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Islamic Waqf and the Environmental Protection
© Eisa Al-Anzi & Nada Al-Duaij
Islam is the religion delivered by Prophet Mohammed, prier and peace of God upon him. Islam is not confined to any people, place, or time; therefore, it is not a religion of a specific period of time or a specific nation. This character allows Islamic rules to be applied to past, present, and future situations. On the other hand, the degradation of the environment by human activities is remarkably increasing and becoming one of the major problems nowadays. Thus, this paper will examine the link between Islamic rules and environmental protection. It will illustrate how Islamic Sharia, Islamic Law, protects nature and natural resources throughout one of its most important tradition “Waqf.” Some human activities, whether in peacetime or in times of armed conflict, can harm the ecosystem and most modern technologies can damage the natural system. For instance, hazardous waste, chemical gases, nuclear emissions, and biological materials present a substantial threat to our natural system, particularly, soil, air, and water. Since 1970, the environmental law expanded its jurisdiction to cover harmful activities and provide for greater environmental protection in order to secure the environment. Nevertheless, despite the efforts of the environmental law, natural environment is still targeted by human activities, and some of the environmental problems are getting worse. For example, the damage to the ozone layer, that causes the global warming, becomes much more serious. The Antarctic ozone hole has grown thinner and wider during Antarctica's winters for the past two decades. To better assist the environmental law in fulfilling its mission, other sources of rules, such as international law, commercial law, criminal law and Islamic Law, should reinforce the environmental law task. Islamic Law, Islamic Sharia, adopted some rules to protect the natural environment. The conservation of the environment is a religious duty demanded by God. God has said: “Do good, even as God has done you good, and do not pursue corruption in the earth. Verily God does not love corrupters.” God said also: “Eat and drink, but waste not by excess; Verily He loves not the excessive.” And “do not cause corruption in the earth, when it has been set in order.” Prophet Mohammed also ordered Muslims to protect their environment when he said in a prophetic speech “If any Muslim plants a tree or sows a field, and a human, bird or animal eats from it, it shall be reckoned as charity from him.” Moreover, he said: “if the day of resurrection comes upon any one of you while he has a seedling in hand, let him plant it.” Destroying the environment, and not participating in its protection is considered as a violation of the orders of God and Prophet Mohammed, which will cause an otherworldly punishment. For example, Prophet Mohammed warned that a person who starves an animal to death is punished by God in the fire of hell. Though, when a person sins, God will provide a pardon for the act of giving water to a dog in desperate thirst. As a fact, man does not own the earth. He has been granted a stewardship to manage it in accordance with the purposes intended by the Creator (God), to utilize it for his own benefit and the benefit of other created beings. Heaven and earth and all that they contain belong to God alone. Consequently, Prophet Mohammed said in a speech that “the world is beautiful and verdant, and verily God, be He exalted, has made you his stewards in it, and he sees how you acquit yourselves.” Accordingly, the environment should remain healthy and safe by the present generations to be inherited by future generations, since the environmental destruction violates public interests; especially when it causes air, soil, or water pollution. However, in other cases the environmental harm could be interpreted as a violation of private interests, for example, the destruction of an agricultural field, owned by a private person, by the wastes of a nearby plant. Moreover, in Islam, the difference between public and private interests reflects on the nature of the punishment, since every act that is interpreted as a violation of public interest is considered a crime against the society “Al-Ta’azeer.” Muslims’ Governor punishes such crimes even if there is no plaintiff, where the Governor fulfills this role. On the other hand, whenever the environmental destruction is interpreted as a violation of private interest, the crimes of “Al-hodod and Al-gasas” will be applied, and the due punishment should be implemented. Unfortunately, most legal systems in the Muslim world, such as Kuwait, require direct interest in the plaintiff’s claims, to examine his environmental case. Waqf is one of the Islamic traditions that has rarely been raised as a mechanism for the environmental protection. Resurrection and using the rules of Islamic Waqf would assist in fighting and eliminating environmental threats. This paper will address the role of Waqf in the protection of the natural environment and will respond to a number of questions. For instance, the meaning and the history of Waqf; the kinds of Waqf; the application of Waqf; and finally, the Waqf role in the environmental protection. Thus, this paper will be classified into four sections: I. The Meaning and the History of Waqf; II. The Divisions of Waqf; III. The Function of Waqf; and IV. The Environmental Protection in Waqf.I. The Meaning and the History of Waqf
Waqf is a pure Arabic term, which means “habs” tying up. It can be said that the policeman “awqaf” the suspect, or he arrested him. According to the Hanafi school, Waqf is “the detention of the corpus from the ownership of any person and the gifts of its income or usufruct either presently or in the future, to some charitable purpose.” In most of the religions, certain lands and building were sacred to the prayers. For example, “Pharaohs of Egypt devoted land properties for the benefit of monks and ancient Greeks.” Similarly, the Romans “dedicat[ed] properties exclusively for libraries and education.” Muslim jurists argue that the Ka’abah building, in Makkah, Saudi Arabia, was sacred as a first house of worship. However, according to them, the first Islamic Waqf is the mosque of Quba’, a city 400 km north of Makkah, which was built upon the arrival of Prophet Mohammed to Madinah in 622. The idea of Waqf existed, in Arabic language, in different forms even before Islam. The Holly Quran does not directly define Waqf or make any reference to it. However, it encourages funding of charity, which includes Waqf. For example, it is provides that They ask thee what they should spend (In charity). Say: Whatever ye spend that is good, is for parents and kindred and orphans and those in want and for wayfarers. And whatever ye do that is good, -Allah knoweth it well. Those who establish regular prayers and give in regular charity, and also have (full) assurance of the hereafter. So give what is due to kindred, the needy, and the wayfarer. That is best for those who seek the Countenance, of Allah, and it is they who will prosper. Those who establish regular Prayer, and give regular Charity, and have (in their hearts) the assurance of the Hereafter. If ye loan to Allah, a beautiful loan, He will double it to your (credit), and He will grant you Forgiveness: for Allah is most Ready to appreciate (service), Most Forbearing. Similarly, Prophet Mohammed called Muslims to establish charities, when he said that “When Adam’s son die, he will be disconnected except from three: continuos charity, useful science, or well-raised kids prays for him.” “A man called Mukhairiq made his will that his seven orchards in Madinah be given after his death to Prophet Mohammed. In year 626, the man died and the Prophet took hold of the orchards and made them a charitable Waqf for the benefit of the poor and the needy.” Moreover, when Prophet Mohammed passed away, he left only his white mule, weapon, and a charitable land. Furthermore, “[i]n the life of Mohammed [Omar ibno Al-Khattab, the second caliph,] made an alms of one of his properties called Tsamgh, which consist of palm grove. Omar said ‘O Messenger of God, I possess a property which is precocious to me, and I would make alms with it.’ The Prophet replied: ‘Give it in alms, but provide that it shall never be sold nor given away nor divided among heirs, but the fruits of it shall be used.’[…].” Some other sources provide that Prophet Mohammed told Omar “[t]ie up the property and devote the usufruct to human beings.” Furthermore, Waqf was firmly established in the second half of the first century of Islam (A.D. 670-750) as part of Muslim Law. It was adopted by some modern non-Muslim legal systems. For example, the English trust system was inspired from the Islamic Waqf. In England the trust system was used to give part of the income to persons who are not capable of sharing these properties. Similarly, the Holly Quran prescribes in minute detail the shares and portions in which property is to be distributed among heirs, and Muslims can overcome these restrictions by donating a portion of their properties to some of the relatives or to serve the needs of the society. The freedom of Waqif was behind imposing unpopular conditions for some relatives as a condition to benefit from Waqf. Many of the Waqfs “were restricted to male descendants, or disentitled female descendants upon marriage, or disentitled any beneficiary on becoming indebted.” If this donation was in place during the life of the Waqif, there are no limits on the donation; he can give up all his properties, unless it is proven that he was mentally ill during the donation. However, if it was in place just before the death, or was written as a testamentary not exceeding one-third of his estate, and, if it does, the portion over one third will be denounced, the heirs must approve it. According to the Waqif’s will, Waqf can be dedicated to serve relatives and the society. It can be dedicated to serve in helping those financially incapable of marrying, feeding the infants and children, assisting sick disable and the orphans, and covering the expenses of “Jihad,” the fight in the name of God. Since Waqf has no detailed rules in the Holly Quran or the speeches of Prophet Mohammed, it is considered as a tradition and subject to a number of modifications during the development of the needs of Islamic States. Nowadays, Waqf, like all other daily matters, is subject to the control of the States authorities. Waqf is a religious endowment, a property giving revenues, as regulated by Islamic Law. There is a great discussion regarding the status of the property dedicated as Waqf. When Waqf is established, the corpus, according to some Islamic jurists, will be dedicated to Allah. However, some other jurists viewed that dedicating property as Waqf does not result in the loss of the property itself; rather the usufruct will be devoted to charitable purposes.II. The Divisions of Waqf
There are different kinds of Wakf. For example, Ahly, Khairi, permanent, and temporary. Therefore, Waqf could be (1) self-Waqf, for the benefit of the Waqif; (2) “Waqf Ahly” for the benefit of the relatives; (3) “Waqf Khairy” for the benefit of the public or the society; or (4) “Waqf Moktalat,” which could be for the benefit of the public, self, and/or relatives. Moreover, Waqf can also be classified into “Waqf Daeym” permanent, which lasts as long as the property last productive; and “Waqf Moaakat” temporary, which exists for a limited period of time. At the same time, certain Waqf can be Ahly and temporary, or Khairi and permanent. Most Waqfs have the same rules and regulations. However, Islamic scholars argued about the details of Waqf, which may reflect on the way that Waqf functions.A)Waqfs According to the Beneficiary
According to the beneficiary, Waqf can be divided into family Waqf (Ahli or Dhurri), charitable Waqf (Khairi) and mixed Waqf (Moktalat). 1. Family Waqf (Waqf Ahly or Dhurri) The family Waqf (Ahly or Dhurri) devotes the income and usufruct to the Waqif’s descendants. The Waqif may constitute himself the first beneficiary for life, where he can benefit from the income or usufruct of the Waqf. This kind of Waqf can occur only in the life of the Waqif; otherwise it would be interpreted as heritage. Devoting the Waqf to the Waqif’s benefits, self-Waqf, is only admitted by the Hanafi school, and denied by all the others. According to other schools, the nature of charity, which is found in the roots of Waqf, is absent until the Waqif’s death, since before his death there is no charity because he is the only beneficiary. The Waqif might constitute his descendants after him as beneficiaries from the Waqf. The freedom of Waqif, to introduce any kind of conditions regarding the beneficiaries and the way that shares should be distributed, was behind the appearance of unfamiliar conditions, such as the forfeiture of the right of the beneficiary upon contracting debts, upon marriage, upon marriage into other than a designate family, residency in a certain place, or the exclusion of female descendants. These unpopular conditions were behind the extermination and restriction of establishing Waqf Dhurri. A number of national legal systems imposed restrictions on the establishment of Waqf Dhurri, such as Lebanon, where it considers any conditions restricting the freedom of a beneficiary in marriage, residence, or contracting of debts deemed to be null and void. Some other countries, such as Egypt and Syria, were much more drastic vis-à-vis the Waqf Dhurri, where they completely prohibited the establishment of such Waqf. These modifications introduced in the Waqf Dhurri were based on the views of the Hanbali and Maliki schools. These restrictions are not considered as a violation to Islamic rules, because Waqf is only an Islamic tradition that should be modified to avoid complicationsamong the members of the society and to respond to the newly established needs of the society, such as the need for a healthy and clean environment.2. Charitable Waqf (Waqf Khairi)
In Charitable Waqf the income and usufruct are devoted to charitable purposes. These purposes may or may not be defined by the statement of Waqf. In the second case, the Qadi has the right to indicate these purposes according to the needs of the society. In response to Islamic calls for the donation into charitable purposes, some people choose Waqf as a method of donation. “Omar made alms with the property, dedicating it to the use of the Holly War, the ransom of slaves, and the support of the poor, of guests, of travelers, and of kindred.” In most cases the donors do not have in mind which charitable purpose should be satisfied at first. So they consult with the specialized centers and personnel to figure out the best charity and the most acceptable one by God. Based on the background of the consultants, the donor may decide to devote his Waqf for the needs of education, constructing or maintaining mosques, provide drinkable water in certain places, or to the service of elders. Moreover, if the consultant has an environmental background and is capable of convincing the Waqif that protecting the environment is important and necessary to live in a safe and healthy environment, this would encourage the Waqif to devote his Waqf to the environmental protection. In a remarkable step, in 1995, Kuwait Awkaf Public Foundation established an Environmental Fund to fill this mission. The charitable Waqf can result in three environmental scenarios: 1) Charitable Waqf with Specific Environmental Goal: When environmental Waqf is devoted to satisfying a specific environmental goal, such as the maintenance of a certain protected area, the income should be directed to this specific goal. When this specific goal is achieved, the administrator, under the supervision and approval of Qadi, the judge, has to satisfy new needs similar to the ones provided in the statement of the Waqif. In the example of the protected area, the administrator should find another protected area and maintain its protection. 2) Charitable Waqf with General Environmental Goal: When environmental Waqf is devoted to the protection of the environment in general, without specifying which area needs to be protected, the administrator has the power, under the supervision and approval of the Qadi, to indicate which environmental problem should be treated as a priority; then he can move to the second. Accordingly, if the Waqf was devoted to cleanup of the marine environment, the efforts of the administrator should focus on this part of the environment. However, in the occurrence of a nuclear explosion, the administrator can, by the approval of the Qadi, move all or part of his efforts and the resources of Waqf to maintain new problems, even if it may occur in another part of the environment, as long as it falls within the general environmental circuit stated by the Waqif. 3) Charitable Waqf with Non-Environmental Goal: Charitable Waqf may be devoted to general non-environmental goals, such as the help of the needy. In this case, the freedom of the administrator should be limited within this goal. Similarly, when the Waqf is devoted to serve specific non-environmental goal, the administrator should be limited in achieving this goal and similar goals after it. However, in both cases, the general and the specific non-environmental goal, the administrator may, under the supervision and approval of the Qadi, direct part or all of the incomes to the protection of the environment in cases of environmental emergencies. Protecting and ameliorating the environmental situations in any part of the world should be interpreted as charity, serving the public needs, and maintaining the properties of God on which humans have only stewardship.3. Mixed Waqf (Waqf Moktalat)
The Waqf can also be mixed, when it serves both the needs of the society and relatives. Even if Waqf was directed to serve relatives at a certain time, it would serve the public and the charitable needs later. For example, when the Waqif reserves the income of Waqf to his children and their descendants in perpetuity, with a provision that upon the extinction of his descendants, the income shall be used for charitable purposes, charitable and public needs will be covered when this condition becomes effective. Moreover, in the environmental Waqf, the interests are mixed between the public and the relatives. For example, when a Waqf is directed to clean up hazardous wastes dumped into a stream within the property of relatives, the interest of the relatives was satisfied, and so was the public interest by assuring the cleanliness of the main river that meets with the stream.B) Waqf According to the Period of Time
The duration of the Waqf was the subject of great discussion between Muslim scholars. Some of them approve the possibility of establishing a permanent Waqf as well as a temporary one. Another group of Muslim jurists approves only the permanent status of Waqf, and the temporary one is illegal according to them. 1) Permanent Waqf The permanent Waqf lasts as long as the corpus lasts, and it is connected to the existence of the Waqf’s corpus. Furthermore, it may last beyond the existence of the corpus itself, where Waqf, with the Qadi’s approval, can be substituted for another much more productive corpus. The permanent Waqf is approved by all the Muslims schools, and has taken place in several parts of the Muslim world. However, some national legislatures, such as in Egypt, Lebanon, and Syria, modified this Islamic tradition by abolishing the Dhurri Permanent Waqf, and dissolving the existing ones. However, based on its importance in supporting the public services, the Khairi Permanent Waqf is still approved. In the environmental protection, it is highly recommended that Waqf be established permanently. This recommendation is based on the fact that protecting the environment in certain areas for a period of time makes no sense, and wastes the efforts and financial resources. The suspension of funding environmental protection in certain areas, such as the marine environment may eliminate efforts to fight pollution and clean up, which may result in a serious threat of extinction of certain species, and consequently, waste all the previous efforts and financial resources directed to protect the environment. Even the temporary Waqf reflects on the protection of the environment. 2) Temporary Waqf If Waqf is made to serve charitable purposes that are not perpetual, at the conclusion of this purpose, the Waqf will continue to serve other charitable purposes. The new purpose will be indicated by Qadi. Temporary environmental Waqf can be useful in environmental emergencies, such as natural or human catastrophes that affect the natural system. For example, the Chernobyl accident of 1986 required financial resources to evacuate and support victims and to rehabilitate the affected environment. Temporary Waqfs may direct its income to assist efforts in such catastrophic situations, especially when its original purposes were satisfied. Temporary Waqfs may be used to fund studies seeking to avoid future environmental catastrophes. In the temporary Waqf, administrator’s powers are limited in spending the income in violation of the Waqif’s statement. He should direct the income to achieve similar goals, and the Qadi should approve any new purposes. However, once the temporary goal is achieved, whether it was environmental or non-environmental, the administrator will have, after the approval of the Qadi, more freedom to direct part of the income into the environmental circuit.III. The Function of Waqf
Islamic Waqf involves four human elements; (1) dedicator (Waqif,) (2) Trustee (administrator,) (3) beneficiaries, and (4) judge (Qadi.) Any person can be a dedicator (Waqif) by dedicating the income or part of the income from his property or part of his property to the benefit of relatives, non-relatives, the public, or the society. However, the Waqif must posses the capacity requisite to act. Most of the legal systems require that the Waqif should be of certain age, sound mind, and legally own the property devoted as Waqf. Kuwaiti Civil Law approves acts of sound-minded persons of more than seventeen years of age. Both Muslims and non-Muslims can establish Waqf, and there is no requirements regarding the following of a specific religion in order to establish the Waqf. For example, Egyptian Waqf Law requires only that the income should not be spent in prohibited domains in the Sharia and in his religion. However, in the Kuwaiti Project of Waqf Law, non-Muslim can establish Waqf, under two conditions: that he should be part of the holy religions (Christianity or Judaism), and that the income should not be spent in non-Islamic directions. The administrator or the trustees (Mutawalli or Nazir) is charged with administering the Waqf with care and protection and distributing the incomes of the property according to the Waqf’s instrument, under the supervision and accountability of the Qadi. In other words, he should preserve the property to maximize the revenues of the beneficiaries. The Waqf instrument may name the original administrator, and provide for the manner of appointing his successors. In the case of the absence of such directions, the Qadi is charged with appointing the administrator, giving preference to candidates from the Waqif’s descendants. If environmental Waqf is in question, an environmentalist has the right to fill this position among the employers of the concerned governmental administration of Awqaf or among the Waqif’s descendants. According to its nature, Waqf is perpetual and cannot be limited in time. However, the Waqif has the right to direct the way of spending the incomes. The Waqif also has the right to impose restrictions over his dedication. In Islamic Law, these restrictions over Waqf are valid and enforceable. Beneficiaries of the Waqf can be relatives, non-relatives and/or the public services. The Waqif has great latitude to indicate in his statement the beneficiaries of his Waqf. If he did not specify the beneficiaries, or there are no more beneficiaries according to his statement, then the Qadi has the right to indicate the beneficiary of such Waqf. Consequently, the existence of a Qadi is very important to fulfill two tasks: supervising the administrator’s job, and replacing the Waqif, whenever he is incapable physically or mentally, in all the matters that need his approval. The administrator is under the supervision of the Qadi, and, therefore, cannot spend the incomes of the Waqf on greening the shore while it suffers from substantial environmental pollution. The income should be spent on cleaning up the shore before greening it. Both the Qadi and administrator should have a considerable level of environmental awareness to better fulfill their tasks. Otherwise, the administrator cannot decide which environmental value should have priority. Similarly, the Qadi cannot supervise the work of the administrator, or examine complains from the beneficiaries, unless he obtains a level of environmental awareness. In October 2002, the Kuwait Ministry of Justice, in cooperation with the Kuwait Faculty of Law, hosted a conference seeking to increase the environmental awareness among judges in the Arab World. The Waqif has no power to appoint the Qadi, who is already appointed or elected to decide in all issues of the society. In the course of time, the power of the Qadi was subject to development. “In the early part of the eight century, a judge in Egypt established a special register and office to record and supervise Waqfs in his area. This culminated in the establishment of an Waqf office for registration and control which was linked to the supreme judge who used to be called the ‘judge of judges’.” More development took place during the Ottoman Empire, where “a special ministry of [Waqf was established since the early nineteenth century, and number of laws were enacted such as the] Law of Awqaf of Nov. 29, 1863 (19/6/1280 of the hijrah calendar).” A number of countries, such as Turkey, Syria, Iraq, Lebanon, Palestine, and Saudi Arabia are still dealing with Waqf according to theses laws, and most of Islamic countries have either a Ministry or Department of Awqaf. Muslim foundations in non-Muslim countries administer Waqf according to their foundation act rules and regulations. For example, “In 1975, the North American Islamic Trust (NAIT) was registered in the State of Indiana,[in view] to own and promote the Awqaf of Muslims in North America.” After the events of September 11, 2001, a few charitable organizations were involved in providing anti-American activities. Therefore, financial restrictions regarding the spending of Awqaf income were established by the American Ministry of Budget. In Kuwait, the Kuwait Awqaf Public Foundation (KAPF), preserves and maximizes the incomes of beneficiaries, the Council of Awqaf’s Affairs fills in for the Qadi position, and courts in Kuwait do not interfere except to resolve differences regarding the Waqf. IV. The Environmental Protection in Waqf The Waqf system is linked to the environmental protection. This link is based on the fact that most of the environmental elements owned by privates can be donated to charity, and subjecting them to environmental friendly rules would increase the environmental protection. In other words, all Muslim jurists agree that immovable property such as lands, lakes, and beaches, which represent portions of the natural environment, can be donated as Waqf. However, there is great opposition regarding the validity of movable property to be donated as Waqf, where, according to certain jurists, the movable property does not “possess the quality of permanency,” which is necessary for the establishment of Waqf. Three customary exceptions validate the establishment of movable property: (1) movable permanency attached to immovable property; (2) animals; and (3) books and furniture. All these exceptions are customarily accepted and environmental elements should be too, because administrators needs some movable tools to assure the best protection and function of the Waqf; therefore, it would be better if these tools have the same status as the Waqf itself. Moreover, animals are considered one of the environmental elements, even if they are movable elements, they should be allowed to obtain the status of Waqf, which will offer them much more protection and care than would necessarily reflect on the natural environment. In the case of protected areas, where species are part of them, devoting protected area as Waqf would extend the status of Waqf to include species in such property too. The administrator may impose rules to protect species, impose tariffs for entrance to gain financial resources, print brochures and greeting cards, and use these incomes to maintain the protected area. Las but not least, books and furniture should also be admitted as Waqf, because they will be environmentally necessary to spread the environmental awareness through establishing environmental centers using these books and furniture. The controversy regarding the validity of movable properties to establish Waqf was resolved by some national laws, such as the Lebanese Law of Waqf Dhurri, of 1947, which approved movable property and shares to establish a Waqf. In the present time, it is accepted to devote machinery, cattle, shares, stocks, and cash money as Waqf. Similarly, under the Kuwaiti Waqf system, KAPF accepts all kinds of donations, whether movable or immovable, to establish Waqf. Practically, the role of Waqf in maintaining the environmental protection is insufficient, and there is much more to do to link between Waqf and the environment. A number of elements can present the legal link between environmental protection and Waqf. These elements will be discussed in the next few pages. A) The Waqif’s Explicit Will to Protect the Environment Waqf is established according to the statement of the Waqif, which in most cases defines the directions and goals that his Waqf should serve. It is legal and encouraged, especially in the present time where the environment is under daily threats, that Waqifs direct all or part of their Waqf’s incomes in the service of the environmental protection. For example, the Waqif may require in his statement that all the income of his Waqf, or 20 percent, or so, of these incomes should be devoted to the protection of the marine life in a certain body of water such as the Gulf or to the protection of the environment in general. In this case the administrator is bound by this statement and has to execute it according to the Waqif’s statement by directing all or the prescribed percentage of the incomes to serve the environment. A Waqif would not give the environment any priority over his descendants or serving religious goals such as buildings or maintaining mosques, unless he is convinced of the importance of the environment. Therefore, a lot should be done to convince future donors or Waqifs of the importance of the environmental protection, and that spending to serve the environment is as holy as serving descendants and religion. For example, in response to the increased number of unwanted animals, two Waqfs on cats and unwanted riding animals were established in Damascus. KAPF plays a great role in bringing public attention to the importance of environmental Waqf. It adopts the strategy of establishing specialized Waqfy funds. Each fund is specialized in a certain field; it invites and convinces the public to donate Waqf to these funds, and then uses the incomes to achieve its goals. It is already indicated in the policy of KAFP that the environmental protection is one of the goals sought by the new funds. Among the established Waqfy funds is the Scientific and Social Development Fund, Health Development Fund, Sponsoring the Holy Koran and its Studies’ Fund, and Mosques Maintenance Fund. There used to be more specialized Waqfy funds including the environmental one, which used to be devoted to the protection of the environment. It used to be charged with inviting the public to make charitable donations, and to provide financial resources to the fund. These kinds of invitations take place through brochures, during the Friday prayer, the media, or in the KAPF siege. Until the public contributes to financing the fund, KAPF provides the necessary resources for the establishment and function of these funds. These resources come from the income of general Waqfs, where Waqifs did not indicate any specific purpose, or if the Waqif’s statement is unknown. The Health Waqfy Fund is in charge of calling for the establishment of environmental Waqfs. Including the environmental Waqfs in the Health Waqf seeks to unify the efforts and resources of both fields beside the handicapped and special needs individuals, thus presenting a considerable financial power, which is able to execute effective environmental protection regarding the serious and expensive environmental threats. Both national and international environmental organizations should support the efforts of the Health Fund by maintaining environmental awareness among the employees of the fund. At the national level, organizations such as the Kuwait Organization for Environmental Protection, and on the international level, organizations such as the “World Conservation Union” (IUCN) should fulfill this mission. Moreover, these organizations should be listed as beneficiaries of the incomes of the Health Fund. The Kuwait Regional Organization established by the Kuwait Regional Convention of the Protection of the Marine Environment in the Gulf of 1978, is one of the beneficiaries that receives financial aid from the Health Fund to support its environmental task.B) The Powers of the Administrator and the Qadi to Direct the Income into Environmental Protection Circle
The administrator is bound by the Waqif’s statement. If the Waqif includes the environmental protection in the statement, the administrator is obliged to follow such requirements and spend the incomes on the protection of the environment. Sometimes Waqif states that temporary goals should be served by the Waqf, such as the completion of the education of a certain person, or the extinction of his descendants. Once these goals are achieved and neither the Waqif nor his descendants are alive, the administrator, under the supervision and approval of the Qadi, will have to direct the income into similar goals as the one requested by the Waqif, unless there is an environmental emergency requiring the unification of the financial resources in the society. Sometimes the degradation of the environment may encourage the administrator to direct the incomes into the protection of the environment. For example, when nuclear pollution, marine pollution, or chemical pollution takes place in a developing country, where the State refrains from funding the clean-up operations, it becomes imminent that the freedom of the administrator should be limited and the incomes should be directed in this direction, and fund the clean-up operations. Moreover, the environmentalist administrator would manage the Waqf in an environmentally friendly way, and spend the income under his control in the same way. For example, to run the machines of a Waqfy factory, the environmentalist will use unleaded, rather than leaded, fuel. Similarly, to protect the factory, the environmentalist would plant trees rather than building a fence around it. The role of the Qadi is to assure that the administrator is following the statement of the Waqif, and that he is not ignoring such statement or the real needs of the society or the environment. However, the role of the Qadi is not that effective because he is not managing or investing in specialized areas. Therefore, in the Environmental Waqf, it is highly recommended that Environmental Courts be established to examine environmental matters on the one hand, and to supervise the administration of the administrator in the environmental Waqfs on the hand. For example, in the environmental Waqf, the Qadi assures that the administrator fulfills his mission of environmental protection, and that his freedom is not misused nor is he ignoring the real environmental priorities of the society. The Qadi should not allow the administrator to green a polluted area before cleaning it up, and he should assure that the clean-up procedures are taking place as presumed. This should be done by someone with specialized knowledge, such as an environmental judge. In the environmental Waqf, both the administrator and the Qadi should obtain a minimum of environmental awareness, and should consult and cooperate with scientists and lawyers in the environmental field. Practically, in the Islamic world, the State is being charged with the administration of Waqfs. Different departments and administrations are in charge of the Waqfs. In Kuwait, KAPF is charged with administering the Waqfs. According to the administrative system of KAPF, there is no more administrator or Qadi. The administration of each Waqfy fund is handled by an Administrative Council composed of between five and nine members chosen by the Minister of Awqaf for a mandate of a renewable two-year period. The Members of the Council choose one of them as president and another as vice-president. This new reform allows for the possibility of eliminating the need for an environmental court, by including at least one environmentalist in the membership of the Administrative Council, which will fill the role of the environmental Qadi.C) The Perpetuity, Irrevocability and Inalienability of Waqf
Waqf is recognized by most of the Muslim jurists as perpetually irrevocable, and inalienable. The perpetuity of the Waqf means that it lasts as long as the corpus itself, where the property of the corpus does not belong to the Waqif anymore, but to God. Irrevocability means that once Waqf is established there is no right for its denunciation. Irrevocability seeks the stability of the Islamic society, where beneficiaries cannot be threatened by being prevented from receiving the Waqf’s income. The inalienability prevents Waqf from being subject to any sale, disposition, mortgage, gift, inheritance, attachment, or any alienation whatsoever. However, Waqf corpus may be exchanged for equivalent property, or it may be sold, according to the Qadi grant, to fulfill the goals of the Waqf. Perpetuity irrevocability and inalienability assure stable and permanent care and protection by the administrator to the Waqf’s corpus, so that corpus could never be affected by the temporary circumstances of the administrator such as traveling, sickness, accidents, or handicap, and, in case of his incapacity, the Qadi is charged with replacing him by another capable administrator. These procedures will assure a level of environmental protection to the corpus that assures its productivity. Once the Waqf achieved its purposes, it becomes flexible and the administrator will have more freedom of choice. For example, in the family Waqf (Dhurri or Ahli), after the extinction of the Waqif’s descendants, and in the charitable Waqf (Khairi), after satisfying the charitable purpose, the administrator will have more freedom, under the supervision of the Qadi, to direct the Waqf’s income and to indicate the best new charitable purpose of the Waqf. Accordingly, the Waqf may be directed to serve the protection of the natural environment, especially when it is subject to serious threats by nuclear pollution, to endangered species, and to the ozone layer. Some jurists confirm this concept but condition that the new purposes should be as close as possible to the original purpose of the Waqf.D) The Duties of the Administrator
The administrator is not a new owner of the Waqf, but is only vested in the right to administrate it. He has to administrate under the conditions of the Waqif instrument. For example, if the Waqf is an agricultural land, the administrator should plant, care, and harvest with diligence to assure the best productivity and permanency of Waqf. This care and protection of the land provides real environmental protection to the natural environment, where land under the care of the administrator should be environmentally safer than lands under the protection of their owners or their lessees, because the first is supervised by the Qadi; however, the others are not. Moreover, the beneficiaries of the income and usufruct may bring it to the attention of the Qadi whenever their benefits appear less than expected, which increases the administrator’s control. One of the major things that encourage the administrator to care and protect the Waqf, even more than he does his own property, is that he is paid by the income of the Waqf, which should not exceed, in any case, more than 10 percent of the Waqf’s income. Moreover, he is caring, protecting, and serving the property of God where the corpus of Waqf belongs to God. Consequently, as believers and creatures of God, we should care, protect, and serve his property to be productive, environmentally safer, and suitably reflect God’s position. Therefore, it is inappropriate to see black smoke coming from a farm, or dead fish in a lake as properties of God. Finally, being legally responsible for any damage caused by the – positive or negative - acts of the administrator would make pressure on the Waqif to assure the environmental protection of the Waqf. A Court in Saudi Arabia examined a case presented from an administrator against the Saudi Company of Electricity that installed high voltage power cables over the Waqf property. In this case it is always possible that some exceptional circumstances, which “could not be anticipated by the Waqif may arise in course of time and necessitate the modification of the original terms of the Waqf instrument.” These circumstances cannot be used as an excuse to abrogate the original condition established by the Waqif unless they were qualified as fundamental and under them the beneficiaries cannot, or will not, be able to use their shares. For example, if a presumed charitable or family Waqf experienced a catastrophic environmental disaster, such as the environmental destruction resulting from the atomic bombs in Hiroshima and Nagasaki, or the environmental threat resulted from the Chernobyl accident, would the Waqf’s income still continue to be distributed to the beneficiaries, or should it bypass the instrument guidance and direct the income to offer the beneficiaries an environmental protection assuring their survival? The second choice will predominate, and will be supported by the beneficiaries themselves, the Qadi, and even by the Waqif himself if he is alive. Therefore, the Waqf should be adapted to face new situations, adjusted to face changing circumstances, and directed to fight and eliminate the threats, in order to help the beneficiaries benefit from their future shares. It should be noted that once the exceptional threats were eliminated, the environment was rehabilitated, and the beneficiaries became capable of enjoying their shares in a healthy environment, the income should be returned back to the original beneficiaries.E) The Judge’s Supervision Over the Administrator
The Qadi has supervision over the administrator, in the appointing phase, during the care of the Waqf, and even during its extermination. First, the Qadi has the right to appoint the administrator if the Waqf’s instrument neglected such procedure. Filling the Qadi’s position requires special talent to resolve the society’s differences. In resolving cases, the Qadi may consult experts in each field including the environmental field. Appointing an administrator will be based on the experience of candidates in the necessary field (business management, trade, or environment).. For example, an agricultural expert should be appointed as administrator for agricultural land and an architecture expert should be appointed to care for a building. Such an advised choice will necessarily reflect on the job that the administrator will do, and, finally, will offer a safer environment. This step of supervision will not be available for the Qadi if the Waqif appointed his own administrator or indicated the procedures of appointing the administrator to his descendants. However, the Qadi will always maintain his right to supervise the job of the administrator, whether he appointed him or the Waqif did. Second, the Qadi has the right to supervise the administrator after being selected. Whenever such administration affects the Waqf’s corpus, income, or usufruct the judge has the right to take the necessary measures, including the right to replace the administrator, to assure the protection of the Waqf. Some national legal systems declare that administrators can be replaced, but can also be held accountable before the Qadi for their administration and liable for negligence. The Qadi’s supervision will eliminate the ultimate right of the administrator to harm the environment by neglecting the care of the Waqf. Finally, when the administrator decided that the corpus is no longer productive, he can, under the supervision of the Qadi, exchange it with another corpus. Once the Waqf become unproductive, and does not cover the needs of the beneficiaries, the administrator should exchange it with another corpus, with the same value, and be able to cover those needs. This transaction needs to be approved by the Qadi, who shall verify that the productivity of the original corpus no longer covers the needs of the beneficiaries, the new corpus is the right choice, and that both corpuses are of the same value.F) The Goals of the Waqf
The incomes of the Waqf are always directed to serve charitable objectives, whether presently or ultimately. In the charitable Waqf the usufruct and the income are directed to serve the needs of the society as indicated by the Waqf’s instrument. Similarly, the family Waqf is directed in the long run, especially after the extinction of the Waqif’s descendants, to serve the same purposes. Fighting, maintaining, and rehabilitating the natural environment in the course of the increasing number of pollution sources is one of the main services that the charitable Waqf should render to the society. And since the Waqif “has a full latitude regarding the conditions that he may prescribed for the operation of the Waqf,” it would be necessary to increase the awareness of the environmental protection and the role that may be played by the Waqf to achieve such protection. To date, no donor has come to the KAPF asking to donate his property as environmental Waqf. And they cannot convince new donors of the importance of the environment because they have extra two fields beside the environment to publicize; health and handicapped and special needs individuals. Furthermore, they do not have capable personnel to convince new donors of the importance of donating for the environment. However, in KAPF they believe that donating the Waqf for a specific cause, whether the environment or some thing else, ties their hands, as only this cause can be served by the income of the Waqf. For example, according to them, serving the environment is not a permanent cause, as all the environmental problems at the time may eventually be solved. The extermination of the cause will prevent them from spending the income of this Waqf on any other present or future causes. Therefore, they prefer convincing donors to donate their Waqf for “Omom Khairat,” general benefits of the society, which include environmental protection as well.G) The Modern Development of the Waqf System
As a tradition, Waqf was subject to a number of modifications that seek adapting its function to the needs of the society. For example, the Waqif has the power to imposr conditions and codify the rules and functions of his Waqf, creat unpopular conditions, and a dissatisfied climate within the society. Accordingly, some national legal systems faced such problem and limited the Waqif’s power. In Egypt, a new law modified the traditional system of Waqf, where perpetuity and irrevocability were abolished from the Waqf Dhurri. Accordingly, only the charitable Waqf, based on the Waqif option, can be perpetual or temporary, and a family Waqf must be established for a certain period of time, which does not exceed sixty years or for the benefit of no more than two generations. Moreover, the Waqif was given the right to revoke his Waqf, wholly or partially, and to modify its conditions. Othermodifications were introduced in the Waqf system by summer of 1952, to completely abolish the non-charitable Waqf. Another reform to the tradition of Waqf took place in Lebanon. The characters of perpetuity and irrevocability were discarded by the law of March 12, 1947. According to Article 7 of the Lebanese Law concerning the Dhurri Waqf the Waqif was granted “[without abrogating the present law, the right to revoke the whole or part of his Waqf Dhurri, change the beneficiaries, and its condition]”. Two generations was the maximum period of time for the duration of the Waqf. Similarly, a Syrian Legislative Decree was issued in 1949, abolishing the Waqf Dhurri. The legislature eliminated unpopular conditions from the Waqf in Syria. However, the legislature introduced another unpopular condition over the Waqf system. For instance, when dissolving the mixed Waqf (partly Dhurri and partly charitable), if it is undivided, it should be sold in public auction and “in the case of Waqf Dhurri, where the right of charitable objects is contingent upon the extinction of the Waqif’s descendents, five percent of the proceeds shall be appropriated to such charitable objects, ten percent is allocated to national defense, and the remainder distributed among the beneficiaries.” The ability to modify the tradition of the Waqf was an advantage to reinforce the environmental protection through the Waqf. In 1993 KAPF was established as an independent public authority. One of the fruits of this foundation is the establishment of Waqf funds, which are directed to serve society’s needs. Recently, and after the environmental destruction caused to the region by the Iraqi invasion to Kuwait, an environmental fund was established to support the efforts of environmental protection in Kuwait. However, the abstention of the donors to establish environmental Waqfs supports the idea of unifying the health fund, special needs’ fund, and the environmental fund. However, this unification did not affect the environmental activities of KAPF. The Regional Organization for the Environmental Protection of the Gulf was one of the beneficiaries of this fund, caring and greening Kuwait school gardens, supporting the project of a tree for each student, supporting local organizations in the field if the environment, and financing the publication of environmental ideas.Conclusion
The Islamic Waqf is an old tradition that provides financial support to the relatives and the public needs. This tradition was not well organized and the financial resources were not always used in the right way. The State intervenes to collect these financial resources and directs them in the right way to support the needs of the public services. The natural environment could be one of the beneficiaries of the Waqf. Humans, the government, and private bodies are capable of defending themselves, but the natural environment cannot do so. On the contrary, nature is a victim in times of peace and times of armed conflict. When humans fight in a war, nature is victimized. And when human enjoy a picnic, nature is victimized by all kinds of destruction. Therefore, the financial resources of the Waqf should be used to support nature and keep it clean. In most of the cases where donors establish their Waqfs in fields other than the environment, it can be attributed to the lacuna of the environmental awareness, the weak environmental awareness among the employees who receive the donors. It is certain that if an environmental believer were in the reception of the future donors, a great number of Waqfs would be attributed to the protection of the environment. Therefore, it is environmentally necessary to establish a considerable level of environmental awareness among the employees of the Awqaf. Despite the fact that Waqf is an old tradition, it is flexible and can be adapted to respond to the needs of the society. The environmental problems can find great financial support by the Waqf, if the condition of such support does not violate an Islamic rule or the Waqif’s statement.Table of Authorities:
Books: - ABDUR RAHIM, THE PRINCIPLES OF MUHAMMADAN JURISPRUDENCE 305 (Madras, 1911). - ABDUSATTAR ABO GODAH & HUSSEIN SHEHATAH, THE FIGH RULES AND ACCOUNTABLE BASICS OF WAKF (in Arabic) (Kuwait Awqaf Publication, 1998). - A. QADRI, ISLAMIC JURISPRUDENCE IN THE MODERN WORLD 299 (1963). - AL-MOTAWA’A IKBAL, PROJECT OF KUWAIT AWQAF LAW IN THE SCHEMA OF INVESTING AND DEVELOPING THE WAQFY INCOMES (In Arabic) 140(2001). - DR. ABUBAKR AHMED BAGADER ET AL., ENVIRONMENTAL PROTECTION IN ISLAM (IUCN Environmental Policy and Law Paper No. 20 Rev., 1994). - Henry Cattan, The Law of Waqf, in LAW IN THE MIDDLE EAST (MAJID KHADDURI ED., 1955). - ITSUZO SHIGEMATSU & ABRAHAM KAGEN EDS., CANCER IN ATOMIC BOMB SURVIVORS 67 (Plenum Publishing Corporation, 1986). - KUWAIT AWQAF PUBLIC FOUNDATION, THE WAQFY FUND FOR THE PROTECTION OF THE ENVIRONMENT (1995). - MANSOOR ABOEBEID, SUMMARY OF WAKF RULES 5 (Kuwait Awqaf Public Foundation, 1996). - NORMAN J. VIG & REGINA S. AXELROD EDS., THE GLOBAL ENVIRONMENT (CQ Press, 1999). - WIGMORE, PANORAMA OF THE WORLD’S LEGAL SYSTEMS (1936). - WILLIAM THOMAS, SCORCHED EARTH: THE MILITARY’S ASSAULT ON THE ENVIRONMENT (1995).Law Reviews:
- Ann Van Wynen Thomas, Note on the Origin of Uses and Trusts-Waqfs, 3 Sw. L. J. 162 (1949). - Antoine Bouvier, Protection of the Natural Environment in Time of Armed Conflict, 285 INT’L REV. OF THE RED CROSS 567 (1991). -Anwar A. R. Al-Fuzaie, The Civil Protection of the Endowment: Study In Kuwait Law, 23 J. OF L. 77 (1999). - David D. Caron, Protection of the Stratospheric Ozone Layer and the Structure of International Environmental Lawmaking, 14 HST. INTL. COMP. L. REV. 755 (1991). - Gerald Woodcock, M.B.A. & Michael R. Fox, Ph.D., Hanford and Public Health: No Cause for Alarm, 31 Gonz. L. Rev. 69 (1995-96). - Jeffrey L. Canfield, Soviet and Russian, Nuclear Waste Dumping in the Arctic Marine Environment: Legal, Historical, and Political Implications, 6 GEO. INT’L. ENV’TL. L. REV.353 (1994). - Lakshman D. Guruswamy & Jason B. Aamodt, Nuclear Arms Control: The Environmental Dimension, 10 COLO. J. INT’L ENVT’L L. & POL’Y 267 (1999). - Majid, Wakf as Family Settlement Among the Mohammedans, 9 J. COMP. LEG. 122 (1908). - Salim Hariz, The Waqf, Studies and Research Published by the Lebanese University, Beirut (in Arabic) at 76, 83(1994). - Sheikh Abdullah Ben Mohammed Ben Saad Al Konain, The Efforts of Saudi Judiciary in Developing the Environmental Protection, A Paper Presented to the Conference on THE ROLE OF JUDICIARY IN THE DEVELOPMENT OF ENVIRONMENTAL LAW IN THE ARAB REGION, held at Kuwait, Oct. 26-28, 2002. - William F. Fretcher, The Islamic Wakf, 36 MO. L. REV. 153(1984).Conferences:
Mahmood Hassan, Upon Teaching the Environmental Law from Islamic Point of View (in Arabic), a paper presented to the Conference of ENVIRONMENTAL LEGISLATION IN THE ARAB REGION (Sept. 30- Oct. 2, 2000) Kuwait University, Faculty of Law.Statutes and Regulations:
- As’Sanadeeg Alwaqfeiah, Anitham Alaam Wa La’Ehatoho Atanfeetheiah [The Waqfy Funds, The Statute and the Executive Rules] art. 2 (Kuwait Awqaf Public Foundation, 1996). - Egyptian Law No. 180, Sept. 1952, Modifying the existing law of Waqf, art. 3. - Egypt Law No. 48/1946 concerning the Rules of Waqf, 1946, art. 7. - Ghanoon Almoraf’aat Almadaneyah Watijare’yah AlkowaityRagom 38 Lesanat 1980 [Kuwait Civil And Commercial Procedural Act, No. 38/1980], art. 2. - The Lebanese Law of March 12, 1947, regulating the Waqf Dhurri, art. 13. - Marsoom By’Ghanoon Ragom 67/1980 Be’Isdar Al-Ganoon Al-Madany [Kuwait Civil Law of 67/1980], art. 86 (2). - Marsoom Ensha’a Alamanah Ala’amah Lilawgaf Ragom (257) Lisanat 1993 [Decree Establishing the Secretariat General of the Kuwaiti Awqaf No. 257/1993] - Ministerial Decision of the Minister of the Kuwaiti Justice, Awqaf and the Islamic affairs No. 10/1995. - Syrian Leg. Decree No. 76 amended by Legislative Decree No. 97 of Nov. 26, 1949, published in the Syrian Official Gazette (1949).Internet Resources:
- Cnn.Com, Antarctic Ozone Hole Larger Than Ever, SCI-TECH., Oct. 6, 1998 available atOthers:
- Encyclopedia of the Orient,
