Dr Hisham Dafterdar
Awkaf Australia Ltd
One of the important issues concerning awqaf is the appointment of an administrator (nazir or mutawalli) to manage the waqf. Shariah provides a principles-based criteria to the appointment of the nazir and to his duties and responsibilities. The guiding principles for the task of the nazir are based on three defined parameters: protect, respect and manage. These principles are not independent from each other and must be maintained and reflected in the nazir’s exercise of his duties and responsibilities.
The donor (waqif) through the waqf deed determines the objectives of the waqf and designates the nazir and his successors. In many cases, especially in family awqaf, the nazir is the waqif himself or his eldest son, then to be succeeded by other descendants. The nazir holds the title of the waqf property, exercises legal control and is bound by fiduciary responsibility and moral obligation to protect and administer the waqf for the benefit of the beneficiaries in accordance with the terms of the waqf deed. Nazirs are expected to comply with both the letter and spirit of the waqf document. The importance of the conditions of the waqif is indicated by the much-quoted maxim: “The conditions of the waqif have the same legal force as the edicts of the legislator”. However, the real challenge for the nazir is not what’s in the waqf document, but what isn’t in it. This means that if the waqf document is silent on a particular matter, then the issue should be referred to an appropriate higher authority for an opinion or decision. However, Nazirs have some “wiggle room” on many issues. Unlike legal rules which generally dictate what should be done without deliberation, Shariah principles enable the nazir to weigh the facts and decide what should be done in many situations he faces.
To a large extent, the task of the nazir has become formalistic and ritualized. This style of nazara has become more of a barrier to new awqaf than an attraction for more. No one goes to the university with the aim of becoming a nazir and there aren’t as many people qualified for the job. The authority of the nazir to act and make decisions on behalf of the waqf carries an immense responsibility and his duties are wider and more onerous than they are assumed to be. The role has evolved beyond the traditional duties of oversight and will continue to increase in significance. Nazirs should have a certain level of business skills and investment knowledge to support their role in monitoring the safety and performance of assets under their control. The task requires a multi-disciplinary approach, combining an understanding of Shariah, awqaf, sociology and finance. The nazir should be able to communicate and interact with different groups and be ready and able to reconcile and balance when he finds different interests and mindsets colliding.
Because of the nature of awqaf, its religious message and social application, it seems logical that those who are entrusted with the custody and management of awqaf properties are more religiously conscious and adhere strictly the literal wording of the waqf. They employ their faith when investing, and when things go wrong, they tend to believe that salvation is imminent, and that divine succour is just around the corner to solve all financial difficulties. With such an attitude, nazirs are more of a business risk than a service to the waqf. By not taking active interest in developing awqaf assets, nazirs could be costing their organisations and beneficiaries thousands in missed opportunities. In this stance, aptitude is more important than attitude. Nazirs have the responsibility to safeguard and grow assets in their custody and produce returns rendering it harder to act solely on their beliefs. Investment knowledge and development should be basic requirement for the nazir and not just an optional add-on.
While it is expected that nazirs would live by their ethical principles and always choose to do what’s right, awqaf history tells us a different tale. Awqaf nazirs have been portrayed as gurus of greed and deceit. Awqaf’s landscape has been tarnished by numerous scandals of awqaf that were hijacked by their nazirs. Historian Daniel Crecelius wrote about numerous cases of complaints raised to the qadis against corrupt nazirs withholding funds for the upkeep of awqaf for which they were responsible, and about nazirs not distributing benefits properly. Some nazirs became fortune hunters “converting the waqf into private property”, (Gibb and Bowen II 1957: 177-78). Nazirs are not angels. They are fallible creatures and can slide into unethical conduct unaware of any wrong-doing. Due to unscrupulous actions of certain nazirs, awqaf has lost much of the respect and trust of the community and hand-in-hand with that, credibility.
The perpetuity of the waqf creates issues of succession and highlights the need for the corporate nazir. A waqf foundation, as an incorporated entity has obvious advantages. It has an indefinite life and a legal personality independent of its members. The corporate nazir is the best hope for awqaf. The corporate nazir can bring in new blood and ideas which are beneficial to the waqf without interrupting the nazara function. Nazara succession becomes a process and not an event that ensures harmony and continuity of the waqf to subsequent generations. A foundation has a board of directors, and allows the segregation of duties and allocation of responsibilities according to areas of specialisation. It can adopt a governance structure that ensures transparency and disclosure, control and accountability, and sets a code of ethics and boundaries of behaviour. A board of directors overseeing the waqf would be able to hold the balance between social and economic goals and between beneficiaries and communal interests. The corporate structure underlines the need for licensing regulations where nazirs or waqf administrators need to be certified and licensed. The certification of nazirs sets a process of prescribed academic qualification, work experience and character references to ensure that awqaf nazirs possess the highest level of professionalism. Just as company law stipulates that public companies appoint an auditor, awqaf governance laws should also make it mandatory for waqf foundations and nazirs to be audited. Any conflict between the nazir’s obligations and his self-interests, should lead to penalties or to revoking of the nazir’s license.
Awqaf is an ethical business sector and the nazir is at forefront and in the most noticeable position. Every time an awqaf nazir speaks at an event covered by the media, the entire awqaf sector is on the line. Nazirs should act in the interest of the entire community and the concerns of non-beneficiary stakeholders should form part of their responsibilities. Nazirs are not only required to act in good faith for the best outcomes for the waqf, but also ensure others see them acting diligently and building trust among those they deal with. They should act as models of behavior to change the traditional image as persons who are insular, ignorant, rarely listen, and hardly interact. Nazirs are empowered and trusted because stakeholders believe that they will make a difference, create change and improve lives by acting professionally, honestly and compassionately.