Juridical Analysis on Waqf Land Certification based on Law Number

41 of 2004 on Waqf

Afrita

and Zaidar

Faculty of Law, Universitas Sumatera Utara, Jalan Universitas Nomor 4 Kampus USU, Medan, Indonesia

Keywords: Waqf Land, Registration.

Abstract: The object in this study is how law provides legal certainty on properties that has been put as waqf such as

owned land. Waqf land that hasn’t been certified will surely cause problems in the future, this is because the

status of waqf land itself has yet to have legal certainty. Numerous waqf land ended up in the hands of other

parties because the uncertainty of the waqf land status itself. In the end, waqf land which is expected to

boost the economy of the people cannot be materialized, it’s because there has been lack of awareness from

someone who manages waqf to certify the ownership of waqf land itself. The goal of this research is to

identify the role of Indonesian Waqf Board on the development of waqf land, to identify the problems that

causes plenty of waqf land that are yet to be certified, also to identify the raise in numbers of waqf land

being certified. This research is also regarded to be important, keeping in mind that there are still numerous

problems that occurs because of legal uncertainty towards waqf land that may cause dispute in the future,

between waqf, nazhir, or even between heirs.

1 INTRODUCTION

Waqf land is considered as a social worship and one

of the key elements in the teachings of the Muslim

faith which has strong relations to agrarian law, this

means that it is considered as a set of regulations

that regulates how to use and exploit earth for the

benefits of the whole society.

With regard to the importance of the waqf land,

therefore Law No. 5 Of 1960 On Basic Regulations

On Agrarian Principles set a special regulation as

was mentioned in Article 49 section (3) stating that:

“Waqf land ownership is protected and regulated on

Government Ordinance. In principle, Article 49

section (3) is an explanation of the social function of

rights on land based on Islamic Law. The

importance of waqf also mentioned in Article 4 and

5 of Law No. 41 Of 2004 On Waqf, stated that:

“Waqf is intended to utilize the wealth of waqf

suitable to its function which is to materialize

potential and economic benefits of the wealth of

waqf for religious purposes and to drive forward

general welfare”.

To obtain legal certainty and to prevent waqf

land from various problems and disputes, it is

needed to certify waqf land. Especially in the City of

Medan, based on the Management of Waqf Land

Data Recapitulation in Medan’s Ministry of

Religious Affairs 2015 mentioned that the amount of

waqf land that has been registered has reach 1242

lands. From that sum, 741 lands have been certified,

and the rest has yet to be certified (501 lands).

(Syafruddin Syam, 2017) Not to mention the waqf

land that has yet to be put into the Ministry of

Religious Affairs’ database. This predicament shows

that the status of waqf land is in a concerning state.

This condition sometimes can lead to risks of

conflict most likely for heirs of the people who have

marked their lands as a waqf land (Syam, 2015).

The main thing that causes problems on waqf

land is that in reality waqf lands are mostly done

verbally, not followed up by making a pledge of

waqf certificate and its registration. With regard to

these, waqf land does not have a strong legal basis,

and in the future if so happens a conflict between the

ownership of waqf land, it will be difficult to find a

solution on proving their claim.

As mentioned above, the author feels that it is

vital to conduct a deeper analysis on the certification

of waqf land in Medan to provide education for all

layers of society - mainly on Muslims to mark their

lands as waqf so that it would create awareness and

legal certainty on waqf.

Afrita, . and Zaidar, .

Juridical Analysis on Waqf Land Certiﬁcation based on Law Number 41 of 2004 on Waqf.

DOI: 10.5220/0010087815391544

In Proceedings of the International Conference of Science, Technology, Engineering, Environmental and Ramiﬁcation Researches (ICOSTEERR 2018) - Research in Industry 4.0, pages

1539-1544

ISBN: 978-989-758-449-7

1539

The problems of this research are what is the role

of Indonesian Waqf Board on the development of

waqf land, why there are still plenty waqf lands that

have yet to be certified, this research is also regarded

very important to conduct owing to the fact that

there are still plenty of problems that emerge due to

the legal uncertainty towards waqf land that may

cause disputes in the future, between wakif, nazir, or

even heirs themselves.

2 RESEARCH METHODOLOGY

This research applied a normative legal research.

Normative legal research is a research conducted by

doing the library research or secondary data as the

source data to be analysed, where the analysing of

law and literature is related with the research

problem conducted.

The secondary data are three primary legal

materials, they are binding legal material from The

1945 Constitution Of Republic Indonesia, Law

Number 41 of 2004 on Waqf, Government

Ordinance No. 42 of 2006 as an implementing

regulation on Waqf. Secondary legal material is a

legal material that gives an explanation about

primary legal material such as books, literature,

articles.

3 RESULT AND DISCUSSION

3.1 Literature Review

3.1.1 Waqf According to Islamic Law

The word “wakaf” was originated from the word

waqf which is a word taken from the Arabic verb

waqafa (filmadi), yaqifu (fiilmudori’), waqf an

(isimmasdar) which means to stop or to stand (Al-

Alabij, 2002). Whereas the word “wakaf” according

to syara’ is to withhold a property that may be

exploited without having to use up or to damage the

object (ainnya) and to put it to good use (Al-Alabij,

2002).

Mazhab Syafi’I mentioned that waqf is to

withhold a property that could be exploited while

keeping it in one piece, and the person who owns

that property has lost its ownership to a “wakif”,

that property is also to be exploited on something

that is allowed. Mazhab Syafi’I’s definition

mentioned above has shown a firm stance on the

ownership status of a waqf property. When a waqf is

considered legitimate, therefore the ownership will

be shifted from the owner to Allah Swt., with the

understanding that a property that has been put as

waqf belongs to the society, it is no longer belongs

to the person who put that property as waqf.

Therefore, the relationship between the people who

put their property on waqf and with that very

property have ended or finished. With the ownership

ended, it also marks the beginning of a new

relationship between them and Allah owing to the

fact that they have done waqf. It is expected when

their relationship with a property has ended it will

make people more sincere to put their property as

waqf and they do not have to think that their

property will be returning to them (Lubis, 2010).

Al-Kabisi under the teachings of Hanafi

mentioned that waqf is to withhold an object under

the ownership of wakif and donate its benefits to the

poor while not damaging the object. This definition

is considered as an addition to the definition that has

been mentioned by Imam Abu Hanifah saying waqf

is to withhold the property of wakif and what is only

been given to them is merely the benefits (Manan,

2006).

3.1.2 Waqf According to the Laws

Indonesia is regarded as a country that observes this

matter of waqf keenly, this is evident from the

seriousness of the government on making

regulations that regulates waqf. The government also

issued Law. No. 41 of 2004 on Waqf which is one of

the newest form law on waqf. In this constitution, it

is clearly mentions the definition of waqf itself.

According to article 1 section 1 stated that “Waqf is

a wakif’s legal action to separate and/or to give part

of their property to be exploited forever or for a

period of time according to their interest due to

religious purposes and/or for the welfare of the

people based on syariah”.

While the “Government Ordinance No. 28 of

1977 on Land Ownership Waqf” gave a different

definition of waqf compared to Law. No. 41 of 2004

According to article 1 section 1 stipulated that:

“Waqf is a legal action of an individual or a legal

entity that separated parts of their property which is

in a form of land they owned and institutionalizing

them forever for religious purposes or for other

public usage in line with the teachings of Muslim

faith”.

From these two definitions we can identify the

differences which are: According to Law No. 41 of

2004 waqf has a limited amount of time as it deemed

fit, whereas the Government Ordinance No. 28

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mentioned that a property that has been put as waqf

is forever. However, the regulation that is applied

today is the Law No. 41 of 2004, this is because

other than this constitution is a more recent one, it is

also ranked higher in the level or degree of the

constitutions itself.

3.2 Commandments and Conditions of

Waqf

According to Islamic fiqh, therefore on the

perspective of Compilation of Islamic Lawthere are

4 conditions that has to be met in order for someone

to put something as waqf, namely:

1. Someone who put their property on waqf (wakif)

as an object of waqf

2. There is an object that has been put as waqf

(mauquf)

3. There is an individual who received waqf (as a

subject to waqf) (nadzir)

4. An aqad or lafaz is presentor a statement of

handing over waqf from wakifto a person or a

place to conduct waqf (mauqufalaihi).

(Rachmadi Usman, 2009)

Law No. 41 of 2004 also regulates the conditions

and principles of waqf, however under this

constitution it is stated as the elements of waqf. The

article 6 mentioned that a waqf can be conducted if

it fulfils the elements of waqf namely:

a. Wakif;

b. Nazhir;

c. Waqf property;

d. Ikrar Wakaf;

e. The allocation of waqf property;

f. Waqf time period.

Whereas for one of the conditions to be met,

according to Islamic Law the conditions of someone

who conducted waqf and the property that is put as

waqf are:

1. The entity that is able to receive waqf is an

individual or person.

2. The ones who has the right to receive waqf must

have a general characteristics, such as an

Islamic social institutions. (Abdurahman, 1990)

3.3 The Certification of Waqf Land

based on Positive Law

3.3.1 Land Registry According to Islamic

Law Perspective

During the time of apostles, waqf is actually been

ordered to be registered or administrated, although

there has never a law that regulates firmly stating

that particular thing. However, it is noted that the

apostles asked the companions to conduct a

registration and asked to be announced on waqf

land. Umar bin Khattab the second caliph on

khulafarasyidin decided to create a written

document on his waqf in Khaibar, he invited some

of the companions to witness the making of that

document. On that written document, as mentioned

by Ibnu Nawar, Umar bin Khattab has agreed to

donate his lands to the less fortunate, his relatives

and to free the slaves, for the benefit of being in the

way of Allah, deserters and guests. This type of

waqf can be identified as family waqf (Syam, 2015).

The tradition of waqf are mostly done verbally,

without registering the property formally to an

authorized party, this created complicated

predicaments. Plenty of a waqf property has been

lost to or created dispute with a third party, owing to

the fact that there was no written proof, such as ikrar

waqf, waqf certificate and so on. Issues like the loss

of waqf property because the ownership becomes a

dispute amongst heirs, the object of dispute between

parties who vested their interest upon, the

uncertainty of a waqf property status, therefore, it

causes waqf to be mismanaged. Therefore, the effort

to register and to certify waqf land on lands that has

yet to be certified is a form of a new understanding

in Muslim society in Indonesia (Departemen Agama

RI, 2005).

3.3.2 Land Registry on the Perspective of

Laws

According to the constitutions, properties that has

been put as waqf is in a form of owned lands, and it

also could be properties in a form of money or

objects with an economic value. However, in this

research the main subject is an owned land waqf.

Lands that have been put as waqf surely has to fulfill

certain stages. In terms of the wakif ownership until

the process of certifying the waqf land to an owned

waqf land.

Prior to the introduction of Law. No. 41 of 2004

on Waqf the Government has issued Government

Ordinance No. 28 of 1977 on Land Ownership Waqf

and it is explained more comprehensively on Home

Ordinance No.6 of 1977 on Land Registry

Procedures of Land Ownership Waqf. For the

purposes of registering lands that will be put as

waqf, there are documents that has to be attached to

the Land Registry Office, those documents are:

a. A land certificate of the parties involved;

b. The deed of Ikrar Wakaf that is issued by Ikrar

Waqf Deed Offcial;

Juridical Analysis on Waqf Land Certiﬁcation based on Law Number 41 of 2004 on Waqf

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c. A validation letter issued by District Religious

Affairs Office regarding the appointed nazhir

(Usman, 2009).

A land that has a status of the right of ownership

essentially doesn’t have a time span, therefore it

could be put as waqf. If a land that will be put as

waqf isn’t an owned land or has yet to be certified as

the right of ownership, therefore that very land

should be upgraded firstly to the right of ownership

(Harsono, 1997).

On lands that has been put as waqf

but have yet to certified, the registry will be

conducted after that land is certified. After that lands

have the right of ownership, then that land may be

put as waqf to be managed or developed by the

concerned nazhir.

According to article 4 on “Peraturan Menteri

Dalam Negeri Nomor 6 Tahun 1977”, an application

of lands that has been put as waqf but has yet to be

registered on Land Registry Office or has yet to be

certified, is to be conducted simultaneously with the

application of registering its rights to Land Registry

Office according to Government Ordinance No, 10

of 1961which later replaced and perfected in

Government Ordinance No. 24 of 1997.

After receiving the application to register the

owned land that will be put as waqf, Head of Land

Registry Office record the concerning owned land

that will be put as waqf on the land registry and its

certificate. With registering and recording of waqf at

National Land Authority Office on a right of

ownership of land that has been put as waqf on a

certificate, therefore that land has a legal certainty

status, which is a waqf certificate.

The certification of waqf land is a national

program as a form of responsibility of both

government and society. Hence, to find out a

definite amount of waqf land in Indonesia a

definitive data collecting must be conducted. There

are still plenty of people that has put their lands as

waqf without Ikrar and registration (Sutedi, 2007).

A record keeping was conducted, therefore that

existence of waqf has been recognized formally

juridical. Hence, a waqf is considered legitimate if it

meets two conditions which are:

1. It has fulfilled the requirements of material law,

which is a waqf has been conducted and has

fulfilled the conditions according to Islamic law.

2. It has fulfilled the requirements of formal law,

which is that it has been recorded by Ikrar Waqf

Deed Offcial (PPAIW), and has been recorded to

an authorized institution.

Waqf is not based only on the fulfilment of the

conditions according to Islamic teachings, but it also

has to fulfil formal conditions as mentioned on the

applied constitutions (Hamami, 2003). Waqf that has

fulfil the material law requirements but has yet to

fulfil its formal law requirements is not considered

as a waqf. Whereas when a waqf has fulfill the

formal law requirements but has yet to fulfill the

material law requirement, a waqf cannot be

conducted.

3.4 The Role of Ikrar Waqf Deed

Offcial on Waqf Land Registration

The laws of waqf has regulated the main tasks and

functions of each institution on certifying waqf land.

Wakif that will put their lands as waqf for religious

purposes or public interest. Wakif on putting their

lands as waqf must declare ikrar verbally or written.

Article 17 section (1) mentioned that: “A waqf ikrar

is conducted by the Wakif to Nadzir in the presence

of PPAIW and being witness by 2 (two) witnesses”.

Article (2) mentions that “Waqf ikrar as mentioned

in article (1) is declared verbally and/or written also

stated in the deed of Ikrar Wakaf issued by PPAIW

with mentioning the individual’s name who was

appointed as nazir”.

After the waqf ikrar was conducted in the

presence of PPAIW and has been stated in the deed

of Ikrar Wakaf, then, the PPAIW on behalf of the

Nazir registered the waqf property to an authorized

institution no later than 7 (seven) days of business

days since that deed of Ikrar Wakaf was being

signed (Law No. 41 of 2004 article 32).

Furthermore, article 33 stipulated that: “The

registration of waqf property as mentioned on article

32, PPAIW submits: a. the duplicate of Ikrar Wakaf

deed; b. letters and/or proofs of ownership and other

related documents. Afterword, an authorized

institution in this case, the National Land Authority

will issue a proof of registering the waqf property.

PPAIW must submit those proofs of registration to

the appointed Nazir”.

Therefore, the documents that has to be

completed by PPAIW on registering a waqf land to

Land Authority are:

a. Application Letter to

land registry and the issuing of the waqf

certificate;

b. Letters of proofs of land ownership and other

letters of information required;

c. The deed of Ikrar Wakaf or the replacement deed

of Ikrar Wakaf issued by PPAIW; and

d. Validation Letter of the appointed Naziri ssued

by PPAIW (Kantor Urusan Agama).

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Based on the explanation above, it is clear that

Ikrar Waqf Deed Offcial or PPAIW on Religious

Affairs Office plays a vital role on the certification

of waqf lands.

3.5 Supervising and Managing Waqf

Property

3.5.1 The Task and Authority of Nazhir as

an Individual Who Manages Waqf

Nazhir Wakaf or Nazhir is an individual who is

tasked to manage waqf. The term Nazhir is defined

as someone or a group of people and a legal entity

which are tasked by wakif (the person who conduct

waqf) to manage waqf. According to the book of

fiqih, nazhir is also called mutawalli, an individual

who is authorized to manage and look after waqf

(Azhary, 2006).

The responsibility of nazhir is to manage,

supervise, fix, and maintain the waqf property from

other individual’s claim. If an individual has been

appointed as nazhir, he/she is authorized to lease

and/or develop the waqf property and also to share

its payoff to the waqf receiver. In the effort to

develop waqf property so it would be more

productive, according to scholar Mazhab Hanafi,

nazhir may be given a reasonable wage (Thaib,

2003).

Nazhir is an individual who has the right to act

on the waqf property, to take care of and manage,

maintain, and distribute its payoff to anyone who

deserve to receive it, or to conduct anything that

may lead to a well and eternal growth in wealth.

Nazhir must also create a report on any activities

conducted regarding the waqf land that they’re

managing. To maintain the waqf property, on

Islamic syari’at it is a nazhir right to receive a form

of wages for their hard work in taking care of waqf.

TheRasulullah has determined the rights of nazhir as

follows:

“Ibnu Umar Peace Be Upon Them Mentioned: It is

not a sin for people who preserve those property and

to be fed because of that property (waqf property) in

a proper way or to fed their relatives, not to heap

rewards or to enrich themselves (muttafaqun alaih)”

(Halim, 2005).

Nazhir, will be given a sanction in a form of

dismissal and replacement if they do not perform

duties. This is regulated on article 6 section (4)

Government Ordinance No. 42 of 2006, which is: “If

a Nazhir, did not perform their duties 1 (one) year

since the deed of Ikrar Wakaf has been issued, the

Head of District Religious Affairs Office by their

own initiative or through the wakif or its heirs

suggestions may conduct a proposal to Indonesian

Waqf Board to dismiss or replace the appointed

nazhir”.

3.5.2 Managing and Supervising Waqf by

Indonesian Waqf Board

Besides Nazhir, the ones who has rights and

obligations on the waqf property is Indonesian Waqf

Board. The existence of Indonesian Waqf Board is

considered as a barometer of success on managing

waqf in Indonesia. The Law. No. 41 of 2004 on

Waqf mentioned that Indonesian Waqf Board is an

independent institution to develop waqf in

Indonesia. Based on that explanation, it is vital to

create Indonesian Waqf Board as an institution to

manage and develop the waqf property.

Indonesian Waqf Board is tasked to develop

waqf productively, until that waqf can be used to

improve the society’s standard of living. Indonesian

Waqf Board as an organization has to be

independent, whereas the government in this case is

acting as a facilitator, regulator, motivator and

supervisor. The main task of this institution is to

enable waqf, moving objects or non-moving objects

in Indonesia so that it could empower the Muslims

especially.

The task of Indonesian Waqf Board is to nurture

the appointed nazhir all over Indonesia. Indonesian

Waqf Board alongside Ministry of Religious Affairs

will be supervising the management of waqf

throughout Indonesia by introducing policies that is

heading towards the enhancement of nazhir’s

capability so that they can productively manage

waqf that was given to them. Therefore, the

operative task of Indonesian Waqf Board is only to

manage the waqf property that has been stranded,

nationally and internationally. The waqf object then

develop through the related institutions (Departemen

Agama RI, 2005).

The standing of Indonesian Waqf Board on waqf

property is considered an important role to

materialize a professional and productive waqf

management. This is because article 49 of Law No.

41 of 2004 has regulated the duties and authorities of

Indonesian Waqf Board.

4 CONCLUSIONS

The standing of Indonesian Waqf Board on waqf

property is considered an important role to

materialize a professional and productive waqf

Juridical Analysis on Waqf Land Certiﬁcation based on Law Number 41 of 2004 on Waqf

1543

management. This is because article 49 of Law

Number 41 of 2004 has regulated the duties and

authorities of Indonesian Waqf Board.

To receive a legal certainty and to avoid disputes

in the future, therefore the lands that has already put

as waqf must be certified and afterwards could be

managed well for the benefits of mankind.

ACKNOWLEDGEMENTS

This research was funded by University of Sumatera

Utara in accordance with TALENTA University of

Sumatera Utara Research Contract Year of Fiscal

2018 Number: 2590/UN5.1.R/PPM/2018 Date 16

March 2018

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