THE DEVELOPMENT OF WAQF MANAGEMENT TRHOUGHT WAQF ACT IN INDONESIA (Note on Republic of Indonesia Act Number 41 of 2004 on Waqf)

THE DEVELOPMENT OF WAQF MANAGEMENT TRHOUGHT WAQF ACT IN INDONESIA (Note on Republic of Indonesia Act Number 41 of 2004 on Waqf)

Aden Rosadi 1 , Deden Effendi 2 , Busro 3

1 Faculty of Sharia and Law, Universitas Islam Negeri (UIN) Sunan Gunung Djati Bandung Jl. AH Nasution No. 105 Cibiru, Bandung, Jawa Barat, Indonesia

E-mail: adenrosadi@uinsgd.ac.id 2 Faculty of Sharia and Law, Universitas Islam Negeri (UIN) Sunan Gunung Djati Bandung

Jl. AH Nasution No. 105 Cibiru, Bandung, Jawa Barat, Indonesia E-mail: dedeneffendi@uinsgd.ac.id 3 Faculty of Ushuluddin, Universitas Islam Negeri (UIN) Sunan Gunung Djati Bandung Jl. AH Nasution No. 105 Cibiru, Bandung, Jawa Barat, Indonesia E-mail: busro@uinsgd.ac.id

Abstract: The Development of Waqf Management Throught Waqf Act in Indonesia (Note on Republic of Indonesia

Act Number 41 of 2004 on Waqf). Waqf is an Islamic endowment of property to be held in trust and used for a charitable or religious purpose. The development of waqf law in Indonesia, as one of religious institutions, is the realization of Muslim community needs to fulfill their religious life. The object of waqf that formerly was focused on immovable objects, with the presence of the Act has been broader to movable property, especially money waqf. This paper describes the urgency of civilization and the dynamics of waqf both from the side of law and its management in the context of people prosperity. By using library research that use qualitative data, this paper found the existence of waqf, normatively lies not only in the individual obligations, but also in social meaning in the context of collective obligations involving mawqûf bih (the property), wâqif (the person creating a waqf), nazir (the supervisor/manager of waqf), mauqûf ‘alayh (waqf users), and the government through legislation. Basically, the Republic of Indonesia Act Number 41 of 2004 regarding Waqf is based on the philosophical, socio- historical, and juridical foundation.

Keywords: waqf; wâqif; nazir; legislation.

Abstrak: Pengembangan Manajemen Wakaf melalui Undang-Undang Wakaf di Indonesia (Telaah terhadap

Undang-Undang RI Nomor 41 Tahun 2004 tentang Wakaf). Wakaf adalah sumbangan kekayaan dalam Islam yang pelaksanaannya diyakini berdasarkan keimanan dan digunakan untuk tujuan amal berbasis keagamaan. Pengembangan hukum wakaf di Indonesia, sebagai salah satu pranata keagamaan, merupakan realisasi kebutuhan masyarakat muslim untuk memenuhi kebutuhan kehidupan keberagamaan mereka. Objek wakaf yang sebelumnya terfokus pada benda-benda tak bergerak, dengan keberadaan undang-undang, telah meluas dan kini juga mencakup harta tak bergerak, terutama uang wakaf. Tulisan ini menggambarkan urgensi pembudayaan dan dinamika wakaf baik dari sisi hukum dan manajemennya dalam konteks perwujudan kesejahteraan masyarakat. Dengan menggunakan penelitian pustaka, yang menggunakan data kualitatif, tulisan ini menemukan bahwa wakaf, secara normatif, tidak hanya terletak pada kewajiban individu, tetapi juga dalam arti sosial dalam konteks kewajiban kolektif yang melibatkan mauqûf bih (hak milik yang diwakafkan), wâqif (orang yang mengeluarkan wakaf), ƒœ‹” (supervisor/manager wakaf), mauqûf ‘alayh (pengguna wakaf), dan pemerintah melalui undang-undang. Pada dasarnya, UU RI Nomor 41 tahun 2004 tentang Wakaf didasarkan pada landasan filosofis, sosio-historis, dan yuridis.

Kata kunci: waqf; wâqif; ƒœ‹” ; legislasi.

Introduction

their religious life. The Islamic Law (Sharia), as The development of waqf (endowments) in

implied in the Quran and the Sunnah, urged the Indonesia, as one of religious institutions, is the

Muslim community to separate and set aside, realization of Muslim community needs to fulfill

or give away some of their belonging for the

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common interest. 1 However, the Quran does not of waqf institution leads to a larger portion of

waqf for general welfare. In today’s welfare-state parameters were further developed by jurists

contain specific references on waqf. 2 Its legal

context, waqf has great potential to support (fuqâhâ`) throughout history.

state’s expenditures on public services. The basic idea lies in the belief that

Most people donate waqf in form of land. 5 performing kindness is part of duty and form of

This is related to the waqf conditions that it devotion to God. The Muslim community develops

has to be secure and permanent as a shape of the pillars and terms of waqf implementation.

jâriyah charity (the never stop flowing virtue). In this sense, its implementation is linked and

Some movable property can also be used as bound by norms about what should and should

waqf property. Waqf supervisor/manager (nazir) not be done in waqf implementation. This waqf

is required to perform their duties and functions regulation is an inseparable part of Islamic Law

in accordance with the prevailing provisions, as (Sharia). It is closely linked to other areas of law

well as general provisions regarding attitudes and society, such as inheritance, will, grant, and

and actions that have been established by Islamic marriage. Those areas are usually incorporated

teachings.

into the Civil Law. 3 Basically, the implementation of waqf is Generally, there are two basic forms of

almost the same throughout the Islamic world. waqf. Those are family waqf (waqf ahlî/dhurrî)

However, there is diversity in theory, practice, and common waqf (waqf khayrî). In the family

and legal approach from one school of thought waqf

, profit that gained from waqf property 7 is (mazhhab) to another 6 . State intervention in waqf intended for the family wâqif benefit, as long as

law formulation has resulted to the diversity of the waqf denoted theirs exist. The common waqf

waqf implementation among Islamic countries 8 . (waqf khayrî) forms eternal allocations on waqf

Therefore, the research results of waqf in the purposes. Although waqf beneficiaries may come from family members, the philanthropic ethos

5 The information comes from waqf records in Istanbul, Jerussalem, Cairo, and other parts of Islamic world show that

1 The utilization of waqf properties is various in the land waqf covered a large portion of agriculture land. For world. Generally, it is categorized into five categories, which

instance, land survery in Egypt in 1812 and 1813 exposed that are: foods, housing, health, education, and religious purposes.

land waqf covered 6.00.000 fedan (1 fedan = 0,95 acre) from Further read: “Deden Effendi, Penegakan Hukum Wakaf di

2,5 million fedan Mustafe Muhammad Ramadhan, “Daur al- Indonesia”, Ph.D Dissertation of UIN (Universitas Islam Negeri)

Auqâf fî Da’m al-Azhar”, in Proceeding of the Symposium of Sunan Gunung Djati , Bandung, 2011, pp. 4-6.

Awqaf Institutions in the Arab and Islamic World, (Institute of 2 One of the most reffered histories of waqf is “Musadad,

the Arab Research and Studies, Bagdad, 1983), p.93-112. The Yazîd Ibn Zurayj, and Ibn ‘Awn relayed from Nâfi’ and Ibn ‘Umar,

waqf impelementation in form of huge mosques in Aljazair in he said: “’Umar (may Allah be pleased with him [ABPWH]) had

183 was 534. Muhammad Abu al-Afhan, “al-Waqf ‘alâ al-Masjid a piece of land in Khaybar which he loved the most, then came

fî al-Maghribwa al-Andalūs”, in Studies in Islamic Economics, to the Prophet Muhammad (peace be upon him [PBUH]), to

Jeddah: King Abd al-Aziz University, International Center ask guidance for the land. Then the Prophet spoke “hold its

for Reserach in Islamic Economics, 1985, p. 315-342. One staple and endow its result. ‘Umar (may Allah be pleased with

third of land in Turk were waqf properties, ServetArmagan, him [ABPWH]). endowed the land, so it was not for sale, grant,

“Lamhah‘an Hâlat al-AwqâffîTurki”, in Hasan‘AbdAllâh al-Amîn, and inherited. The property was donated to the poors, families,

Idârawa TathmîrMumtalaka al-Awqâf, Jeddah: Islamic Research slaves, guest of Allah, and traveller; and for the property

and Training Institute (IRTI) of the Islamic Development Bank, managers, they are allowed to consumed the harverst from

1989, p.335-344. In Palestine, there were 233 recorded waqf the land but in sufficient manner” Abû Bakr Ahmad Ibn al-

consist of 890 properties, up to the 16 th century there were 92 Husayn Ibn ‘Alî al-Baihaqî. (1352 H). al-Sunan al-Kubrâ, J. VI, Al-

individual waqf covered 108 properties (IRCICA, p.L) H amîd: Math ba’ahDâ’irah al-Ma’ârif al-Uthmâniyya. p. 163.

6 Bo Rothstein & Rasmus Broms, “Governing religion: the 3 Due to the volunteer nature of waqf, it always separated

long-term effects of sacred Financing” Journal of Institutional from grant/donation (shadaqa) and zakât. Jaih Mubarok limits

Economics /FirstView Article/September, 2013, pp 1-22. http:// waqf based on: (1) legal acts, (2) waqf object; and (3) duration

dx.doi.org/10.1017/S1744137413000271 of property ownership. Even if waqf is related to zakât and

7 Mohd Afandi Bin Mat Rani, “Fatwa on Waqf: Specialized sh adaqa, there are some dimension of waqf that can be utilized

Analysis in Hand Over of Waqf Lands by State Authority”, as perimeters. Jaih Mubarok, Wakaf Produktif, Bandung,

International Journal of Nusantara Islam, Vol. 3, No. 1, 2015, pp. Simbiosa Rekatama Media, 2008.

47-58, http://dx.doi.org/10.15575/ijni.v3i1.411 4 Diharto, “Revitalization through Innovation WAQF

8 Savaş Alpay and Mohamed Aslam Haneef (eds.), Property Traditional Development” The International Journal

Integration of Waqf and Islamic Microfinance for Poverty of Business & Management , Vol 4 Issue 9 September, 2016, pp.

Reduction: Case Studies of Malaysia, Indonesia and Bangladesh, 240-243.

(IIUM-SESRIC, 2015), p. 4.

Aden Rosadi: The Development of Waqf Management Throught Waqf Act in Indonesia

Muslim world show historical distortions. There is a common opinion, as suggested by This is due to several events that occurred

orientalists, that the rigidity of waqf institutions

is one of the reasons for economic weakening and nationalization have led to the weakening of

during the nineteenth century. 9 Colonialization

in the Islamic world 14 . However, this view was this institution. Even the vast majority of people

rejected by those who claimed that the waqf’s barely have basic knowledge of waqf. In many

flexibility in the Ottoman Turks period would not cases, colonial powers want a status quo on

cause harm except the excessive regulation in waqf 15 10 . It was intended that the colonial policy the nineteenth century .

can provide guarantee for social stability and Rather than restoring waqf institutions, legitimacy. At the same time, a large amount

most of post-colonial Muslim countries tended of unrecorded waqf property could be easily

to eliminate them or nationalize waqf property 16 .

The state’s attempts to control waqf as a way After the colonial period, most Muslim

overrun by colonial rulers 11 .

to expand power take place throughout Islamic countries tend to nationalize waqf-[s] property 17 12 , history, and are constantly facing challenges .

even abolishing them. Most Muslim countries, There is small number of empirical research on either directly or indirectly, administer waqf under

the management and nationalization of waqf special directorate or ministry, thus tend to end

property 18 .

non-governmental waqf identity. The state’s The indicator of waqf’s economic potential attempts to control waqf as one of means to

actualization is the commonweal 19 (al-mashlaha extend power have always existed in Islamic history. At the same time, the efforts to make

the Ottoman Empire: a Case of Manastir with Special Reference

waqf as autonomous institutions are always

to 18th Century Judicial Records. Hikmet: Ilmi Arastrima Dergisi, Journal of Scientific Research, 2005, pp. 19-26.

challenged.

14 Adeel Malik, “Was the Middle East’s economic descent

The lasting nature of the property in waqf ahlî/

a legal or political failure? Debating the Islamic Law Matters Thesis” CSAE Working Paper, WPS/2012-08, 2012, Centre for

dhurrî has meaning and related to the transition

the Study of African Economies Department of Economics.

from one generation to the next generation. A

University of Oxford.

15 number of benefits increase to the point where Mehmet Babaca, “Economics of Philanthropic Institutions,

Regulation, and Governance in Turkey”, Journal of Economic and

the benefits of waqf are no longer significant

Social Research, Vol. 13, (2), 2011, pp. 61-89.

to fulfill individual necessities. In this sense, 16 Niccolo` Pianciola and Paolo Sartori, “Waqf in Turkestan: the suggested argument is that sustainability the colonial legacy and the fate of an Islamic institution in early

Soviet Central Asia, 1917–1924”, Central Asian Survey,Vol. 26,

is not always an absolute requirement in waqf

(4), December 2007, pp. 475-498.

13 17 implementation Haitam Suleiman, “The Islamic Trust waqf: a Stagnant .

or Reviving Legal Institution?” Electronic Journal of Islamic and Middle Eastern Law (EJIMEL) , Vol. 4, 2016, pp. 27-43.

9 After the revolution in 1952 and the adoption of socialist 18 Zunaidah Ab Hasan, Azhana Othman, Khalilah system, the social and financial capitals were taken over by

Ibrahim, Mohd Ab Malek Md Shah, Abd. Halim Mohd Noor, the ruling regime. On that time, the waqf institutions faded.

“Management of Waqf Assets in Malaysia” International The government abolished waqf ahlî, and at the same time

Journal of Nusantara Islam, Vol. 3, No. 1, 2015, pp. 59-68, controlled waqf kharî . Afterward, waqf culter in Egypt people

http://dx.doi.org/10.15575/ijni.v3i1.412; Noraini Mohamad, gradually vanished, and the number of new waqf was not

Zahanum Zulkifli” The Role of Higher Institutions in Creating siqnificant. Muhammad AminTawfiq, “The Awqaf in Modern

Awareness on Challenges of MUIP in Communicating its Waqf Egypt”, The Islamic Quarterly , vol. XLII, No. 4, 1998, pp. 257-265.

Possession” International Journal of Nusantara Islam, Vol. 3, 10 Eric Lewis Beverley, “Property, Authority and Personal

No. 1, 2015, pp. 69-76, http://dx.doi.org/10.15575/ijni.v3i1.413; Law: Waqf in Colonial South Asia” South Asia Research,Vol. 31,

Diana Farid Saleh “The Waqf of Money as a Community 2011, pp. 155–82

Economic Empowerment Efforts”, International Journal of 11 Siti Alawiah and Ismail, Yusof “Strategic planning

Nusantara Islam, Vol. 4, No. 2, 2016, pp. 27-36, http://dx.doi. and accountability of waqf management in Malaysia” 4 th org/10.15575/ijni.v4i2.1068; Yedi Purwanto, Hari Utomo,

International conference on Inclusive Islamic Financial Sector Rasyida Noor, “Nâzhir Al-Waqf in Imam Syafi’i’s View and Development, 17th-18th Nov. 2015, International Islamic

its Implementation in Indonesia”, International Journal of University Islamabad, (Unpublished).

Nusantara Islam, Vol. 4, No. 2, 2016, pp. 49-62, http://dx.doi. 12 Adnan Trakic, “A Legal and Administrative Analysis

org/10.15575/ijni.v4i1.1202

of Inalienable Muslim Endowments (Awqâf) in Bosnia and 19 Lukman Raimi, Ashok Patel and Ismail Adelopo, Herzegovina” Islam and Civilisational Renewal, Vol. 3, No. 2,

“Corporate social responsibility, Waqf system and Zakat January 2012, pp. 337-354.

system as faith-based model for poverty reduction”, World 13 MesutIdriz, “Waqf Property and Its Administration in

Journal of Entrepreneurship, Management and Sustainable

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al-‘âmma). The achievement of these goals is change the perceptions of waqf recipients’ and determined by the management efficiency

donors’ groups.

and effectiveness. Consequently, the waqf For centuries, waqf has been became the management becomes the medium that bridges

subject of legal mechanisms study 26 . The findings the potential and realization of the waqf

show that waqf can be well managed when local implementation 20 . From another angle, waqf is

actors have contribution to the management 27 .

a “legal act” 21 . Waqf institutions determine the The future of this institution’s resurgence will obligation and prohibition of every factor that

depend on the role of local actors, equipped related to the waqf implementation, such as

with the ability to empower waqf. There are wâqif and nazir 22 .

many examples of the adaptation of modern Eventhough part of the waqf property has

management and regulatory frameworks on been abolished, nationalized, or mismanaged;

waqf 28 .

there is an emerging proof of the awakening Innovative approaches to waqf property, of attention, promotion, and rethinking of waqf

including state’s property, open wider access

for people 29 . There is a special rule in the sharia organizations, socio-political groups, and business

as a social institution 23 . A number of community

regarding derelict property (mawât), which is units seek to utilize the waqf model in financial

not owned or utilized by any person or group

of people, as in principle there should be no There is enormous international support for

collection and management 24 .

land being neglected. For example, the case

of land in Medina, Saudi Arabia, which allows the agenda Organization of Islamic Conference

the awakening of waqf 25 . It becomes part of

people to cultivate land that appeares neglected (QIC), the Islamic Development Bank (IDE), and

(mawât) 30 .

The Islamic Educational, Scientific and Cultural Organization (ISESCO). In line with the world’s

Waqf Institution in Indonesia

political change, some ideologies emerge and In Indonesia, the waqf institution has been embedded in Muslim societies’ traditions. In

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Aden Rosadi: The Development of Waqf Management Throught Waqf Act in Indonesia

historical proof of Islam arrival in Indonesia is will only be possible if the law is systematic, determined through archaeological finds, such

either vertically or horizontally, in Indonesian legal as graves or mosques ruins. Until now, the

system, enforced by a clean and lawful official, cemetery and the mosque became the object

and supported by a high legal awareness of those

legal proponent. Without those conditions, the The development of waqf institutions has

of waqf designation 31 .

act will never be upright, but instead leads to changed. It crossed through the era of the

sleeping ordonantie or even a dode regel (death sultanate, the colonial, the independence, and

law or death regulation).

the reformation. At the sultanate time, it was By using library research that use qualitative

data, this study will evaluate of the waqf period, there were various interpretations on

governed by local customs 32 . In the colonial

management and its coherences with laws and waqf regulations 33 . In the independence era, it

regulations. This study is not intended to test

a particular hypothesis or theory. However, vertical and horizontal relationships between

governed by various regulations 34 . However, the

it focuses more on searching new discoveries regulations are not questioned. At the reformation

about phenomena, as they relate directly to the era, when demands of regional and religious

social realities. This research uses descriptive identities grew stronger, the formation of Waqf

method with qualitative approach, also known regulation was done by the Government (Act

as naturalistic. This is because in general the

Number 41 of 2004). Based on philosophical 35 ,

collected data is qualitative. Sources of obtained

data, among others, are books that discuss has become one of living laws in Muslim society

socio-historical 36 , and juridical foundation 37 , waqf

about waqf. The normative aspect is based on in Indonesia.

Republic of Indonesia Act Number 41 of 2004 For Muslim communities in Indonesia, waqf

regarding waqf.

is align with the ideals of law, engrained in social Data analysis was performed through life, and legally confirmed. Although it has fulfilled

three steps activities, which are classification, the living law criteria, it does not necessarily mean

theorization, and interpretation. These steps it becomes an ”enforced law”. The enforcement

are normative descriptive. This is related to of the provisions contained in the “Waqf Act”,

the analized data’s characteristics, which is qualitative. Finally, it will arrive at the conclusion

31 Amelia Fauzia, Faith and the State: A History of Islamic Philanthropy in Indonesia ,( Brill, 2013), p. 62.

part, which is the stage of inference as well as

32 Widyawati, “The Politics of Islamic Philanthropy in

the answer to the question that was generated

the post-Soeharto Indonesia: A Study of the2004 Waqf Act”

based on the analysis and interpretation of the

Advances in Natural and Applied Sciences, Vol. 6, No. 8, 2012, pp. 1438-1444.

collected sources.

33 Uswatun Hasanah, “The Role of Indonesian Waqf Board in Promoting and Developing Waqf in Indonesia”, Indonesian

Waqf Regulation in Indonesia

Management & Accounting Research, Vol. 13, No.2, July 2014,

pp.1-27.

Waqf regulation in Indonesia exists since the

Sudirman, “Regulasi Wakaf di Indonesia Pasca Kemerdekaan Ditinjau dari Statute Approach” de Jure, Jurnal

enactment of Act Number 5 of 1960 regarding

Syariah dan Hukum, Vol. 6 No. 2, December 2014, pp. 190-203

the Basic Regulation of Agrarian Principles or

35 Yulia Qamariyanti, “The Contextual of Waqf in

also called as the Act of Agrarian Principles,

Philosophy of Islamic Law Based on the Qur’an and Hadith” LamLaj , Vol. 1 Issue 1, March 2016,, pp. 15-26. See Iggi H.

promulgated in the State Gazette Number 104 of

Achsien and Dien L. Purnamasari, “Islamic Crowd-funding as

1960. Article 49 of the Act states: (1) the right to

The Next Financial Innovation in Islamic Finance: Potential and Anticipated Regulation in Indonesia”, EJIF – European Journal

the property of religious and social bodies to the

of Islamic Finance , No 5, June, 2016, pp. 1-10.

extent that they are used for religious and social

36 Anouk Vandendael, Bas Hagoort, Jelle van Balen, &

activities are recognized and protected. These

Joppe Ter Meer, Stimulating Civil Society from the Perspective of an INGO: an Explorative Study of Indonesia, (Rotterdam

bodies are also guaranteed to obtain sufficient

School of Management: Erasmus University, 2013), pp. 3-39.

land for their buildings and businesses in the

Ahmad Atabik, “Strategi Pendayagunaan dan Pengelolaan Wakaf Tunai di Indonesia”, ZISWAF , Vol. 1, No. 2, December, 2014,

religious and social field, (2) for the worship

pp. 315-335.

and other sacred purposes, the property under 5|

MADANIA Vol. 22, No. 1, Juni 2018

direct state possession may be given with title in Islamic financial system, should be based on the right of use, (3) the waqf of ownership-rights

Islam fully, not just the name and label only. is protected and regulated under Government

It must reflect the philosophy, values, ethics Regulation.

and objectives of Islamic Shariah, 40 appointed In order to carry out Article 49 paragraph 3

by the Minister of Religious Affairs, as a place of the Act of Agrarian Principles, the Government

to entrust waqf money and entitled to issue Regulation Number 28 of 1977 regarding the

a Certificate of Endowments/Waqf (Sertifikat Rights of Ownership waqf was passed. After the

Wakaf Uang); to optimize Waqf management and birth of GR Number 28 of 1977 which regulates

development, an independent Indonesian Wakaf land waqf , the Presidential Instruction Number 1

Board (Badan Wakaf Indonesia) is established of 1991 regarding the Compilation of Islamic Law

and may inaugurate a representative at province (KHI) was enacted. It regulates waqf in more

and district level if deemed necessary; in the comprehensive manner, along with marriage

management and development of waqf property, and inheritance regulation. In this compilation,

nazir may cooperate with third parties and pledge the waqf object is not limited to the land with

to sharia insurance; disputes settlement over the rights of ownership title. 13 years from the

waqf property, shall use mediation, arbitration, KHI, the government legislated Act Number 41

or legal trial/litigation.

of 2004 regarding waqf. Besides bringing some The existence of general criminal provisions new ideas, this Act specifically discusses more

against waqf property and management violation detail about waqf and its management.

as follows:

The Act Number 41 of 2004 becomes

a. For those who deliberately pledge, grant,

a strategic breakthrough for the future sell, inherit, and other forms of rights development of waqf in Indonesia. So called

transference without permission will be because this Act covers important points, 38 convicted with imprisonment for a maximum

including: the law emphasizes the necessity of of 5 (five) years and /or a fine of not more waqf empowerment as a religious institution

than Rp 500.000.000,00 (five hundred million that has economic potential and benefits for

rupiah).

the worship importances and promotes public

b. For those who deliberately change the welfare; the law regulates broader implementation

designation of waqf property without of waqf, which are: the permissibility to waqf

permission will be convicted with movable-objects, whether in form of money,

imprisonment for a maximum of 4 (four) shares, securities, intellectual property, precious

years and /or a fine of a maximum of Rp. metals, and others. The arrangement of cash

400,000,000.00 (four hundred million rupiah). waqf turns ourt to be an enormous opportunity for the future development of waqf. 39

c. For those who deliberately use or take the

facilities resulted from waqf revenue beyond money is flexible, the empowerment plan will the prescribed amount, shall be convicted

Since

be more attainable; nazir (waqf manager or waqf with imprisonment for a maximum of 3 supervisor) as the backbone of waqf management

(three) years and/or a fine of not more than is divided into individual, organization, and legal

Rp 300,000,000.00 (three hundred million entity. This arrangement is intended for more

rupiah). 41

professional waqf management, and to avoid the occurrence of violation on the objects of waqf;

the role of selected sharia financial institutions, 40 Mohamad Zaid Mohd Zin, Ahamad Asmadi Sakat, Nurul

Khairiah Khalid Nurfahiratul Azlina Ahmad, Mohd Roslan Mohd Nor, Azri Bhari, Saurdi Ishak and Mohd Arip Kasmo, “Products of

38 Thobib Al-Asyhar, “Substansi Undang-Undang Nomor 41 Islamic Finance: A Shariah Compliance Advancement” Australian Tahun 2004 tentang Wakaf”, Paper in Workshop of Pemberdayaan

Journal of Basic and Applied Sciences, Vol. 5, (12), 2011, pp. 479-484. Wakaf di Jawa Barat ”, 2006. p. 3.

41 Mohamad Zaid Mohd Zin, Ahamad Asmadi Sakat, Nurul 39 Ibrahim, Amir &Masron., “Cash Waqf: An Innovative

Khairiah Khalid Nurfahiratul Azlina Ahmad, Mohd Roslan Mohd Instrument for Economic Development”, International Review

Nor, Azri Bhari, Saurdi Ishak and Mohd Arip Kasmo, “Products of Social Sciences and Humanities, Vol. 6, No. 1, 2013, pp. 1-7

of Islamic ...p. 479-584.

Aden Rosadi: The Development of Waqf Management Throught Waqf Act in Indonesia

This law, as outlined in the Act explanation, must be recorded and written in the deed of is based on two reasons. First, the objective of

waqf pledge, registered, and announced which the Unitary State of the Republic of Indonesia

its implementation is performed in accordance as mandated in the Preamble of the 1945

with the procedures regulated in the waqf Constitution of the Republic of Indonesia is

regulations. This law does not separate between

the waqf-ahlî (dhurrî) and Waqf khayrî. Waqf-ahlî these objectives, it is necessary to explore and

to promote the general welfare. 42 To achieve

(dhurrî) is applied when the waqf management develop the potentials that exist within religious

and utilization is limited to the wâqif’s heirs, institutions that have economic benefits.

while waqf-khayrî is intended for public benefit, One of the strategic steps to improve

in accordance to the purpose and function of general welfare is to increase the role of waqf

waqf; second, In the past, people understood that as a religious institution that not only aims to

waqf is limited on immovable objects such as land provide various religious and social facilities, but

and building. Based on the Act, wâqif can also also has economic power potential to promote

endow their movable wealth, whether tangible

or intangible, such as money, precious metals, should be developed in accordance with sharia

the general welfare. 43 Thus, its utilization

securities, vehicles, intellectual property rights, principles.

rights to lease, and other movable objects; third, Secondly, the practice of waqf that occurs

in the case the movable objects is money, wâqif may endows through Sharia Financial Institutions.

in society has not been fully run orderly and efficient. Sharia Financial Institution is an Indonesian legal 44

Many cases show how waqf property is entity established based on Islamic finance laws not properly preserved, abandoned, or unlawfully and regulations, for example a sharia bank.

handed to third parties. Such circumstances are not solely occure due to the negligence or

The waqf of movable object in form of money through a Sharia Financial Institution is intended

inability of nazir in managing the waqf property but also because of people’s ignorance or to facilitate wâqif to donate their money; forth,

unawareness of waqf status, where it should waqf property is not solely proposed for religious and social facilities, but also directed to promote

be protected for the purpose of general welfare, in accordance with the purpose, function, and

general welfare by reaching the economic potential and benefits of waqf property. 45 It

allotment of waqf. allows the waqf properties management to Based on the above considerations and to

enter of economic activities in a broad sense, meet legal demand in the framework of national

as long the activities use sharia economic and law development, the “Act on Wakaf” was management principles as foundation. created. Basically, the previous waqf provisions, To secure the waqf property from third

both from sharia and national regulations, are re-enacted in this Act. In addition, there are some

parties interference that harming waqf purposes, it is necessary to improve the nazir

new issues as follows: first, to create the order professional capacity. The Act also regulates the of law and waqf administration to protect waqf

property, this Act affirms that waqf legal acts establishment of Indonesian Wakaf Board (BWI [BadanWakaf Indonesia]) that may assemble local representation as needed. The Board is an

42 Sukasih, Kamaruzaman Yusoff and Mansoureh Ebrahimi”

independent institution that performs duties in

Humanism Values in the 1945 Constitution of Republic of Indonesia”, The Social Sciences , Vol. 11,No. 5, 2016, pp. 540-546.

waqf matters, gives guidance to nazir, conducts

43 Farhana Mohamad Suhaimi and Asmak Ab Rahman,

the management and development of national

“The role of share waqf in the socio-economic development of the Muslim community The Malaysian experience”,

and international level waqf properties, gives

Humanomics, Vol. 30, No. 3, 2014, pp. 227-254, http://dx.doi. org/10.1108/H-12-2012-0025

44 Hasyeilla Abd Mutalib & Selamah Maamor, “Utilization 45 Mahata, Jaaffara & Rasool, “Potential of Micro-Waqf as of Waqf Property: Analyzing an Institutional Mutawalli

an Inclusive Strategy for Development of a Nation”, International Challenges in Management Practices”, International Journal of

Accounting and Business Conference 2015 , IABC 2015, Procedia Economics and Financial Issues , Vol. 6 No. S7, 2016, pp. 36-41.

Economics and Finance, Vol.31, 2015,pp. 294 – 302.

MADANIA Vol. 22, No. 1, Juni 2018

approval on any proposed alteration of waqf

a. adult;

property status and designation, and provides

b. muslim;

advice and consideration to the government

c. sensible;

in formulating policies that related to waqf. 46

d. not hindered to perform legal action. The provisions in point one above, although

claimed as new, are basically similar to Article 5

Article 21

of the Government Regulation of the Republic (1) The waqf pledge is stated in the deed of of Indonesia Number 28 of 1977 regarding the

waqf pledge.

Rights of Ownership waqf that stipulates: (2) The deed of waqf pledge as referred in (1) The party who endows (gives waqf of) his/

paragraph (1) shall at least contain: her land must pledge his/her will clearly

a. Name and identity of wâqif; and firmly to the nazir before the Official

b. Name and identity of nazir; of Waqf Pledge Deed as referred to Article

c. Data and information of waqf property;

9 clause (2) whom then record it on Waqf Pledge Deed, witnessed by at least 2 (two)

d. Allotment of waqf property; witnesses.

e. Waqf duration.

(2) Under certain circumstances, any deviation (3) Further provisions concerning the deed of upon the provisions referred to in article

waqf pledge as referred in paragraph (2) shall (1) may be applied under approval of the

be regulated by Government Regulation. Minister of Religious Affairs.

The waqf pledge is stipulated in articles 17 - 21

The Substance of Act Number 41 of 2004

as follows:

a. The systematic of Act Number 41 of 2004

(1) Wakaf pledge was performed by wâqif to The Act Number 41 of 2004 on Waqf is nazir in front of the Official of Waqf Pledge

recorded in the Republic of Indonesia State Deed (PPAIW [Pejabat Pembuat Akta Ikrar

Gazette Number 159 and Supplement to the Wakaf ]), witnessed by 2 (two) witnesses.

State Gazette Number 4459 of 2004, came into (2) The endowment (waqf) pledge as referred

force on 27 October 2004. The Systematic of the Act is as follows:

to in paragraph (1) shall be declared verbally and /or written and stipulated in the deed

CHAPTER I: General Provisions (1 article: 1) of waqf pledge by Official of Waqf Pledge

CHAPTER II: Principles of Waqf Deed (PPAIW).

A. General (2 articles: 2-3)

B. Purposes and Functions of Waqf In the case of wâqif are unable to express waqf

Article 18

(2 articles: 4-5)

C. Elements of Waqf (1 article: 6) pledge recital for reasons justified by law, wâqif

pledge orally or unable to present in the waqf

D. (2 articles: 7-9)

may designate his proxy by a power of attorney,

E. Nazir (6 articles: 9-14)

and reinforced by two witnesses.

F. Waqf Property (2 articles: 15-16)

G. Pledge of Waqf (5 articles: 17- 21)

Article 19

H. Allotment of Waqf Property (2 articles: 22-23) their attorney submits a letter and/or ownership

To be able to perform waqf pledge, wâqif or

I. Endowment (Waqf) through Testament proof of waqf property to PPAIW.

(4 articles: 24-27) J. Waqfon movable objects in form of money/

Article 20

cash (4 articles: 28-31)

Witnesses in the waqf pledge must meet the CHAPTER III: Registration and the Announcement following requirements:

of Waqf Property (8 articles: 32-39)

CHAPTER IV: Changes in the Status of Waqf |8

46 Explanation of Act No. 41 of 2004

Aden Rosadi: The Development of Waqf Management Throught Waqf Act in Indonesia

Property (2 articles: 40-41) property owned by the organization or legal CHAPTER V: Management and Development of

entity in accordance with their respective article Waq f Property (5 articles: 42-46)

of association (article 8, paragraphs 2 and 3). CHAPTER VI: Indonesian Waqf Board

Parties who receive waqf property from wâqif

A. Position and Duties (4 articles: 47-50) to be managed and developed in accordance

B. Organization (2 articles: 51-52) with its designation are called nazir. Nazir may

C. Member (2 articles: 53-54) be an individual, an organization, or a legal entity (art. 9). Individual nazir must be an Indonesian

D. Appointment and Dismissal 4 articles: 55-58) citizen, Muslim, adult, trustworthy, able both

E. Financing (1 article: 59) physically and spiritually, and not hindered to

F. Implementation Conditions (1 article: 60)

perform legal action.

G. Accountability (1 article: 61) Nazir organization consist of managers who

CHAPTER VII: Dispute Resolution (1 article: 62) meet meets the requirements of the individual CHAPTER VIII: Development and Supervision

nazir above. The organization engages in social, (4 articles: 63-66)

educational, civic, and/or islamic activities (article CHAPTER IX: Penal Provisions and Administrative

10, paragraph 2). Likewise, the legal body entity Sanctions

consists of legal body executives who meets the

A. Penal Provisions (1 article: 67) requirements of an individual nazir, and the legal entity shall be established in accordance with

B. Administrative Sanctions (1 article: 68) Indonesian laws and regulations, and engages

CHAPTER X: Transference Provisions in social, educational, civic and Islamic activities (2 articles: 69-70)

(article 10, paragraph 3). The task of nazir covers: CHAPTER XI: Closing Provisions (1 article: 7)

a. administering waqf property;

b. manage and develop the waqf property in

b. The Concept of Waqf and Its Elements

accordance with the purpose, function, fund According to Act Number 41 of 2004, waqf

allocation;

is a wâqif legal act to separate and /or bestow

c. supervise and protect the properties of waqf; some of their property to be utilized forever

and

or for a certain period for the purposes of

d. reports the completion of duties to the worship and /or general welfare based on sharia

Indonesian Wakaf Board (BWI) (article 11). (article 1, paragraph 1).The elements of waqf in this Act are 5 (five), namely: (1) wâqif, (2) To perform the above duties, nazir shall be

entitled to receive rewards from the net return nazir , (3) waqff property, (4) pledge of waqf, (5) Allotment of waqf property, and (6) period

on the management and development of waqf property 10% (ten percent) in maximum, and shall

of waqf (article 6).

be entitled to obtain training and education from Wâqif is the party who donates their property

the Minister and the Indonesian Wakaf Board (article 1, paragraph 2). Wâqif may be individuals,

(articles 11 and 12). In the meantime, to obtain organizations, or legal entities (art. 7). Individual

the above education, nazir must be registered wâqif must meet the following requirements: in the Minister and the Indonesian Wakaf Board

a. Adult,

(BWI).

b. Sensible, Waqf properties in this Act include immovable

c. Not hindered to perform legal action, and objects and movable objects. Immovable objects

d. The rightful owner of waqf property (article

are:

a. rights upon land, based on the existing While wâqif organizations or legal entities

8, paragraph 1).

regulations, both registered and non- may perform waqf if they meet the provisions of

registered land;

the organization or legal entity to denominate

b. buildings or parts of buildings standing on 9|

MADANIA Vol. 22, No. 1, Juni 2018

the land as referred in letter (a); of Certificate of Waqf Money (article 30). Waqf

c. plants and other objects related to the land; property that has been bestowed are prohibited

d. ownership of a flats property in accordance to be used as security, confiscation, donation, sale, inheritance, exchanged or transferred in

with the existing laws and regulations; and other form of rights transference 47 .

e. other immovable property in accordance with the provisions of sharia and existing

c. Management and Development of Waqf

laws and regulations.

Property

Movable objects are property that can not be depleted from consumption, namely:

In principle, the management and development of waqf property must correspond

money, precious metals, securities, vehicles, to the purpose, function and designation 48 . In the

intellectual property rights, lease rights, and other movable objects in accordance with the process, nazir is prohibited to make changes the

provisions of sharia and existing legislation waqf property designation 49 except has written

(Article 16, paragraphs1-3). permissions from the Indonesian Wakaf Board (BWI). Related to this, nazir may be dismissed

The next element of waqf is the vow of

or replaced if:

waqf. The Pledge is recited by wâqif to nazir in front of PPAIW witnessed by 2 (two) witnesses.

a. deceased, for the individual nazir; The pledge may be verbally or in writing, and

b. dissolved or being dissolved, for the transcribed in the deed of waqf pledge, or if

organization or legal entity nazir; waqif is unable to attend, may designate its

c. upon their own request; proxy by a power of attorney reinforced by 2

d. does not fulfill their duties as nazir and /or (two) witnesses. Waqf pledge can be performed

violates waqf management and development if wâqif can submit a letter or ownership proof

regulations;

of waqf property to PPAIW (chapters 17-19).

e. Sentenced to a criminal by a court that To achieve the purpose and function of waqf,

has had permanent legal force (article 45, waqf property is designated for:

paragraph 1).

a. worshop facilities and activities; The dismissal and replacement of nazir is

b. education and health facilities and activities; executed by the Indonesian Wakaf Board (article

c. support to the poor, abandoned children,

45, paragraph 2).

orphans, and scholarships;

d. development and improvement of the

d. Guidance and supervision

people’s economy; Guidance and supervision upon the

e. other general welfare improvement that are implementation of waqf is performed by the not contrary to sharia, laws and regulations

Minister by involving the Indonesian Wakaf Board (article 22).

(BWI) and by taking into account the suggestions Endowments of movable objects in the

and considerations of the Indonesian Council form of money can be performed by wâqif

through sharia financial institutions appointed

47 Siti Mariam Malinumbay S. Salasal, The Concept of Land

by the Minister. Waqf money is acted with a

Ownership: Islamic Perspective , Buletin Geoinformasi, (Penerbitan Akademik Fakulti Kejuruteraan & Sains Geoinformasi,), Jld. 2 No.2,

written statement of wills, and then issued

ms. 285 -304, December 1998

in form of waqf money certificates, issued by 48 Nor Asiah Mohamad, Sharifah Zubaidah Syed Abdul Islamic financial institutions to wâqif and nazir Kader & Zuraidah Ali, “Waqf Lands and Challenges from the

Legal Perspectives in Malaysia”, IIUM-Toyo Joint Symposium

as a proof of waqf property bestowal (articles

2012, Sustainable Built Environment: lesson learned from

28-29). Islamic financial institutions on behalf of

Malaysia and Japan.

49 Hussein Elasrag, Towards a new role of the institution of

nazir register the waqf money to the Minister at

waqf, Online at https://mpra.ub.unimuenchen.de/80513/ MPRA

least 7 (seven) working days since the issuance

Paper No. 80513, posted 1 August 2017 05:31 UTC.

Aden Rosadi: The Development of Waqf Management Throught Waqf Act in Indonesia

of Ulama (MUI) (article 63 verses 1-3). In the of the entire Muslims society in Indonesia. 56 framework of the aforementioned guidance, the

Thirdly , the juridical foundation. This Minister and BWI may cooperate with public

foundation has a solid normative approach, organizations, experts, international bodies, and

based on the Act Number 10 of 2004 regarding other deemed necessary parties, including the

the Formation of Laws and Regulations. In use of public accountants (articles 64 and 65).

real terms, the 1945 Constitution becomes the main normative-juridical reference in arranging

The Philosophical, Socio-historical, and

legislation 57 .

Juridical Foundation

The birth of Republic of Indonesia Act

Discussion

Number 41 of 2004 regarding waqf is one of Sharia is a sacred law which originates from qualitative progress of waqf management in

the will of Allah. 58 In the legal study, sharia is a Indonesia 50 . Its enactment is based on various

natural law which remains constant and does not foundations. As an act, at least it should be

change. 59 However, in the case of waqf, shariah

does not define waqf strictly and in detailed juridical 54 foundation.

created on 51 philosophical 52 , sociological 53 , and

way. 60 In this case, the legal provision of waqf is Firstly, the philosophical foundation. This

obtained through ushûl al-fiqh, 61 with a deductive foundation is more focused on the ideals of law

reasoning pattern analogy. Furthermore, the as set forth in the preamble. The ideals of law

provision on waqf mechanism is based on human in question are law enforcement and justice as

preference for public good, such as istihsân, 62 reflected in the constitution of the Republic of

mashlahah mursalah, 63 ‘urf, 64 and so forth. Legal Indonesia 55 .

resources are focused more on human thinking Secondly, the socio-historical foundation. This

and behavior. In this sense, Muslims recognize foundation is more focused on dynamics aspects

the legal postivism.

and interaction process of Muslim life which The power of sharia as a qânûn depends inherent with the implementation of Islamic

on the authority holder. The validity of a law is law in Indonesia. Nevertheless, sociologically

naturally determined by the holder of political the act is not fully reflecting the aspirations

56 Muhammad Ishom, Siraj Sait, “The Relevance of Islamic Land Law for Policy and Project Design” Conference on

Challenges for Land Policy and Administration , Washington DC., 50 Hidayatul Ihsan, Shahul Hameed Hj. Mohamed

the World Bank. 2008

Ibrahim, “WAQF accounting and management in Indonesian 57 Muhammad Ishom, Suryani and YunalIsra, “Wakaf WAQF institutions: The cases of two WAQF foundations”