The waqf is an institutionalized form of continuing charity. Creating a charitable waqf is a passive way of giving. Neither the waqifs nor the beneficiaries have to know each other. One of the important issues concerning awqaf is the appointment of a nazir to manage the waqf. Waqifs find it more convenient and conceivably more effective to select a trustworthy and capable person to serve as nazir for their awqaf. Shariah provides a principles-based criterion to the appointment of the nazir and to his duties and responsibilities. Shariah lays down governing principles of spiritual, mental and physical behavior for the nazir.
The nazir’s duties are distinguished between obligatory and discretionary. Obligatory duties specify the nazir’s responsibilities in administering the waqf property in accordance with the terms of the waqf deed. The waqf deed is treated as a sacrosanct document that should be meticulously followed. Discretionary duties, on the other hand, give the nazir some latitude in making choices and taking decisions within the bounds of the provisions contained in the waqf deed. The guiding principles for the nazir’s discretionary power are based on three defined parameters: ethics, diligence and professional competence. Both of the discretionary powers and obligatory duties are not independent of each other and must be maintained and reflected in the nazir’s exercise of his duties and responsibilities.
Within the inner sanctum of the waqf sector, there’s a governance shortfall that has long stymied its development and growth. Because of awqaf’s private and usually esoteric nature, and lack of clarity how awqaf are governed and regulated, awqaf appear to work in isolation from other sectors. The reason for this seclusion is mainly attributed to the ritualistic management style of nazirs. Because of the nature of awqaf, its religious message and social application, it seems logical that those who are entrusted with awqaf properties to be more religiously conscious and therefore employ their faith when managing. Nazirs have the responsibility to safeguard, invest and grow assets in their custody and produce good returns which makes it harder to act solely on their beliefs. It is true that managing a waqf requires a certain level of spiritual maturity, but in today’s financial and regulatory environment, the nazir must be realistic and pragmatic, and able to navigate through many layers of bureaucratic formalities and market volatilities.
Awqaf organisations and their stakeholders cannot be absolutely protected from the vagaries of human behavior. Even nazirs who are known to be honest, committed and competent, can fall short of what is required. Any wrongful use by the nazir of his obligatory duties or discretionary powers, whether intentional or unintentional may lead to a breach of the waqf deed and could render the nazir liable for any loss or damage to the waqf property and the rights of the beneficiaries.
The nazir bears a fiduciary responsibility to the beneficiaries. However, it’s a responsibility without the matching authority. This is an important issue to deal with. The conditions of the waqif are paramount – not the desires of the beneficiaries. There’s a real possibility that the nazir has never met the waqf beneficiaries. Usually, the nazir meets only with the founder of the waqf who appoints him. This raises the question of how the nazir can faithfully fulfill his fiduciary responsibility to people he doesn’t even know. In the field, there are three different ethical dilemmas that evoke some concern to a nazir: The Deed vs the need, the beneficiary vs the community and business vs charity.
Awqaf is not an easy sector that first appears to be. In fact, it is quite complex. Nazirs have to work with people, come up with solutions and do not always say no. The public is unware of the nazirs’ useful contribution to the community. Ask the public if awqaf are important and they’ll say yes, but ask them if the nazirs are up to the task, you lose out. Nazirs have been portrayed as icons of mediocrity and cynicism. Awqaf are often in the full glare of the media spotlight. Minor slip ups can be put under the media magnifier and blown out of proportion. Nazirs are not only required to act in good faith for the best outcomes for the waqf, but in a fishbowl environment they also need to be seen acting diligently and building trust among their stakeholders.
Awqaf management can be classed as a social science where nazirs need to interact and understand their beneficiaries and build relationships with all those they deal with. It’s important for nazirs to develop behavioral characteristics and communication skills. It’s not a job for amateurs. The task requires a multi-disciplinary background combining Shariah, law, finance and sociology. Nazirs need to connect with the community, and deal with financial, legal and media matters. More fundamentally, the nazir has to demonstrate that the waqif conditions are met and the social objectives are being achieved.
Hisham Dafterdar, CPA, PhD
Chairman
Awkaf Australia Ltd
