RE­VISIT REG­U­LA­TORY REGIMES GOV­ERN­ING CHAR­I­TIES

This is so that ben­e­fits can be ex­tended and en­joyed by both Mus­lims and non-Mus­lims

New Straits Times - - Opinion - The writer is a Re­search Fel­low at the In­ter­na­tional In­sti­tute of Ad­vanced Is­lamic Stud­ies Malaysia

CHAR­ITY is in­deed a uni­ver­sal value that is highly en­cour­aged by all re­li­gions, sub­ject to rules or cus­toms. Its im­pact on so­cioe­co­nomic con­di­tions of so­ci­ety is un­de­ni­able. In Malaysia, the laws gov­ern­ing char­i­ties are piece­meal. There are char­i­ties gov­erned by the Fed­eral Gov­ern­ment, some are ex­clu­sively in the hands of the states and some are reg­u­lated by both the fed­eral and state gov­ern­ments. This ju­ris­dic­tional de­mar­ca­tion is stip­u­lated in Ar­ti­cle 74 of the Fed­eral Con­sti­tu­tion and its Ninth Sched­ule.

Pri­mar­ily, the gen­eral laws on char­i­ties, ex­cept for waqaf and Hindu en­dow­ments, are gov­erned by Item 15(c) of List I (Fed­eral List) of the Ninth Sched­ule of the Con­sti­tu­tion. Waqaf and other char­i­ties con­cern­ing Mus­lims are ad­min­is­tered in­de­pen­dently by state gov­ern­ments as pre­scribed by Item 1 of the List II (State List) in the same Sched­ule.

Hindu en­dow­ments, on the other hand, are gov­erned un­der a pre-in­de­pen­dence law, known as Hindu En­dow­ment Or­di­nance 1906, while char­i­ties in Sabah and Sarawak are gov­erned by a shared power be­tween the fed­eral and states gov­ern­ments as stip­u­lated in Item 15 of List IIIA (Sup­ple­ment to the Con­cur­rent List) of the Ninth Sched­ule.

Char­i­ties in Malaysia are mostly ex­e­cuted via the estab­lish­ment of non-profit or­gan­i­sa­tions (NPOs). Ac­cord­ing to the Fi­nan­cial Ac­tion Task Force (FATF), NPO refers to a “le­gal per­son or ar­range­ment or or­gan­i­sa­tion that pri­mar­ily en­gages in rais­ing or dis­burs­ing funds for char­i­ta­ble, re­li­gious, cul­tural, ed­u­ca­tional, so­cial or fra­ter­nal pur­poses or for the car­ry­ing out of other types of good works”.

NPOs may ei­ther be called a foun­da­tion, trust fund, com­pany lim­ited by guar­an­tee or so­ci­ety or or­gan­i­sa­tion. Some are gov­erned by the Fed­eral Gov­ern­ment while others are su­per­vised by the states. Yayasan Pem­ban­gu­nan Ekonomi Is­lam Malaysia, Na­tional Can­cer Coun­cil Malaysia , Kop­erasi Belia Is­lam Malaysia Ber­had, In­sti­tute of Strate­gic and In­ter­na­tional Stud­ies and In­ter­na­tional In­sti­tute of Ad­vanced Is­lamic Stud­ies Malaysia are ex­am­ples of NPOs es­tab­lished un­der the Fed­eral Gov­ern­ment.

State based NPOs, on the other hand, are es­tab­lished un­der the rel­e­vant states’ en­act­ments. These en­act­ments are passed by the states by virtue of the Trusts (State Leg­is­la­tures Com­pe­tency) Act 1949. Tok Ke­nali Trust Fund En­act­ment 1992 and State Her­itage Trust Fund En­act­ment are in­stances of states’ en­act­ments that gov­ern the estab­lish­ment and man­age­ment of Tok Ke­nali Trust Fund in Ke­lan­tan and Tabung Pe­gawai-Pe­gawai Masjid in Tereng­ganu re­spec­tively. Is­lamic char­i­ties, such as za­kat (oblig­a­tory giv­ing), hi­bah (gift), waqaf (en­dow­ment), nazr (vow) and other char­i­ta­ble en­dow­ments con­cern­ing Mus­lims are also un­der the care of the states through the su­per­vi­sion of their Is­lamic Re­li­gious Coun­cils since the sub­jects are Mus­lims. It is cru­cial to men­tion that, the char­i­ties gov­erned by the states may vary from one to another since each of them pos­sesses exclusive power over the mat­ter. This power is to be ex­er­cised with­out any in­ter­fer­ence from the Fed­eral Gov­ern­ment.

A ju­ris­dic­tional is­sue would arise when Is­lamic con­cepts of char­i­ties (ex­cept waqaf), such as sadaqah, in­faq or hi­bah , are to be ap­plied within the fed­eral ju­ris­dic­tion. This is due to the fact that such con­cepts could be con­strued to be gov­erned un­der ei­ther fed­eral or state gov­ern­ments. Fun­da­men­tally, sadaqah, in­faq or hi­bah is an Ara­bic term that con­notes the gen­eral mean­ing of char­i­ties, alms-giv­ing or gift. Con­sti­tu­tion­ally, gen­eral char­i­ties fall within the power of the Fed­eral Gov­ern­ment. Tacit ex­clu­sions are only made over waqaf and Hindu en­dow­ments mat­ters that are specif­i­cally gov­erned by the state and rel­e­vant gov­ern­ing laws as pre­vi­ously elab­o­rated. Sadaqah, in­faq or hi­bah shall be gov­erned by the states only when the sub­jects are Mus­lims since states shall only have pow­ers over Mus­lims. This po­si­tion is stip­u­lated in Item 1 of List II of the Ninth Sched­ule of the Con­sti­tu­tion. How would the cur­rent law re­act when a nonMus­lim wishes to take part in such Is­lamic con­cepts of char­i­ties such as sadaqah, in­faq or hi­bah?

Gen­er­ally, Is­lam al­lows nonMus­lims to par­tic­i­pate in waqaf, sadaqah, in­faq and hi­bah. As far as waqaf is con­cerned, the ex­press ex­clu­sion made by the Fed­eral Con­sti­tu­tion via Item 15(c) of List 1 of its Ninth Sched­ule por­trays a clear po­si­tion of waqaf as an exclusive mat­ter un­der state ju­ris­dic­tions. This means that Fed­eral Gov­ern­ment would not in­ter­fere with the ad­min­is­tra­tion of waqaf un­der states.

How­ever, other Is­lamic con­cepts of char­i­ties that are not ex­plic­itly ex­cluded un­der state power could pos­si­bly be ap­plied within the am­bit of fed­eral ju­ris­dic­tion, es­pe­cially when the donors or ben­e­fi­cia­ries come from var­i­ous re­li­gious back­grounds. This is be­cause, states would never have ju­ris­dic­tions over the non-Mus­lims. Since Malaysia is a mul­tira­cial coun­try, there­fore it is timely to re­visit the cur­rent state of our reg­u­la­tory regimes gov­ern­ing char­i­ties so that cer­tain Is­lamic phil­an­thropic con­cepts could be ex­tended and en­joyed by both Mus­lims and non-Mus­lims.

FILE PIC

A Per­tiwi Soup Kitchen vol­un­teer pre­par­ing food for the home­less in Kuala Lumpur.

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