The application of “public benefit” requirement of charitable trust in Waqf court judgement: A review
Ismon, N.Y1, Ali, Z2, Hingun, M3.
Waqf is a form of voluntary charity and its purposes are recognised
by Islamic law as religious, pious or charitable. Charitable trust is a
public trust where the settlor may aim to create certain purposes. Both
waqf and charitable trust share the same objective, which is for the
benefit of the community at large. The objective of this article is to
reveal how the requirements of “public benefit” in charitable trust are
applicable to waqf cases. In determining the validity of a charitable
trust, the requirement of public benefit is essential, particularly
under the last three charitable purposes, namely advancement of
education, advancement of religion, and other purposes beneficial to
the community. Besides, the personal nexus test is applied in the case of charitable trust to ensure no personal linkage between the founder
and the beneficiaries. These two elements are necessary to establish
a valid charitable trust. The English court will first filter out such a
case to ensure that there is no infringement of other people’s rights
and exploitation of the charitable trust’s privilege. Public benefit
requirement and personal test are also applicable in cases relating
to waqf cases. In waqf, the Islamic law prescribes two categories,
which are “Waqf Khairi” (Public waqf) and “Waqf Ahli” (Family
waqf). However, family waqf is treated as “non-charitable under the
influence of English law of trust” because it infringes the rule against
perpetuities. The methodology used in this article is doctrinal legal
research focusing on the legal principle as well as the cases of public
benefit requirement, the personal nexus test, and the rule against
perpetuities in charitable trust and waqf. This article found that the
requirement of public benefit is applicable in public waqf, but not for
family waqf. Despite that, family waqf should be maintained as it is a
great channel for wealth distribution and succession planning.
Affiliation:
- International Islamic University , Malaysia
- International Islamic University , Malaysia
- International Islamic University , Malaysia
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