Construction of Waqf Istibdal Regulations for Empowering Non Productive Waqf in Indonesia
Riau Annual Meeting on Law and Social Sciences (RAMLAS 2019) Construction of Waqf Istibdal Regulations for Empowering Non Product...
Riau Annual Meeting on Law
and Social Sciences (RAMLAS 2019)
Faculty
of Islamic Science Universitas Trunojoyo Bangkalan, Indonesia
Department
of Sharia Economic STAI Miftahul Ulum Pamekasan, Indonesia ridanmuhtadi@gmail.com
Abstract—The purpose of this study
is to answer the problem of how
istibdal waqf regulatory system in Indonesia and how is the model of the waqf feasibility management for
economic empowerment. This research uses descriptive
qualitative analysis method, which is then analysed using the provisions
of Islamic law and provides a model
for the management of waqf
empowerment. Data Collection Method with
In-depth Interview (In-Depth-Interview), in this study, the authors used
in-depth interview guidelines that were made to interview management and employees of waqf institutions ‘X’ in Surabaya and secondary data sources were obtained by
the writer through various books, magazines, scientific journals, and
legislation related to the object being
studied and so on which explained
the application of the endowments.
The results of the study concluded that the application of the waqf land at the waqf institution ‘X’ in Surabaya was in accordance with
the pillars and conditions of waqf.
The eligibility of the waqf land is
in accordance with Islamic law and Law Number
41 of 2004 concerning representation
which states that the transfer of waqf land is permissible if it is for
public interest.
Keywords:
regulation construction, istibdal waqf, economic empowerment
I. INTRODUCTION
Imam Muslim narrated from Abu Hurairah who stated that
the Prophet Muhammad. said: "From Abi Hurairah: That Rasulullah SAW said:
when someone dies, then all deeds are cut off except for three things: namely
sadaqah jāriyah, or useful knowledge or pious children who pray for him." (HR. Imam Muslim no. 1631) [1]. The
opinion of some scholars Sadaqah Jāriyah in the above hadith is intended as
waqf [2]. The practice of waqf includes a very large reward according to
Islamic teachings. All human deeds will not be rewarded; the reward is when the
Adam died. The reward of waqf will still flow and will still be accepted by
waqif even though he has passed away. Waqf is one of the contracts of worship,
please
help sustainably, the goal is
tabarru'āt as stipulated by the
Shari'a, the application of waqf
through a long process between nadzir and waqif sometimes
experiences obstacles in applying waqf to achieve the goal of tabarru'āt [3].
Policy in regulating waqf in Indonesia in 1960, has
issued Law No. 5 of 1960, but the law only provides guidance on the basic legal
framework of waqf in the form of land [4].
Revitalizing efforts to raise the potential for waqf,
the Indonesian government and the Parliament passed Law No.41 of 2004, this
fact implies that waqf has great potential and has an impact on reducing
poverty that occurs [5].
Utilization and illustration of waqf funds in 2016, 75% of
waqf assets are still used by
mosques or mosque, 14% for education, 5% for funerals and 6% for other uses, basically the use of waqf assets is still focused on the less productive sectors
[6]. Indonesia has widely used waqf
for the purpose of mosques, pesantren and funeral facilities. However, other potentials of waqf have not been fully used yet, because
the majority of waqf land is land that is used as a non-profit social facility.
According to data collected
by the Indonesian Ministry of
Religion, the number of waqf land in
Indonesia reached 4.359.443.170.00
square meters (four billion three
hundred fifty-nine million four hundred
forty-three thousand one hundred and thirty point square meters) or 287.160 hectares (two hundred
eighty thousand seven hundred
one hundred sixty hectare) spread over 435.768 locations throughout Indonesia
[7].
Such a large
amount of land must be productive for the sake of welfare
and not eliminate the obligation to
religion [8]. This abundant
endowment property is an opportunity and challenge for the Muslim Ummah to
carry out the function of waqf
maximally equipped with enormous
human resources, with the capital of the Muslim Ummah being the majority in
Copyright © 2020 The Authors. Published by Atlantis
Press SARL.
Indonesia, it is expected that with the existence of waqf property can
prosper the Muslim Ummah in Indonesia and implement it accordingly the true
teachings of Waqf.
The Indonesian Waqf has the potential to play a more
important role in the development of this country, increasing prosperity and
helping the government improve the welfare of the Indonesian people. The government
has begun to make important improvements in
this sector, but there is still much work to be done to remove obstacles that
prevent the growth of waqf in order
to carry out its true role in improving the welfare of the Indonesian people [6].
Research that discusses waqf with the title
"Substitution of Waqf Properties (Istibdal) in Malaysia: Statutory
Provisions and Implementations, Substitution of Waqf Properties (Istibdal) in
Malaysia: Statutory Provisions and Implementations"
was written by S. Hisyam and Hazel Adria Jasiran researching asset management
waqf through istibdal methods can also assist the socio-economic development of
Muslim communities in Malaysia [9], and another study entitled "Waqf, Its
Substitution (Istibdāl), and Selected Resolutions of Islamic Fiqh Academy of
India: A Maqāṣid al- Sharī'ah Perspective" written by Mohammed Faris Ali al- Fijawi and Maulana
Akbar Shah researched the replacement of waqf land assets recognized as
Istibdāl, and the resolution chosen by the Indian Fiqh Academy of Islam under the objective of Sharqa waqf and Tabarru'āt [3].
The principle of waqf in Islamic contracts plays a role
in the economic development of the Muslim Ummah,
but there are some cases of waqf property that cannot be developed, due to some unavoidable reasons, requires a
concept of adaptation to the needs of the community for the continuation of the Waqf concept as an important investment
instrument in improving management
waqf [9]. Then this study discusses the management of Istibdal waqf conducted
through waqf institutions registered at BWI. While
previous research focused on the concept of application in
accordance with the Malaysian Religious
Council Law along with the opinion of Indian Islamic Fiqh, this study tries to
discuss the concept of Istibdal waqf, identification, challenges, and
application of Istibdal waqf through waqf institution, as well as discussing
the empowering impact that results from applying waqf Istibdal, considering
that in the official website of the BWI there is no waqf institution that
applies the istibdal concept, or nadzir to further produce waqf assets.
II. RESEARCH METHOD
The area of this research was conducted at a waqf
institution ‘X’ in Surabaya. This research approach uses a descriptive
qualitative analytic approach that describes and describes data in the field to
obtain a holistic understanding of the essence of the data in terms of Islamic
economics. Primary data sources in this study were sourced from interviews with
waqf management and waqf staff employees who directly provided information on
the application of Istibdal waqf in the institution. This secondary data source
was obtained by the writer through various books, magazines, scientific
journals, and legislation related to the object being studied and so on which
explained the application of the endowments.
Data Collection Method
with In-depth Interview
(In-Depth- Interview), in this study, the authors used in-depth
interview guidelines that were made to interview management and employees of waqf institutions. The documentation method
is a document used in the
form of diaries, newspapers, transcripts, books, magazines, minutes of
meetings, case notes in social work,
and other documents.
III. RESULTS AND DISCUSSION
A.
The concept of Fiqh on
Istibdal Waqf
The word "Waqf" is derived from the English
word "Wact" in Arabic "Waqafa", meaning
"to hold" or "stop" or "stay still". The word "Waqafa-Yaqifu-Waqfa" has the same
meaning with "Habasa-Yahbisu-Tahbisan" in Shari'a, waqf means to hold the subject and to donate fruit or to proclaim
its benefits in the path of Allah [10]. Istibdal comes from
the word Istabdala, yastabdilu, istibdalan which gives the
purpose of swapping [11].
Another description is that a waqf property such as
land is exchanged or redeemed for other land or houses to be exchanged and used as waqf. Ibdal is
selling waqf goods
to buy other goods instead.
Istibdal is making other goods as a substitute
for the original
waqf goods that have been sold [12].
Fiqh of five madzhab of thought argues that the
legitimacy of paraphrasing does not require the existence of qabūl (acceptance) and this is also in
the opinion of scholars. At the time of the representation process the presence
of a witness is also not included as a pillar and the legal requirements for the representation. This means that when
the process of accounting is
considered valid, however, there must be 4 pillars of waqf which are fulfilled
in the process of representation, including: wakif (the person who is the owner of the assets), mauqūf bih (goods that are represented), mauqūf alaih (nazhir or those who receive waqf) and sighāt [12].
Waqf fiqh, indeed many opinions of different scholars have arisen, partly because most of the
arguments used by the Ulema fatwas
are "ijtihādiyah", so that the different propositions used will
produce different ijtihad products. Some
of them forbid it absolutely, some forbid it except in certain circumstances
which rarely occur, and some others allow it because there are conditions from the previous
waqif or there is
a reason to increase the productivity of waqf assets
[12].
The Hanbali madzhab
and the Hanafi madzhab more elastic
and tend to facilitate this practice permit while still paying attention to aspects of benefit [13]. The istibdal
conditions are: first, get a wakif
permit on the condition of the waqf property, if the wakif has said to make the
land available. The conditions of
the said wakif are crucial in the exchange of the waqf, both the type of waqf
goods, or the place. Second, because of the dharūrah situation or because of
mashlahah, such as waqf land that cannot be planted, and cannot produce any
results and benefits so that the
"mauqūf 'alaih" does not receive the
benefits of the results, or the results are shrinking insufficient for the costs of care and
management, then the government / judge may exchange it for land or other
endowments as a substitute, even if there is a condition or no condition from
wakif [13].
The four schools of thought, besides the differences,
there are similarities, among others: a) Wherever the endowments must be
preserved and their existence protected. b) Exchange or sale of waqf goods is only permitted if there is an emergency
reason or to maintain its benefits. c) Exchange or al-Istibdal or sale
of waqf goods must be done by the government, at least with the permission of
the government. d) The results of exchange or sale of waqf goods must be
translated into substitute waqf goods [13].
B.
Istibdal Waqf Regulation
Law No. 41/2004
Regarding this Waqf,
the issue of Istibdal
is included in the "exclusion law" (al-hukmu al-istitsna'i) as
referred to in Articles 40 and 41 paragraph (1). In Article 40 it is stated,
that waqf property that has been represented is prohibited: 1) As a guarantee.
2) Confiscated. 3) Awarded. 4) For sale. 5) Inherited. 6) Exchange, or 7)
Transfer in the form of transfer of
other rights [5].
Article 41
states:
· Provisions
as referred to in Article 40 letter f are excluded if the waqf property which
has been represented is used for public purposes in accordance with the general
spatial plan (RUTR) based on the provisions
of the applicable laws and regulations and does
not conflict with the Shariah.
· Implementation
of the provisions referred to in paragraph (1) can only be done after obtaining
written permission from the Minister
with the approval of the Indonesian
Waqf Board 3. Waqf property that has been changed due to the exclusion provisions as referred to in
paragraph (1) must be exchanged for assets whose benefits and exchange rates
are at least the same as the initial
waqf property.
· Provisions
regarding changes in the status of waqf property
as referred to in paragraph (1), paragraph (2), and paragraph (3) shall be
further regulated by Government Regulation (UUD,
article 40).
The provisions listed starting in Articles 40 and 41
above, shows the attitude of caution in the exchange of waqf, and still
emphasizes efforts to maintain the permanence of waqf as long as the conditions are still normal. But on the other hand has also opened the door of Istibdal even
though it is not tasahūl (easing the problem).
C.
Istibdal Waqf Empowerment Mechanism
The mechanism that was carried out for the Istibdal
was: Nazhir submitted a written application to the Minister through the Head of
Office by enclosing, Waqf property documents including the Waqf Pledge Deed,
substitute deed for Waqf Pledge Deed, Waqf certificate, certificate of assets,
or other valid proof of ownership of property in accordance with statutory
provisions.
Documents for the exchange of assets in the form of
certificates or other proof of ownership of legal assets in accordance with
statutory provisions. The results of the valuation of Waqf property to be
exchanged and exchanged by
the Appraiser or
Public Appraiser and Nazhir resident identification card.
The Determination Team
submits a recommendation to exchange Waqf property within 5 (five) working days
after the Appraiser or Public
Appraiser submits the results of the appraisal to the Head of the Office and
copies it to the Determination Team;
first, the Head of the Office determines and sends the results of the valuation
of the exchange of Waqf assets to the Head of the Regional Office and to the
provincial BWl no later
than 4 (four) working days; second, the provincial
BWI gives approval to the Head of Regional Office no later than 5 (five)
working days from receiving the results of the
exchange of Waqf property valuation from the Head of Office; and third, the Head of the
Regional Office on behalf of the Minister
issues written permission to exchange Waqf assets no later than 10 (ten)
working days after receiving approval from the provincial BWI.
D.
Istibdal Waqf Feasibility Management
Management of Waqf in using Istibdal cases that occur
in waqf institutions ‘X’ in Surabaya is a wish of waqif and waqf managers to
carry out the endowment objectives with the non- functioning of the waqf land,
then at the beginning of the waqf agreement the covenant carefully considers
and offers if the land is exchanged with others considering the need for
maintenance and expense, based on mutual agreement in converting waqf land as
expected.
Determination of
the legal basis for doing Istibdal for employees and Management of Waqf does
not refer to any part of any school
of thought. The management of waqf management
takes a policy and focuses on the maslahah and mubazhīr which allow the
existence of waqf Istibdal. The concept of Maslahah is used by the management
of waqf that the waqf can provide benefits for the needy such as orphans, the
poor and needy people, while the concept of mubazhīr in question is that waqf
land that does not contribute positively to the community while in need of care
and expenses. This attitude actually
has similarities with the opinion of the Hanafi school of thought which states
that exchange can be done by anyone as long as it can provide
benefits, either onsite by waqif
itself or other people without looking at the type of goods represented, in the
form of land that is inhabited, uninhabited, movable or immovable.
In solving problems related to Islamic law, researchers
also do not directly take one opinion that is considered the most correct, but
also associate that opinion with Islamic law. If it refers to the purpose of
the waqif which is for the benefit and development of Islamic symbol. So
according to Islamic law also that exchange is not contrary to Islamic law.
Especially when following the opinion of the scholars, including: Imam Hanafi
and supported by legislation namely PP No. 28 of 1977 article 11 and Regulation
of the Minister of Religion No.1 of 1978 article 13 paragraph 3 which contains,
that changes in the status of waqf land can be permitted if given a substitute
of at least the same value and balance with its use in accordance with the Waqf
Pledge.
Therefore, the waqf land which is considered to have no
benefit so that the waqf land is compared to land that has
benefits. Then the occupied land is converted to land that can be used for
educational purposes. In accordance with the waqf agreement, Nazir and the
management of the waqf institution have been purchased and become certified as
waqf land.
The Waqf Institution 'X' has a different principle in
converting its waqf assets not by looking
at the equivalent waqf property, but managing waqf and nazir
attaches importance to the benefit of the waqf property which can provide
greater benefits.
IV. CONCLUSION
Based on the results of this study, it can be concluded
that the application of the Istibdal concept of the waqf land happened to
install the waqf land because it was feared that the state of the land with increasing years would be increasingly
damaged and could not take its benefits for the benefit of the community. Management Eligibility of
waqf Istibdal land waqf, harmony and conditions must be met. Starting from
waqif, mauquf alaih, mauquf bih and sighat. The istibdal waqf management is more inclined towards
the Hanafiyah mazhab of worship which allows Istibdal, and the management of
collection, the management of the waqf property has carried out the management
functions: planning, organizing, implementing,
controlling and controlling. Based on the above conclusions, the authors
provide some relevant advice to the problem
as follows: Should the management of waqf institutions
to pay more attention to the completeness of documents and administration, and
the public must understand and learn about the growing representation in the
community regarding waqf property, and understand the procedures for istibdal
waqf land in accordance with Law No. 41 of 2004
concerning
representation which allows the exchange and replacement of waqf land.
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