiaries (these could even be non-human species e.g. a hospital for pets) the community must ensure that benefits indeed flow to them. In Islamic states, the judiciary took on this role. At the same time, whenever the state strived to assume this role, this was opposed by the judiciary and community at large. Where the endowment deed is lost and the nature of beneficiaries is unspecified, the community may decides to dedicate the benefits to fulfill social needs. In no way, non-Muslims are to be excluded from the beneficiaries. Indeed it is a good practice NOT to do so.
The basis for this lies in the practices of the companions of the Prophet (pbuh). When the early Muslims migrated to Madina with the Prophet (pbuh), they found the water there difficult to drink as they were accustomed to drinking the relatively sweeter Zamzam water in Makkah. So they went to the Prophet and told him about their difficulty, and informed him of a well in the city by the name of Rumah whose water tasted a lot like Zamzam. The problem, however, was that the owner of the well was a Jew who charged a high price for water. The Prophet (phuh) then exhorted to Muslims to come forward to buy the well of Ruma and endow it for the community. When Othman ibn ‘Affan came to learn of the Prophet’s exhortation, he went to the owner and offered to purchase the well. The owner declined. Othman however, persuaded him to sell half of the rights of using the well. Both agreed to an arrangement under which each one of them would have the rights of use on alternate days. Othman used his right to benefit both Muslims and non-Muslims providing them with free water. This had the consequence of the jew losing all his customers and forcing him to sell the other half to Othman as well. The price was a whopping twenty thousand dirhams.
If we document the best practices of waqf management, the above practice of the third caliph of Islam is a clear pointer to something more profound. This practice had the effect of enhancing the awqaf as well as removal of a bad practice from the society, i.e. of profiteering from basic necessities of people. I fail to see what was wrong about the idea mooted sometime back to create three universities on waqf land. It was unacceptable to a few irrational minds that benefits from the university should flow to all communities, not just to Muslims, even though the latter might have been the major beneficiaries. The universities were never established. Unfortunately, such frivolous arguments continue even now in the guise of concern for the community.
On another note, when we find bad practices in the form of overpricing in our so-called benevolent and voluntary sector in healthcare, education and microfinance, shouldn’t we be seeking right solutions in the glorious Shariah and in the practices of the noble companions of our Prophet (pbuh)?
There are excellent examples in the present world where the integration of waqf with the market has yield excellent results in terms of providing microfinance/ education/ healthcare at affordable prices. We need to replicate these.
Should we continue to raise red flags whenever there is a move towards developing the institution of awqaf, which includes not just the existing awqaf, but potential new awqaf? Should we continue to think in terms of talk in terms of corrupt practices, encroachments and what-have-you seeking to score political brownie points? Perhaps we have become too cynical to think positively. Indeed this mindset has led to transfer of waqf governance from the hands of the community into that of the government, which has proved to be no less corrupt, thus aggravating the problem and our cynicism. So cynical have we become today that if we intend to do a benevolent deed for the community, we create a Trust or a Society. We never think in terms of creating a school or a hospital as a waqf and cite the financial and non-financial costs of doing so. Can we not reduce the financial and non-financial cost of creating a waqf as compared to societies, trusts and non-profit-companies and ensure a level playing field? Can we not simplify the process of accountability of waqf creators and managers to the state-owned waqf boards? Can we not think beyond the state-owned waqf boards when we intend to do an act of waqf? Must a benevolent act (of waqf) be controlled through the cumbersome processes instituted by the state? In line with the early Islamic practices, the community and the judiciary should be capable enough to govern the awqaf sector. By the same token, will it not be a good idea for waqf development, if financial institutions compete with each other to finance a waqf and win the mandate purely based on merit of their proposal? Will it not be good for the health and efficiency of the newly established NAWADCO to compete with other FIs in attracting waqf managers with multiple financing options instead of seeking to be the lone player in the developmental game? In short, waqf has always been in the private domain, in the voluntary sector and must be allowed to remain so. This is my second point.
Mohammed Obaidullah | January 30, 2014