Nazir waqf from shari'ah perspective and Algerian Law : an analytical study

Abstract

Throughout history, waqf has provided religious, social and economic assistance. However, and for many reasons, waqf in general has become underdeveloped and lost its real role in Muslim societies including Algeria. The weak legal framework that Algeria provides for the waqf contributes to the deterioration of the waqf. One of the major element in the management and administration of the waqf is the nazir as he is the only person in direct contact with the waqf property. However, the articles of law dedicated to fix his issues are inadequate and insufficient. This research relies on inductive approach in examining the Muslims scholars’ discussions on the nazir as well as analyzing the articles of the law related to him, from the perspective of the Algerian waqf experience. This study also, relies on qualitative approach by conducting interviews with experts, who have direct dealing with the waqf. In addition, to people from ShariÑah background as well as from legal and administrative ones. This is done to identify the gaps of the law and providing right recommendations for the position of nazir. The findings of this research show that the articles of the law of waqf related to the nazir are insufficient and need review and update in the light of contemporary developments in waqf sector in general and in the governance of waqf institutions in particular. Mostly the findings show that the nazir under the Algerian law is under-qualified in terms of knowledge and skills, which unable him to fulfil his functions. In addition, the articles related to the set of his functions are general and not precise. This research also finds that Algeria lacks a reliable process to upgrade the level of the nazir. Furthermore, this research finds that Algeria opts for a vertical model of managing and administrating the waqf. This leads to slow decision-making and hinders the spirit of motivation, creativity and innovation of the nazir. Furthermore, this research finds that bureaucracy in Algeria is preoccupied by the rules and hierarchy rather than by the results. The research recommends that the starting point to the legal reform is to reformulate the eligibility requirements stipulated for this position, in terms of level of knowledge and skills. The nazir should be a person with creativity, innovation, and integrity and teamwork spirit. Furthermore, the research suggests that the nazir should fulfil a set of functions that are in line with contemporary requirements in terms of scientific accuracy and quality governance. The research also suggests developing an accounting system and using modern technological means to enhance transparency, which is one of the most important elements in the requirements for a good governance of waqf institutions