(Implementation of Istibdal on Waqf Land in Malaysia: A Comparative Study between Syarak Law and Civil Law)

Abstract

Istibdāl plays an important role in unproductive waqf lands. Although previous studies have converged on certain aspects including its implementation, there is still a vast uncharted area of studies on istibdāl. This study focused on three main objectives: First, observations on istibdāl from the perspective of syarak law; second, its implementation at the State Islamic Religious Council level; and third, a study on istibdāl from the comparative aspect, between syarak and civil laws. This study was conducted using the qualitative study method; the approach was exploratory in nature related to documents. Besides performing library research, field studies were also conducted through interviews with several waqf officers from the State Islamic Religious Council. Research analysis was performed through document study involving inductive, deductive and comparative analysis techniques. Firstly, the study found that implementation of istibdāl is allowed if waqf land is in a state of emergency, in accordance with the four sects. Besides this, the Hanafi sect also allows istibdāl if a substituted property contains the element of maslahat (benefit). Secondly, the findings revealed that 37.5 percent of Main implemented istibdāl as land for sale, 37.5 percent did not implement this and the other 25 percent did not encourage it. Thirdly, the study found that the position of istibdāl is not aligned with civil laws which include the Land Acquistion Act 1960 (Act 486) Section 3 (1) and the National Land Code 1965 (Act 56) Section 115 (4) (a).Based on these findings, several suggestions are proffered to ensure that implementation of istibdāl is effectively executed in the country.