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Fatwa: Zakah could be paid to an educational Waqf endowment

Jasser Auda Executive Director, Maqasid Institute Question: Can I pay my Zakah to support Islamic education? And can I give this Zakah to a Waqf endowment, where its Return on Investment (ROI) will go to an Islamic education college? In other words, can the Zakah fund transform into a Waqf fund? Answer: Zakah is one of the five pillars of Islam and thus an important obligation on every Muslim who has wealth above the "poverty threshold" (Arabic: Nisaab, which is estimated today as growing wealth or savings that is roughly worth more than a couple thousand dollars or 85 grams of gold). Zakah is payable to a number of categories mentioned in the Quran, verse 9:60 (trans. Asad): "The offerings given for the sake of God are [meant] only for the poor and the needy, and those who are in charge thereof, and those whose hearts are to be won over, and for the freeing of human beings from bondage, and [for] those who are over burdened with debts, and [for every struggle] in God's cause, and [for] the wayfarer: [this is] an ordinance from God - and God is all-knowing, wise.” Thus, giving Zakah to an Islamic education college to spend on books, classrooms, teachers, students, computers, etc, does fall under the legitimate categories of receiving Zakah, specifically under the category of "in God's cause” (fi sabeel Allah). There is no significant difference of opinion about this amongst contemporary scholars, even if the student who receives a scholarship or book is not "poor", even if the teacher who receives a compensation or a computer is not "needy", and so on. It is a condition, however, that the college receiving Zakah is trustworthy and has a mission of advancing true Islamic education and knowledge. On the other hand, Waqf or endowment is a Sunnah of the Prophet (S), a highly rewarded act of charity, and especially important when it comes to supporting Islamic education. In fact, in my view, establishing Awqaf endowments for Islamic education is "required" (Wajib) because Awqaf are the only means in our time to protect another Wajib (obligation), which is what we call in today's language: academic freedom. An endowment supports the academic activities of an Islamic education institute, and the Institute's "board of directors" (or equivalent body) will make sincere and independent decisions on how to spend the endowment’s return on Islamic education.

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If there is no endowment and support only comes in piece-meals from individuals, organizations or governments, such funds will normally be subject to stated or unstated conditions and constraints, and the institute will always remain captive to the donors' economic and political interests. This is the case we witness today in many Islamic institutions and especially in Muslim majority countries, unfortunately. Today, many Islamic historically renowned institutes lost their academic freedom and their scholarly integrity, all due to conditions put by their “sponsors” and pressures from political regimes they operate under to take certain stances and issue certain Fatawa. Instead, if the funds go to a Waqf endowment with no conditions or strings attached, and the decision of the board is independent, then the educational process is free from such interests and pressures and can be sincere only to Allah, Islam and the Ummah’s best interest. Endowments are the only means, in my view, that guarantee such freedom. Donating to an endowment that funds Islamic education becomes “obligatory” (Wajib), or more accurately a "collective obligation" (Wajib Kifayah). This means that a sufficient number of believers must rise to this obligation until it is fulfilled, otherwise all believers are wrongful. Now an important technical question is: Can a Zakah fund "transform" into an investment or a Waqf fund? My answer is: why not? There is no evidence from the Shariah that Zakah cannot be given to an endowment that achieves the same objectives and intents (Maqasid) of the Zakah itself and benefits the same category of receivers of Zakah in the best way. However, a number of objections have to be addressed in the following paragraphs. One objection is that Zakah must be given to the receivers themselves to own immediately (Tamalluk Fawri) and cannot be received by an organization or an investment entity. This is actually the opinion of some notable contemporary scholars such as Sheikhs Wahba al-Zuhaili, Abdullah Alwan, Mohammad Taqi Uthmani, and others (refer to: Islamic Fiqh Academy - Majma’ al-Fiqh al-Islami - 3rd Council, Amman, October 1986), all objected to Zakah funds not given directly to beneficiaries. However, many other notable contemporary scholars have issued Fatwas to allow Zakah to be given to a charitable investment, and not necessarily the end receivers themselves to own immediately. Examples of such scholars are: Sheikhs Yusuf al-Qaradawi, Mustafa al-Zarqa, Abdul-Fattah Abu-Ghuddah, Abdul-Aziz al-Khayyat, Abdussalam al-Abbadi, Mohammad Faruq Nabhan, and others. For more details on these opinions, also refer to the Islamic Fiqh Academy - Majma’ al-Fiqh al-Islami, in its 3rd Council in Amman, October 1986. After much debate, the Majma’ finally issued an official decision allowing the investment of Zakah by receiving organizations (text quoted in footnote 1 below). In that Fatwa, however, two conditions were stated: 1. The urgent needs of the poor and the needy must be not be compromised, and 2. Precautions must be taken so that the Zakah funds are not lost in the investment. The first condition does not apply to our case, since it applies only to Awqaf and investments for the poor and the needy, i.e. “fi sabeel Allah” category not the “al-fuqaraa wal-masakeen” category. On the other hand, the

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second condition could be achieved when Zakah funds are given to educational Awqaf institutions, by proper planning, accounting and auditing. Another related question addresses the Maqasid/intents of the above transactions: What is the Maqsid/purpose of putting Zakah funds in investments? The Maqsud/purpose here is to achieve growth and sustainability of the funds. It is clear that these purposes (growth and sustainability of the funds) are achieved even in a better way with a Waqf investment, far better than a small business or an investment property that is purchased by a charity organization. Therefore, we have established so far that Zakah funds could be received to be invested, and then spent on the same causes and categories that the Zakah was given for originally, under the two conditions mentioned above. Now there is another objection to investing Zakah funds specifically in a Waqf endowment. Many scholars mentioned that one of the “conditions” (Shurut) of a Waqf endowment is the existence of a specific donor (Waqif) who actually owns the donated property or fund and then gives up its ownership to a Waqf. However, the donor of Zakah does not actually own the fund, neither does the organization that will receive the Zakah actually own the fund - so goes the objection. That is why several scholars who allowed Zakah to be invested excluded Waqf from such investments (for example, Sheikh Yusuf Qaradawi. Refer to: http://www.aljazeera.net/programs/religionandlife/2007/5/20). With all due respect to my sheikhs, including Sheikh Al-Qaradawi, I see the question here to be: Is the pre-ownership of the donated property or fund a definite condition (Shart)? Or do we have precedents of endowments that were not owned by a specific Waqif/donor? The answer is yes we do. It is well established that Omar Ibn al-Khattab (r) and Othman Ibn Affan (r) did transfer some of the "conquered land" into "endowed land" (Waqf, Habss), with the authority of their governments and without owning such land themselves. That is why all scholars in the past and present considered the land in Palestine that Omar endowed to be ”Awqaf" that cannot be sold or changed. (Refer for many related Fatawa that were given by scholars over the past decades, and refer to Abu Yusuf’s account of Omar’s story in his Al-Kharaj; excerpts quoted in footnote 2 below). However, there is a difference of opinions amongst jurists about whether “Waqf al-Imam” (an endowment initiated by a governor) or in other terminology "al-Irsaad” (a trust that is initiated by a governor) is indeed a legitimate Waqf. They debated whether an analogy (Qiyas) with Omar’s and Othman’s decisions mentioned above is a correct analogy. Some jurists judged that an Irsaad is not a proper Waqf since the governor does not have actual ownership of the trust before designating it, while others say - which is the opinion they find closer to al-Maslahah or public interest and I find more correct - that a governor is a legitimate delegate (Wakeel) for the Ummah, which is the ultimate owner of the public funds, and therefore has the authority to initiate the Waqf (excerpts from Al-Nawawi’s Al-Majmou’ is quoted in footnote 3 below to support this argument).

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In the same way, I believe that the directors of a Waqf are delegates (Wukalaa) for the community, who is the ultimate receiver of the Zakah funds in any case, and therefore they have the authority to initiate Awqaf from the Zakah funds they manage for the sake of the best interest of the Zakah receivers. Conclusion: Zakah could be paid to support a trustworthy Islamic education institute, and could be paid to a Waqf endowment that supports such institute. Endowments for Islamic education is an collective obligation (Wajib Kifa’i) for the sake of academic integrity and freedom. However, the following conditions apply: 1. No condition (Shart) shall be attached to this Waqf that compromises the integrity and freedom of Islamic education and research. 2. Precautions shall be made to invest the Zakah funds efficiently, and all possible care shall be given to planning, accounting and auditing. 3. Donors shall be made aware of the Waqf investment of their Zakah, and that the managing authority of the Waqf is delegated to act on behalf of the Zakah receivers and in their best interest. And Allah knows best.

1 * نص االقراارر: إإنن مجلس مجمع االفقهھ ااإلسالمي االمنعقد في ددووررةة مؤتمرهه االثالث بعمانن عاصمة االمملكة ااألررددنيیة 8االهھاشميیة من 11صفر 13- . بعد ااططالعهھ على االبحوثث االمقدمة في موضوعع توظظيیف االزكاةة 1986 تشريین ااألوولل 16-

ليیك فردديي للمستحق٬، ووبعد ااستماعهھ آلررااء ااألعضاء وواالخبرااء فيیهھ قررر ما يیلي: توظظيیف في مشارريیع ذذااتت رريیع بال تماالزكاةة في مشارريیع ذذااتت رريیع بال تمليیك فردديي للمستحق: يیجوزز من حيیث االمبدأأ توظظيیف أأمواالل االزكاةة في مشارريیع

ع االزكاةة ووتوززيیعهھا على ااستثمارريیة بتمليیك أأصحابب ااالستحقاقق للزكاةة٬، أأوو تكونن تابعة للجهھة االشرعيیة االمسؤوولة عن جمة للبعد عن االخسائر. ووهللا أأعلم.أأنن يیكونن بعد تلبيیة االحاجة االماسة االفورريیة للمستحقيین٬، ووتواافر االضماناتت االكافيی

2 * أأبو يیوسف االخرااجج - - 24 : "شاووررهھھھم (عمر) في قسمة ااألررضيین االتي أأفاء هللا على االمسلميین من أأررضض 27-

ررااددوواا أأنن يیقسم لهھم حقوقهھم ووما فتحواا٬، فقالل عمر ررضي هللا عنهھ فكيیف بمن يیأتي من االعرااقق وواالشامم فتكلم قومم فيیهھا ووأأقالواا : أأتقف ما أأفاء هللا … االمسلميین فيیجدوونن ااألررضض بعلوجهھا قد ااقتسمت ووووررثت عن ااآلباء ووحيیزتت٬، ما هھھھذاا برأأيي

يیحضروواا؟ فكانن عمر ال يیزيید على أأنن عليینا بأسيیافنا على قومم لم يیحضروواا وولم يیشهھدوواا٬، ووألبناء االقومم ووألبناء أأبنائهھم وولم”.أأيي ررأأيیك٬، فنعم ما قلت ووما ررأأيیتفقالواا جميیعاً االر… ووقد ررأأيیت أأنن أأحبس ااألررضيین … يیقولل: هھھھذاا ررأأيي

3 * االنووويي االمجموعع - : "إإنن ااإلمامم بالخيیارر إإنن شاء سلم االفرسس وواالسالحح ووااآلالتت إإلى االغاززيي أأوو ثمن ذذلك 6/160 -

ااستأجر ذذلك لهھ٬، ووإإنن شاء ااشترىى من سهھم (في سبيیل هللا) أأفرااساً ووآآالتت االحربب٬، ووجعلهھا ووقفاً تمليیكاً لهھ فيیملكهھ ووإإنن شاء في سبيیل هللا٬، وويیعطيیهھم عند االحاجة ما يیحتاجونن إإليیهھ".

* Finally, please note that this Fatwa is the opinion of its author and does not necessarily represent the opinion of institutions or Fatwa academies of which he is a member.

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