Enabling Regulations for Waqf: Private Financing & Sukuk
A concerned Indian Muslim brother once wrote: â€œthe new Waqf Law should comply with theÂ provisions of the Sharia law; but it should also take into account features from present dayÂ Economic system, so that centuries old archaic restrictions do not restrict use of Waqf property forÂ the growth of the community; for instance development of modern Muslim higher educationÂ institutions, hospitals, etc. Genuine sharia throughout the 600 year Muslim rule has always beenÂ flexible and nuanced, not dogmatic.â€
I cannot agree more. However, let us also take note of the fact that fiqhi rules pertaining to awqafÂ have undergone a revisit by contemporary scholars and academies. The flexibility that has beenÂ accorded by global bodies, such as, the OIC Islamic Fiqh Academy is perhaps more than adequateÂ to undertake large-scale development of awqaf properties for education, health care and otherÂ social needs. In most countries, it is the absence of national laws while in others it is theÂ inefficiency of national laws for awqaf that is responsible for the decline of this gloriousÂ institution.
We Indians are fortunate enough to have a dedicated and elaborate waqf law. However, this isÂ both an inefficient and ineffective law. Much of the present war of words over finer points of theÂ proposed amendments is going to enhance neither the efficiency nor the effectiveness of this law.Â It appears that discussions are focused either on non-issues, such as, apprehensions about possibleÂ flow of benefits to â€œotherâ€ communities, or issues of trust-deficit vis-a-vis the our own communityÂ leaders from religious, political, civil organizations. Clearly, such issues cannot be addressed byÂ adding more provisions and thereby, increasing the complexity of the law. Increased complexityÂ will only push a potential donor/waqif to consider alternative forms of non-profit organization,Â such as, trusts, foundations, societies that provide far greater operational flexibility and save costs.
In a democratic set-up, such as, India, one cannot overemphasize the role of healthy deliberationsÂ along the road to policy formulation. Indeed, a few Muslim organizations, such as, ZakatÂ Foundation of India have done a great service by bringing the issues in public domain forÂ discussion. (Read ZFIâ€™s 20 point analysis of the issues here.)Â TheÂ exchange of views on the proposed regulatory changes has largely centred around SacharÂ Committee recomendations on waqf revival, recommendations of Joint Parliamentary CommitteeÂ and reponses of the Ministry of Minority Affairs (Read the transcript of interview of Honâ€™bleÂ Minister of Minority Affairs to Two Circles. Net here.)
It is not difficult to see that the discussions surrounding the proposed law give inadequateÂ attention to the issue of waqf development by facilitating private financing. The doors to privateÂ participation have of course been silently opened by enhancing the maximum permissible lease
period from three to thirty years for provision of education and healthcare on a not-for-profit basisÂ and to ten years for commercial use of the waqf asset. Indeed there are other robust fiqh-compliantÂ models entailing partnership between waqf and for-profit financial institutions that have beenÂ implemented with success in various countries. There is no reason why these models that areÂ rooted in private and community initiatives (with a minimal role for the government) cannot beÂ replicated in India. This would provide a way for Indian Muslims to invest; to invest for halal
profits; and to invest for development of the community. The models and the enablingÂ environment required for their implementation remain largely untouched by the proposed law.
While recovery, preservation and development of old awqaf is of extreme importance, theÂ dynamic nature of the institution of waqf must be recognized. There must be a continuous flow ofÂ new awqaf if it has to play a meaningful role in the socio-economic uplift of the masses. One onlyÂ has to look around and see how the newly elected government in Egypt has already embarked onÂ a strategy for creating new awqaf. Egypt has old awqaf estimated at about half a trillion EgyptianÂ pounds ($82 billion), but the yield on them was very low at about 1.5 billion pounds annuallyÂ (apparently Indian awqaf fare worse; estimated at INR 1.63 billion on a total valuation of INR 1.2Â trillion as per Sachar Committee). Lack of financial expertise with managers is identified asÂ the major contributing factor and efforts are on to enhance the competency level of managers.Â However, more importantly, the policy makers have decided to bring in the sukuk that wouldÂ encourage and enable the formation of waqf through multiple small subscriptions to public offerÂ of sukuk, in contrast to the traditional method of waqf through a contribution from a singleÂ wealthy donor. The proceeds of the sukuk could then be used to purchase waqf assets. Doing aÂ waqf would then be easy and convenient. Managing waqf too would be easy and flexible.
Mohammed Obaidullah | July 15, 2012