A good article, more Muslims should setup Waqfs
http://www.dawn.com/2003/text/op.htm#1
By Syed Imad-ud-Din Asad
The term ‘wakf’ literally means ‘detention.’ In Islamic law, wakf denotes the permanent dedication, by a Muslim, of any property for any purpose recognized by Islamic law as religious, pious, or charitable.
Wakf causes the transfer of ownership, of the thing dedicated, to God. But as God is above using or enjoying any property, its usufruct or profits are reverted, devoted, or applied to the benefit of mankind. The motive of law, in authorising wakfs, is to enable the dedicator to secure spiritual advancement and rewards in the life to come, in addition to gaining good name in this life.
The concept of wakf was unknown in pre-Islamic Arabia. Islam introduced and developed this institution. Wakf has its origin in the Traditions of the Prophet (peace be upon him). The Quran, though it contains several injunctions that deal with charity, does not even mention it. The first wakf mentioned in the Islamic texts, which is also considered to be the basis of the law of wakfs, is that of Omar Ibn Al Khattab. Al Bokhari narrates it in the following words:
Ibn Omar reported, “Omar In Al Khattab got land in Khyber. He came to the Prophet, peace and blessings of Allah be upon him, to consult him about it. He said, ‘O Messenger of Allah! I have got land in Khyber. I have never obtained a property more valuable than this. What do you advise about it?’ He replied, ‘If you like, make the property itself to remain inalienable, and give the profit from it in charity’.”
Wakfs were frequently made in the lifetime of the Prophet. In fact, the Prophet himself made a wakf of a land acquired by him for the benefit of travellers. However, the institution did not assume rigid legal form till the second century A.H.
Any property can be the subject of wakf. A valid wakf may, therefore, be created of shares in a joint stock company, money, etc. The validity of a wakf is determined by the possibility of everlasting benefit being derived from it by any form of dealing of which it is capable, or by converting it into something else. It is only where the subject matter is totally unfit for being turned into profitable use, that its dedication fails.
The declaration of wakf can be made either verbally or in writing. The use of the word ‘wakf’ is not a must in the declaration. It is enough, if from the general nature of the grant itself such a dedication can be inferred. In a judgment Mr Justice Syed Amir Ali said: “Muslim law relating to wakfs owes its origin to a rule laid down by the Prophet of Islam; and means ‘the tying up of property in the ownership of God the Almighty and the devotion of the profits for the benefit of human beings.’ When once it is declared that a particular property is wakf, or any such expression is used as implies wakf, or the tenor of the document shows… that a dedication to pious or charitable purpose is meant, the right of the wakif is extinguished and the ownership is transferred to the Almighty. The donor may name any meritorious object as the recipient of the benefit.”
The above given judgment and the definition lay down the following conditions necessary for constituting a valid wakf: 1. The property, forming the subject of wakf, must belong to the dedicator at the time of dedication; 2. The object of wakf must be recognised by the Islamic law as religious, pious, or charitable; 3. The object of wakf must be indicated with reasonable clarity; and 4. The dedication must be permanent.
The dedicator may himself act as manager of the wakf, or he may appoint a competent person for this job. If he decides to appoint a manager, then the dedicator has the right to lay down rules for the management and administration of the wakf. The manager is bound to follow these rules. However, if once a manager is appointed, the dedicator cannot interfere in the affairs of the wakf, unless he has reserved such power to himself.
The main principles according to which a wakf is administered are: 1. The directions of the dedicator must be carried out; and 2. All that is necessary for the preservation of the wakf must be done. It must be mentioned that where a clear charitable intention is expressed in the instrument of wakf, it will not be permitted to fail because the objects happen to fail, but the usufruct or profits will be applied to objects as near as possible to the objects that failed. In the English legal phraseology, this is called ‘Doctrine of Cypres’
A wakif is the person who permanently dedicates his property for a purpose recognised by the Islamic law as religious, pious, or charitable. In order to be a wakif, a person must be: 1. A Muslim; 2. Of sound mind; and 3. A major. It must be mentioned that, according to certain jurists, even non-Muslims can make wakfs, if the objects for which the dedication is made is lawful according to the Islamic doctrine.
A person in whom the management and administration of a wakf vests is Mutawalli. He has no right in the property belonging to the wakf: the property is not vested in him and he is not a trustee in the technical sense. His status is merely that of a superintendent or manager. Any person who is a major and has a sound mind can be appointed a mutawalli. Females and non-Muslims can also be mutawalli of a wakf. Except in certain cases, religion and gender are no bar to qualification.
The Islamic institution of wakf has a wider scope and purpose than that of trust in the English law. The institution became so popular and important in Islamic countries that, in most of them, a special ministry was established to deal with the administration of wakf properties.
There is a view that the English concept of trusts originated from the Islamic wakf. There are several reasons for this conclusion. First of all, wakfs were in vogue in the Muslim world several centuries before the introduction of trusts and uses in England. Secondly, it were the Franciscan friars who introduced trust and uses in England, in the thirteenth century. It must be remembered that it was a time when there were several instances of contact - chiefly due to the Crusades - between the West and the Muslims.
St. Francis, founder of the order that introduced trusts and uses, went to Egypt during the Crusades, in 1295, and was captive of the Muslims for some time. Also, on two previous occasions he had unsuccessfully set out for Egypt and the Muslim Spain, thus evincing a particular interest in the Islamic world.