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27Сравнительный обзор законодательной и нормативно-правовой структуры вакф в Узбекистане
Турсунов Искандар Мухаммадиевич
факультет исламских финансов и экономики, INCEIF University, itursunov2020@gmail.com
Вакф уже несколько сотен лет играет важную роль в справедливом регулировании социально-экономических отношений в исламском мире. Вакф обеспечивает справедливое распределение богатства между людьми и создание активов и услуг с добавленной стоимостью. До советской колонизации вакф играл важную роль в социальной и экономической жизни стран Центральной Азии, особенно в Узбекистане (Туркестане), но во время колонизации вакф полностью исчез. В данной статье рассматривается современное состояние вакуфа в современном Узбекистане, существующая правовая база, а также недостатки в законодательстве, которые являются препятствием для его развития. Кроме того, в статье обсуждается текущая практика вакуфного фонда Узбекистана и его проблемы.
Ключевые слова: Узбекистан, вакф, вакфный фонд, правовая база, законодательство.
1. INTRODUCTION
The Republic of Uzbekistan is the country with the largest population (35.8 million) in Central Asia. More than 96% of the population are Muslims. The Republic has great potential for the introduction and development of Islamic finance. According to the survey of United Nations development program demand for Islamic finance in Uzbekistan. About 60% of businesses and 68% of individuals do not resort to bank lending, the major reason is because of religious beliefs. If Islamic financial institutions start operating in Uzbekistan, 61% of businesses and 75 % of individuals are ready to become their clients. Additionally, regarding the waqf, 36 percent of businesses and 46.81 percent individuals are in opinion that there should be legal framework for Waqf land and properties, while 35 percent businesses and 46 percent individuals would like to see transparency in Waqf activities. 36 percent of businesses and 34 percent individuals were aware of the Waqf concept, consequently, 49 percent businesses and 62 percent individuals are not satisfied with the nature of the Waqf activities in the country (Jakhongir,2020, ADB, 2018). This practical paper discusses the current state of waqf in modern Uzbekistan, waqf management, existing legislation on waqf, gaps in legislation, and opportunities for establishing waqf ownership and its development. The first part of the article provides brief information on Waqf and its establishment conditions, as well as the history of Waqf in Uzbekistan. The second section provides a brief literature review of waqf research studies. The next part provides information on the existing waqf legislation and practice in Uzbekistan. The 3-5 parts examine the existing shortcomings, problems in Waqf legislation, and current practices with research findings. The sixth section provides information on waqf legislation in other countries. In the final parts, there are a proposed cash waqf model and regulatory framework for waqf administration, recommendations, and a conclusion on the work that needs to be done on the development of waqf in Uzbekistan.
2. LITERATURE REVIEW 2.1. Waqf Institutions
Islamic societies across the globe had flourished in every aspect of their social and economic spectrum and its roots can be traced back to the waqf institutions that were established in these societies at that time. According to Daud (2015), Baqutayan, et, el (2018), Budiman (2014), and Ambrose, Aslam, Hanafi (2015),
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earlier the usage of waqf institutions were extended to the larger spectrum of the Muslim society.
In the context of the contemporary practice of waqf among various Muslim majority countries, the activities of waqf institutions are mostly confined to funding religious centric and charity related activities. Researchers like Hasan and Siraj (2016), Alltqan (2018), and Shirazi, Obaidullah, & Haneef (2015) conducted their study on waqf in the context of Bangladesh, Indonesia, and Pakistan respectively, and asserted that immovable waqf properties in these countries are highly under-utilized and left idle. In order to overcome such adversities cash waqf has started gaining popularity among various countries where waqf institutions exist. According to Alltqan (2018), Indonesian Waqf Institution (BWI) started accumulating movable assets in the form of cash waqf not only from the rich Muslim segment but also from the middle-class segment.
The right and transparent governance and organization structure of Waqf largely contributes to the success of Waqf institutions in countries. Obviously, good governance and effective functioning of organization structure could influence the sustainability of Waqf benefits for the public (Mutiara Dwi Sari, Ab Aziz Yusof, Ahmad Shaifful Anuar, 2016). Therefore, most of the Waqf administration institutions' vision, missions and objectives match the scope and framework of Sustainable Development Goals or SDGs introduced by the United Nations (Mohammad Abdullah, 2018). This is not surprising since the success of SDGs is very much dependent on the contribution of the philanthropic sector i.e., Waqf and endowment, besides active involvement of private and public sectors (Mohammad Abdullah, 2018). The Waqf played an important role in the socio-economic life of the three khanates (Bukhara, Khiva and Kokand) in Turkestan. At the end of the 19th century and the beginning of the 20th century, after the Russian Empire took possession of the khanates in the Turkestan region, at first it took over the fertile state lands belonging to the khanates, and then the waqf and private land areas. With this, waqfs and the concept of waqf gradually disappeared. In Uzbekistan, studies and scientific works on the history of Waqf have been carried out, new studies and researches are ongoing. But in modern Uzbekistan, there is not enough research on the procedures for introducing Waqf property and creating its legal basis.
2.2. Waqf
Words of waqf originally come from an Arabic word waqfa which means to hold, to stop or to refuse the property. On the Shariah perspective, it is said to keep the original of an asset and spend the profit to donate for sake of Allah Ta'ala. By making a waqf, the profit from something is made eternal for the users of the waqf. The thing itself is retained, and the benefit from it is permanent.
There are different categorizations and taxonomies of Waqf. In relation to the different types of beneficiaries, there are four types of Waqf:
The charitable Waqf (al-Waqf al-Khayri),
The family Waqf (al-Waqf al-Ahli),
The joint Waqf (al-Waqf al-Mushtarak) Self-dedicated Waqf (al-Waqf 'Ala al-Nafs). Waqf can be categorized whether it serves a private few or the public as: Public Waqf Private Waqf
Waqf can be categorized according to the underlying waqf asset. This can be categorised as: Property Waqf Corporate Waqf Cash Waqf
Hence, waqf is also classified as an ongoing charity that benefits Muslims even after death. It was narrated from Abu Hurairah that the Messenger of Allah said: "When a person dies, all his good deeds end, except for three: constant alms (sadaqa jariya), useful knowledge and a righteous son who prays for him" (Sunan An -Nasai, hadith No. 3681).
Waqf consists of four basic continents that are waqif (the person who donates the waqf), mauquf (the waqf item), mauquf alaihi (the person who receives the benefit of the waqf) and sighah (the declaration of the waqf). Waqf property can be divided into two types which is movable property such as cash waqf and immovable waqf property such as land and building (Qizakga, 2000; Yayasan Waqaf Malaysia, 2015; Kahf, 2015, Sanep and Nur, 2011).
2.3. Waqf conditions
There are several conditions for a waqf to be valid. They are as follows:
The person making the endowment must be a person capable of disposal, that is, he must be an adult, intelligent person (in his right mind).
The waqf should be something that will continue to benefit while the original is preserved. It is not correct to give waqf to something that is finished with use, for example, food.
The endowment must be specific. It is not correct to endow something that is not assigned (undefined). That is, for example, if he says: "I endowed one of my houses", abstraction arises because he does not say which house exactly.
The waqf should be for good deeds. Because the purpose of it is to create qurab (closeness) to Allah ta'ala. Building mosques, bridges, drinking water, scientific books, spending on the poor and relatives. It is not right to give waqf to things that are not good. Such as endowment for shrines, blasphemous books, lighting lamps and candles on graves, or for their servants (sheikhs) who do these things. Because these things will be aiding masiyat, polytheism and disbelief.
Waqf is a binding agreement from the word itself, it is not permissible to break it. Because the Messenger of Allah s.w.t, may Allah s.w.t bless him and grant him peace, said: "Its origin cannot be sold, gifted, or inherited" (narrated by Bukhari (2764) and Muslim (1632) from Ibn Umar, may Allah s.w.t be pleased with him).
3. CURRENT LEGAL FRAMEWORK REGULATING WAQF ADMINISTRATION IN UZBEKISTAN
3.1. Current legal framework of waqf in Uzbekistan
In Uzbekistan, after independence, until 2018, there was no legal basis for the Waqf. First legal document appeared in 2018, according to the Decree (No.PF-5416) of the President of the Republic of Uzbekistan in 16th of April 16, 2018 "On measures to fundamentally improve the activities of the religious and educational sphere", the charitable public fund "Waqf" was established under the Office of the Muslims of Uzbekistan.
Based on this decree that year in 28th of august was adopted #708-F degree of the Cabinet of Ministers of the Republic of Uzbekistan, which says 189 shrines in the Republic transferred to the "Waqf" charity fund based on a free use contract.
Main functions of Waqf charitable fund:
Support citizens' initiatives aimed at increasing their religious, spiritual, and intellectual potential, preservation of national and religious values.
Construction, repair, reconstruction, improvement, strengthening of material and technical base of mosques and buildings of religious educational institutions.
Preservation, repair, improvement, use, regulation of activity and further development of infrastructure of shrines of historical and architectural value.
Financing the activities of religious educational institutions, research centres, material and social support of their professors, teachers, researchers, specialists, and students.
Material and social support of workers of mosques and shrines, including imam-khatibs, imam-naibs, mutawallis and muezzins.
Assistance in publishing and delivering to the population religious and educational works of the great ancestors, contemporary scientists, and writers, who made a huge contribution to the development of Islamic science and culture.
Further increase of the authority of shrines and places of worship of our country in the Muslim world, organization of pilgrimages to these places of local and foreign citizens, creation of necessary conditions for pilgrims and assistance in carrying out official events related to the pilgrimage.
Material and moral support to socially vulnerable layers of the population, including persons with disabilities.
The main sources of charity fund are money collected in donation boxes placed at religious sites, mosques, historic religious visitor places and others.
Donations to the Waqf Fund can also be made through mobile applications and the bank billing system. There are separate bank accounts for Zakat, Sadaqah, Waqf etc.
The use of funds includes operating expenses of mosques, maintenance and repair of mosques and historical religious sites, financial assistance to low-income families, and others. The following table provides information on the spent donation funds (as for October 2022);
PURPOSE OF USE (in mln. Uzbek sums)
1. Support initiatives aimed at increasing the religious, spiritual, and intellectual potential of citizens, preservation of national and religious values. 1 824
2. Construction, repair, reconstruction, decoration, strengthening of the material and technical base of mosques and religious educational institutions. 5 830
3. Preservation, repair, decoration of historical and architectural shrines, further development of their infrastructure. 53 702
4. Financing the activities of religious educational institutions, research centres, providing material and social support to their professors, researchers, specialists, and students. 15 771
5. Financial and social support for the employees of mosques and shrines, especially imams, deputy imams, mutawallis, muezzins. 91 166
6. Helping to publish religious and educational works written by great ancestors, mature scientists and scholars who made a great contribution to the development of Islamic science and culture. 2 765
7. Creation of necessary conditions for local and foreign citizens (tourists). 1 654
8. Support people in need. 76 235
Total 248 949
3.2. Current waqf practices in Uzbekistan
As we discussed above there is so far not any legal framework or juridical documentation to create waqf and procedure to governance of waqf, Waqf fund public charitable fund. All existing properties and collected funds by Waqf fund are using for charitable purposes.
Real estate - natural (legal) persons transfer their property to the Waqf Charitable Public Fund through a notary office based on a property gift contract. Through this contract, the Waqf Charitable Public Fund will have the right to own the property and dispose of it in accordance with the applicable civil legislation (Article 511 of the Civil Code) and local documents developed based on it.
Cash - Citizens' funds are transferred to special bank accounts of the Waqf Charitable Fund through the "VAQF-billing" system integrated into mobile applications and other payment systems, as well as banking services.
3.3 Issues and challenges of Waqf practice in Uzbekistan
Lack of law
Creation, acceptance, and management of waqf properties are carried out based on current civil legislation. In the current legislation, the concept of waqf does not exist and it is not. There are no legal guarantees of waqf properties. The lack of the regulatory framework as one of the greatest obstacles for expanding Waqf in Uzbekistan. Most legal problems exist because waqf is a religious concept that requires recognition and enforcement of the law. The religious concept of waqf based on old theories without serious reading, thus producing a legal framework which is also based on the interpretation of very long religious texts (Mohd Puad, Jamlus Rafdi, & Shahar, 2014).
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Low level of knowledge and awareness
The issue and challenges of a low level of knowledge and awareness among Muslims about Waqf and its benefits and importance in society.
The World Bank Group et al. (2019) has confirmed that there is a limited scope of research in the field of waqf, staff training, and public awareness of the excellent waqf potential for the benefit of the community. In Uzbekistan by stating that responsible agencies were not paying much attention to this area. Other factors included competition, lack of specialists, lack of educational institutions, etc (Jakhongir Imamnazarov,2020).
Lack of funds
To develop assets and waqf assets, financial aspects play an essential opening. The lack of funds has led to many planned development projects. One of the main reasons is the absence of waqf property legislation and insufficient legal guarantees. The lack of economic support and tax benefits for Waqf properties reduces the interest of local and foreign individuals and legal entities in creating Waqf properties. The lack of development of the Sharia-compliant Islamic finance market in Uzbekistan reduces the possibility of using Waqf properties for effective business projects. As a result, the efficiency of waqf funds decreases.
4. WAQF REGULATIONS IN DIFFERENT COUNTRIES
In most of the countries the Awaqaf are governed at the federal level except for Malaysia and Nigeria, where they are administered at the state level. Following discussion is about laws and regulations that govern awaqf in those counties. As mentioned, except in Malaysia, these laws cover the entire country. Also, the regulations cover mainly the technicalities of waqf administration i.e. they cover issues regarding the assets of the waqf, matters related to trustees (Muttawalis) etc.
WAQF ADMINISTRATION IN MALAYSIA
In Malaysia all the religious matters including waqf fall under the preview of individual states' Sultan or the Yang di-Pertuan Agong's authority. The State Islamic Religious Councils (SIRCs) or "Majilis Ugama" are the institutions have been created in all states, by the respective legislative assemblies and for the federal territories by the parliament. Their main responsibility is to assist and advise the Ruler on matters relating to Islam and Malay custom in state.
Just before the Malaysian independence the British had started a process of 'centralization' in Malaysian waqf system which continued even after independence, A series of laws at state level were passed in fifties (Perak in 1951 and 1965; Selangor in 1952; Terengganu in 1955; Malacca in 1959; and Johor in 1978) that essentially centralized the waqf system at state level. The main clause in these laws made State Islamic Religious Councils (SIRCs) sole trustee of all waqf properties. (Cizakca 2000). According to Mahmood (2006) "The term sole trustee of awqaaf asset' implies that SIRCs of each state have been legally appointed by their respective legislations to supervise all awqaaf assets and be responsible for their management and development. No other parties or
bodies are entitled to hold trusteeship power." SIRCs were empowered to appoint individuals or a committee to act on its behalf to preform duties of trusteeship.
On August 8, 2004, Department of Wakaf, Zakat and Haji was created. The formation of department was not intended to replace SIRCs, the institution that govern Waqf, Zakat and Hajj affairs at state level. The stated objectives for the creation of the departments were to co-ordinate, facilitate and enhance the existing SITCs. (Mahmood 2006b)
WAQF ADMINISTRATION IN TURKEY
Waqf as an institution in Turkey has a long history, it flourished specially during ottoman empire. Both immovable and cash waqf contributed immensely to benefit of the society. After the collapse of Ottoman empire, the waqf laws went through some reforms.
According to Dursun(2019) "Republican reforms abolished the Islamic waqfs and replaced them with "foundations", an institution adapted from the Swiss Civil Code as it was regarded practically more eligible to reshape the former system." These reforms were part of the Turkish Republic's new civil code which was introduced in 1926.
But things changed in 1967, as Cizakca (2016) put it "... as the country slowly democratized and an effective opposition emerged in the parliament, a reaction set in. Led by a powerful business tycoon, the late Vehbi Kog and a group of opposition MPs and academics, a new waqf law was promulgated in 1967. This law is considered to be the rebirth of the Turkish waqf system. Not only the property rights of waqfs were once again guaranteed, but also waqf-company links were strengthened. Now, a waqf could establish its own companies or a company could establish its own waqf."
The Law No. 903 which was passed in 1967 did have an impact on Turkish waqf system, and the number of endowments increased considerably. From 1923 to 1967, in the span of 44 years, there were only 73 new waqfs that were established whereas from 1967 to 1985, in the period of 18 years, 1,877 new waqfs were established. From 1986 to 1996 more than one hundred waqfs were established annually with the trend rising until it reached 439 new waqfs in 1996. By the end of 2013, the total number of new waqfs reached 4,774 (Cizakca 2020). In 2008 a new waqf law was promogulated, whose main feature was the introduction of 'Council of waqf. The council was made up of 15 members had broad powers including the appointment of trustees. These appointments are now subject of council approval. Appointed trustees can now be removed on the recommendation of the council with a verdict from local court. (Cizakca 2020).
WAQF ADMINISTRATION IN INDONESIA
In Indonesia waqf regulations are covered under Law No. 41 of 2004 and Government Regulation No. 42 of 2006. This law had mandated to setup a waqf board to promote and develop waqf land in Indonesia. In 2007 President of Indonesia signed a decree on the formation of Indonesian waqf board (BWI). (Hasanah 2014). According to Sunandar (2020) "The Law No. 41/2004 concerning waqf, it explains about waqf: the general provisions, basic of waqf, registration and announcement of waqf property, registration, and
announcement of waqf property, change in status of waqf property, management, and development of waqf property, Indonesian Waqf Agency, settlement disputes, guidance and supervision, criminal provisions and administrative sanctions, transitional provisions, and closing provisions. This waqf law invalidates all previous legal provisions of the law."
Simply put, Law No. 41 of 2004 regulates and oversees functioning of was in Indonesia, which is done at the national level.
WAQF ADMINISTRATION IN SINGAPORE
In Singapore, Waqfs are governed under 'Administration of Muslim Law Act' (AMLA) which was enacted in 1966. Its sections 58-66 and 73-75 cover regulations on waqf. Under AMLA, waqf is defined as "the permanent dedication by a Muslim of any movable or immovable property for any purpose recognized by the Muslim law as pious, religious or charitable". Under AMLA, Majlis Ugama Islam Singapura (MUIS) is designated to "administer all Muslim endowments and funds vested in it under any written law or trust". This provision of the act makes MUIS the only waqf authority in Singapore. It was given the authority to issue policy and to make decisions on waqf matters. It also has the power to appoint and replace mutawallis/trustees. It can also takeover abandoned waqf properties from the previous trustees or mutawallis. (Listiana and Alhabshi 2020).
Before the enactment of AMLA, the matters of waqf were administrated under "Muhammaedan and Hindu Endowments Ordinance" which was enacted on September 8, 1905. Subsequently on July 1, 1968 the Waqaf management authority was delegated to MUIS (Majlis Ugama Islamic Singapore). In order to perform its managerial duties on waqf matters, MUIS created a subsidiary called Wakaf Real Estate (Warees) Pte. Ltd., which is assigned the role of handling tenancy issues, maintenance, distribution payment to beneficiaries, etc. (Listiana and Alhabshi 2020). Prior to AMLA, not all waqf assets were registered with or monitored by MUIS. Based on the AMLA (Article 64), every Waqf in Singapore, whether made before or after July 1, 1968, had to be registered with the Assembly office. This registration is supposed to be dome by Mutawwali of the Waqf. Any Muttawali who failed to register the Waqf or gave incorrect information or did not allow inspection of waqf properties could be charged with a criminal offense with fines not exceeding $5000 or imprisonment not exceeding 12 months or both. (Risa et al. 2019). Due to enactment of AMLA all Waqf assets are now registered with and supervised by MUIS. So, AMLA resulted in central administration of Waqfs in Singapore.
Council Member
Fatwa Committee
Zakat and Wagf Strategic Unit -Wag| and Investment committee
r 1 Trustee-Private and Corporate Trustee V y Mutawalli Individual and Corporate Mutawallis (Warees)
Figure 1. Regulatory framework Related to Waqf sector in Singapore
Sources: Singapore Government (2009).
Figure 2. Waqf Administration structure of Singapore Sources: Shamsiah Abdul Karim (2010).
WAQF ADMINISTRATION IN KUWAIT
Waqf history in Kuwait dates to 1695, but substantially development started in 1920's and 30's. 'Directorate of Awqaf' was established in 1921 and was given the responsibility of overseeing and developing waqfs in Kuwait. Subsequently, a 'Board of Awqaf" was constituted that included members of the public in the administration of waqf. (Ahmed et. al. 2014). On April 5th, 1951, a royal ordinance (Marsum Amiri) was issued for waqf administration. The ordinance stipulated that awaqaf administration must be subject to ruling that are compliant to four Sunni madhabs and in those matters that are not covered by the Marsum Amiri, should be based on the Maliki School of jurisprudence. Later in year 1962, the Directorate of Awqaf was transformed into a full-fledged ministry and was named 'The Ministry of Awqaf' and in 1965 this ministry was given additional responsibilities of Islamic affairs, hence its name was changed to 'Ministry of Awqaf and Islamic Affairs'. Also, the waqf administration was now done by two subdivisions namely, division for waqf administrative affairs and division of waqf resources management. (Ahmed et. al. 2014). In November 1993, by virtue of a royal decree (no. 257) an institution named 'Kuwait Awqaf Public Foundation (KAPF)' was established. It was legislated all the waqf affairs to be transferred from the Ministry of Waqf and Islamic Affairs to the KAPF with reasonable autonomous administration. (Major responsibilities of KAPF included managing waqfs funds and assets. It is also supposed to co-ordinate with the government and non-government bodies in establishing new waqf projects. In short KAPF is a centralized federal body that overseas waqf administration in Kuwait. (Kamarubahrin and Ayedh 2018).
WAQF ADMINISTRATION IN ZANZIBAR
Since 1905 the administration of waqf institutions in Zanzibar have been through different phases. In that year the British established the 'Commission of Waqf and Trust Property' and laid down policies to ensure their control over waqf properties. Since that time till 1963 they made the laws that gave them (the British), full control over he waqf commission, including the nomination of the commissioners, for the Sultan to rubber-stamp the appointment. (Suleiman and Hamad 2016). After the independence in 1964, the new government issued many presidential decrees. Despite government efforts, this period witnessed mismanagement of waqf assets. Government, also,
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nationalized some waqf plantations and distributed them to people as three-acre plots. The Revolutionary Council Decree no. 5 of 1980 re-established Waqf and Trust Property Commission in Zanzibar. This decree was also aimed at dealing with issues of Islamic affaires, which were also centralized by the government, in addition to waqf related matters. (Suleiman and Hamad 2016). In 2007, Act No 2 was enacted which put the Waqf properties in Zanzibar under the supervision of the government-controlled and supervised institution called "Waqf and Trust Commission" (WTC).
WAQF ADMINISTRATION IN NIGERIA
According to Fa-Yusf et al. (2021) Waqf institutions in Nigeria are still underdeveloped. This has been the case since the fall of the Sokoto caliphate in 1903 (Sunni Muslim caliphate who ruled the West Africa between 1802-1903) where Islam and the Waqf administration flourished. However, some states in the country have tried to revive the Waqf institution such as Zamfara State.
In Nigeria, the institution of Waqf is governed by trustees as compared to it being governed by the law which is in the case with other countries such as Malaysia (Chabbal, 2020). There is no existing Federal law that directly overlooks the management as well as administration of Waqf in Nigeria. The only provision made for Waqf in the Federal constitution is in highlighting that all issues pertaining to Waqf are to be handled under the Shariah law (Oseni, 2012).
One challenge, for Waqf administration in Nigeria is the following the Maliki madahab which allows for properties endowed as Waqf to be revoked by the endower at any time of their choosing (Abubakar, 2014). Other challenges faced by the institution of Waqf are a lack of adequate Waqf legislation, the existence of unregistered Waqf properties and lack of proper public awareness of the concept of Waqf (Ahmad, 2019).
WAQF ADMINISTRATION IN PAKISTAN
In Pakistan, prior to 1947 the regulation of public Awqaf was covered under 'Wakf Act 1923'. After the creation of Pakistan in 1947, the 'Punjab Muslim Auqaf Act 1951' was passed. The Act created a Board which had limited supervisory powers over awqaf. The main functions of the Board were registration of awqaf, conducting inquiries about the administration of awqaf, and appointment of mutawallis. (Abbasi 2019).
No substantial change in the regulation of awqaf took place until 1959-60, when the West Pakistan Waqf Properties Ordinance and the West Pakistan Waqf Properties Rules of 1960 were issued, with the aim to regulate the religious endowments under the state apparatus. The Ordinances enabled an Awqaf Administrator to take over the control of a waqf property. Later in 1976 the Government of Pakistan federalized all Provincial Awqaf Departments through the Awqaf Federal Control Act 1976. But this policy of centralization was short-lived, and the power was given back to the provinces in 1979 by the Awqaf Federal Repeal Ordinance 1979. (Abbasi 2019).
In 1979 four Waqf Ordinances were promulgated for the four provinces of Punjab, Sind, North West Frontier Province, and Baluchistan. The main function of the
Provincial Awqaf Departments was to take over the administration and control of the waqf properties in order to ensure better management of the properties, to improve the standard of religious services, to ensure that incomes are used for the original purposes and to enhance religious education. (Abbasi 2019).
WAQF ADMINISTRATION IN BANGLADESH
In Bangladesh after independence in 1971 the governance of Waqf was placed under "the Ministry of Education", and then in 1972 it was brought under "the Ministry of Land Reforms and Land Administration". Currently, Awqafs are governed under the Ministry of Religious Affairs. As the principal trustee for all registered Waqf estates in Bangladesh, the Ministry determines the policies to govern Waqf estates and gives directions to the proper administration of Waqf propoerties. (Islam 2018)
In 1988, under the Ministry of Religious Affairs a separate institution 'Office of the Administrator of Waqf (OAW)' popularly known as 'Waqf Bangladesh' was established. The rules and regulation for Waqf administration provide for a Waqf Committee, which consists of Administrator, Deputy and Assistant Administrators. Currently, there is one Administrator, two Deputy Administrators and six Assistant Administrators. The OAW, with its head office in the capital city of Dhaka, looks after all registered Waqf estates in all eight divisions of Bangladesh, while the day-to-day operation is conducted by the respective Mutawalli committee through its 38 regional offices around the country. The Mutawalli is appointed orally or under a deed by which a Waqf is created. The Waqif himself may become the Mutawalli or he may lay down, in the Waqf instrument, the manner as to the succession of Mutawalli. (Islam 2018).
The Waqf administration, in Bangladesh, is highly centralized as the divisional and regional offices have no power to make decisions. According to section 47 of "the Waqf Ordinance of 1962", all Waqf properties whether existing or created after the commencement of the Ordinance, are to be registered with the OAW by the Waqif, Mutawalli, or the Waqf committee. (Islam 2018).
5. PROPOSED REGULATORY FRAMEWORK FOR WAQF ADMINISTRATION IN UZBEKISTAN
Right now, currently there is no regulatory framework is in place for Waqf Administration in Uzbekistan. It is proposed that Uzbekistan should use Draft framework published by Islamic Research and Training Institute (IRTI) of the Islamic Development bank in association with Kuwait Awqaf Public Foundation (KAPF) which was released in March 2012.
The framework law is a model waqf law that is to be adopted by countries in accordance with their respective legal systems and constitutions. In essence, the model law provides a harmonisation of rulings on various aspects of waqf that are available among the Islamic schools or jurisprudence as enunciated by adherent classical and modern Muslim jurists.
Following are main features of the proposed regulatory framework:
5.1 OVERVIEW OF THE PROPOSED WAQF FRAMEWORK LAW
The legislation specifies the definition of waqf and its different forms, as well as the creation and circumstances of waqf, along with its applicable norms, efficacy, and validity.
Preamble to the Proposed Waqf Framework Law
The preamble is the section of a law that explains the purpose and goal of enacting legislation.
The framework law effectively repeals any laws that conflict with it.
The preamble specifies a minister (the main regulator of waqf) who will be in charge of waqf affairs under the framework. In any country, this is the minister in charge of waqf matters.
The preamble also states that the status of waqf managers and stakeholders must be adapted to their missions and must meet the framework's requirements within a year of implementation.
In this regard, the framework law provides a mechanism for its implementation to take effect six months after its publication date.
Other Substantive and Procedural Provisions of the Law
This section of the law explains the definition, nature, and types of Waqf. Waqf is defined as "sequestering property and determining how it is used" in article 1 of the first chapter of the law. To sequester means to remove, separate, or seize something from its owner's possession under legal process and dedicate the same or its usufruct to the public or the state. The framework law primarily provides for the three types of waqf:
Charitable waqf, which is waqf run as a charity institution. The charitable waqf is further divided into waqf designated for charity and public services and waqf designated for persons with special characteristics.
Private waqf, which is a waqf designated for specific persons at the initial stage and then as a charity institution, except for cases of temporary waqf mentioned in this law, which can be designated for persons both at the beginning and at the end.
Hybrid waqf, which is a waqf designated both as a charity institution and for specific persons.
Procedure for establishing a Waqf under the Model Law
Under Islamic law, a waqf can be established when a person declares their intention to establish a waqf by donating a specific property for that purpose in front of a local judge or qadi. Following this declaration, the judge must ensure that the property donated is owned by the person who donates the property and then record (or register) the value of the donated property. To some extent, the Framework Law on Waqf replicates this traditional practice.
Chapter IV details the procedure for establishing a waqf and confirming it in accordance with the law. This chapter's articles 16 to 21 detail the requirements and steps involved in the procedure. Article 16 makes it a legal requirement for anyone who wishes to dedicate property for waqf to write a "waqf act" for that purpose and have it authenticated by the competent authorities. The waqf act is a type of trust deed and, in essence,
serves the same purpose. The competent authority is responsible for transmitting a copy of the authenticated act to the institutions named in the implementing regulation provided in article III of the preamble.
Conditions and Consequences of Creating a Legal Waqf
Chapter II of the framework law stipulates that a waqf may be initiated by one or more natural persons, legal persons, or both together. This provision simply states that a single individual or group of individuals (natural and legal) can establish a waqf. Initiating a waqf is possible for both human beings and entities with separate legal entity. These individuals would opt to reserve a property as usufruct, and the earnings from the property would be designated for charitable purposes by a term. Similarly, corporations and other entities with their own legal body can initiate waqf. The framework specifies that a waqf takes effect upon the dedicator's verbal or written intention. And law specifies the requirements for the Validity and Applicability of Waqf.
Governance and Provisions Regarding Specific Aspects of Waqf under the Framework Law
Regarding the management of waqf property, the law assigns specific tasks to two categories of individuals and organizations. Article 24 stipulates that in the initial tier, which is the level of the waqf as an organization, there must be a custodian designated as a manager whose appointment must meet all of the standards specified in the rule. The manager may be one or more natural or legal persons who meet the regulatory requirements.
At the state level, which is the second tier of the waqf management system, article 30 stipulates that waqfs shall be supervised by a government institution that provides them with management facilities specific to waqf institutions, solves problems they face, offers them support, and ensures that they fulfil their mission properly. In accordance with the principles of the framework law and the regulation, the regulation shall establish the relationship between this institution and waqfs in order to preserve the latter's independence.
Waqfs signify the persistent accumulation of capital for the public good. Even non-perpetual waqfs, such as extinct family waqfs, serve the public interest. Although waqf are viewed as an economic vehicle for social finance, their earnings are exempt from taxation under the law because they serve recognized public purposes. In accordance with the law, certain types of waqfs institutions, like all charity organizations, are granted tax incentives. Consequently, according to article 62 (Chapter IX), all assets and funds designated as charitable waqfs, as well as quotas reserved for charity work in hybrid waqfs, are exempt from all taxes and fees regarding publication in official gazette, as well as all legal fees at all levels within any jurisdiction (Abdel Mohsin, Aishath Muneeza,2020).
5.2 GENERAL WAQF MANAGEMENT REGULATORY
Waqf regulations might vary greatly between nations and jurisdictions, however the waqf core principles (legal foundation, waqf supervision, good waqf
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governance, risk management, shariah governance) provide a general foundation for waqf management. In the event that legal action is taken, local laws will control the resolution of any disputes.
The regulator's primary responsibility is to oversee waqf management, which includes making sure that Shariah requirements are met and that finances are handled openly and effectively. Building a solid support system is therefore necessary. Some examples include enhancing the role of the Sharia Supervisory Board, standardizing the waqf accounting and financial reporting system, evaluating the performance of waqf management, setting up a system to track operational efficiency, the economic and social effects on beneficiaries (Mauquf alaih), and working with financial institutions and Islamic microfinance.
A supervisory body's organizational design enables efficient oversight of the corporate headquarters and its operational units. The supervisory procedure places a strong emphasis on the proactive approach to reduce fraudulent behaviors.
Waqf management can be done in one of two ways: centralized or decentralized. Some nations, including Kuwait, Qatar, and several other MENA nations, have implemented the centralized model, while others have implemented the decentralized model, or both models simultaneously, as in Indonesia's case. The institutional and regulatory framework for waqf management and supervision is presented here.
In accordance with the local laws, each nation also has its own set of waqf regulations and supervision requirements. Typically, these laws follow each nation's official foreign policy. The waqf regulations may consider situations when existing waqf laws are silent regarding specific areas of waqf control and supervision such as temporary waqf and cash waqf (WCP, Indonesia,2018).
5.3 IMPORTANCE CASH WAQF IN UZBEKISTAN
In Uzbekistan, the cash waqf model has some practical experience, and further development and improvement of this model will be easier and faster to implement than other waqf properties. It is also a model that does not require much legal basis. Therefore, effective use of the cash waqf model will be appropriate until the legal basis for waqf is created.
Cash waqf has always been the first choice to finance any waqf project, including productive waqf, since waqf project naturally will be built by collecting waqf, including cash waqf as the most flexible type of waqf to finance various needs (Ismail Abdel Mohsin, 2013).
Due to ongoing land reforms and new developments in urban planning, the management of vacant land remains a somewhat complicated process. In time, these processes will find their solution. Together with increasing property prices, donating land or properties is not financially viable for most of the Muslim community members. This has led Waqf Fund Management to introduce cash Waqf as an option for Waqf creation in Uzbekistan.
Cash waqf is an important program for social benefit and poverty alleviation. To meet the criteria of a waqf
having perpetual value and to truly create a sustainably everlasting program, cash waqf must be productive. (Tutuko et al., 2017). Cash from Wakaf contributions and liquidated assets are pooled together to form a corpus (principal amount) and invested in shariah-compliant instruments. The net income from the investments is then channeled towards nominated beneficiaries and other shariah-compliant purposes. For example, widely implementing education-cash waqf model, cooperative and corporate cash waqf models in Uzbekistan will be very effective. The organizational structure of Cooperative and Corporate cash waqf models are depicted in the diagram respectively below.
a) Cooperative Cash-Waqf Model (Figure3) has been practiced in Uzbekistan. It is a decentralized waqf system established by the private sector in 1992 with the objective of providing for the basic needs of every district. Every district manages its own cash-waqf funds (Abdel Mohsin, 2009). During the studies, it was not possible to clarify the available information on this practice, but, given the acceleration of religious reforms in the early 90s, it can be understood that this practice was used in some areas.
Figure 3. Cooperative Cash-Waqf Model. Sources: Abdel Mohsin (2009)- updated and adapted to the Uzbekistan waqf system by author.
b) Corporate Cash waqf model (Figure 4) is more practiced in three countries with three different names: in Malaysia, known as Waqf An-Nur Corporation Bhd (1998), in Turkey, known as Sabanci Vakfi (1974), and in India, known as Hamdard Foundation (1906). The founders/donors under this model are not only individuals but also corporations, institutions, and organizations (Abdel Mohsin, 2014).
Figure 4. Corporate Waqf Model.
Sources: Abdel Mohsin (2014)- updated and adapted to the Uzbekistan waqf system by author.
6. RECOMMENDATION
Uzbekistan needs to establish a proper legal environment to enable development of Islamic social
finance in the country, especially regarding to Waqf regulation. Therefore, following suggestions shall be launched to develop Waqf in Uzbekistan: The most essential element for the growth of waqf in Uzbekistan is a legal framework, which currently does not exist. To formally recognise Waqf property in the legal system, it is necessary to implement a separate legislative act to be enacted.
Implement international best practises and adhere to the most recent global regulatory requirements. Adopting prudential rules and guidelines established by international standardsetting groups such as AAOIFI, IFSB, and IIFM is one approach. The AAOIFI requirements must be assessed and adopted considering the local legal and regulatory context.
Conducting on-the-job training in the field of Waqf Management by inviting industry professionals and sending applicants overseas for an internship to understand other nations' practises.
Furthermore, the following recommendations can be given to develop Uzbekistan's Waqf Foundation based on the waqf practises of the above-mentioned countries:
- To develop legislation on Waqfs, it is necessary to create a Working Group (WG) consisting of local and foreign representatives.
First, it is important to determine the specific tasks and goals of the Working Group.
Some primary duties of WG:
The study of advanced foreign (Malaysian, Singapore, Kuwait) experience in the practice of waqfs and legislation and implementation of research results on waqf legislation.
An inventory of existing legal documents that may be directly related to waqf legislation is conducted.
Integration of the Waqf concept and other related terms into current legislation.
- Develop rules and procedures for the formation of independent or autonomous waqf institutions. These independent waqf institutions shall be permitted to engage in financial activities such as financing, investing, and mobilising waqf assets (both movable and immovable) while ensuring the transparency of all waqf-related activities.
- To educate the people about the benefits they could gain in this life and the next through donating they assets to the Waqf. The coverage of the population segment should not be limited to persons with high incomes; rather, middle-income demographic segments should also be considered.
- Offer a reduction in the individual's income tax liability, in the form of allowances, to those individuals who actively and generously contribute to the waqf, in accordance with the amount they are able to give.
- As part of their commitment to social responsibility, businesses should increase their level of participation in waqf by increasing the amount of money they provide to the organization's endowment (CSR).
- To support small and medium-sized businesses and attract the poor to entrepreneurship, it is necessary to develop the implementation of the Cash Waqf Model.
7. CONCLUSION
Forming a new framework for the waqf law system in Uzbekistan is an Islamic management innovation that could bring tremendous benefits to the waqf institution in Uzbekistan. The novelty of this study lies in the proposed framework for properly regulating and managing waqf property that follows Islamic law and the Uzbekistan legal system in their application. Therefore, implementing the new waqf law could improve the development of waqf properties in Uzbekistan. Finally, and more importantly, the new framework can be a vehicle for encouraging more philanthropic and charitable activities within Muslim society and encouraging the private sector and investors to develop waqf properties.
A critical review of legal and regulatory Waqf framework in Uzbekistan Tursunov I.M. INCEIF University
Waqf has been playing an important role in the fair regulation of socio-economic relations in the Islamic world for several hundred years. Waqf ensures the equitable distribution of wealth among people and the creation of value-added assets and services. Till Soviet colonization Waqf has played an important role in the social and economic life of Central Asian countries, especially in Uzbekistan (Turkestan) but during the colonization waqf totally disappeared. This practical paper discusses the current state of waqf in modern Uzbekistan, the existing legal framework, and the shortcomings in the legislation that are an obstacle to the development of the waqf. Additionally, paper will discuss the current practices of Uzbekistan Waqf Fund and challenges. Keywords: Uzbekistan, Waqf, Waqf Fund, legal framework, legislation References
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