Financing Cooperation Agreement of Commercial Building

Construction on Land Waqf: Legal Analysis based on Indonesia Law

Helza Nova Lita

Departement Economic Law, Padjadjaran University, Jalan Raya Sumedang, Jatinangor, West Java, Indonesia

Keywords: Land Waqf, Commercial Building.

Abstract: The construction of commercial building on land waqf is one way of empowering waqf economically

productive in Indonesia .To build commercial building on land waqf requires cooperation in the development

and management. However, commercial building development on waqf land is not only related to economic

aspects, but also how are the regulations to build it based Indonesian waqf Law? This article examines legally

the cooperation of utilization and management of land waqf for commercial building construction. The

method used is normative juridical which refers to the legislation, which is analyzed descriptive analytically.

Based on article 5 of Indonesian waqf law, that waqf functions and realizes the economic potential of waqf

property for the public interest and to promote general welfare. Based on the article 43 of Indonesian Waqf

Law, the development of property waqf by Nazhir (the management of waqf) is implemented in accordance

with sharia principles and is carried out economically productively. Some models to finance the construction

of Commercial Building on Waqf Land based on Indonesian Waqf Law; financing by cash waqf, build transfer

operation system, patrnership with other institute like Hajj Savings, and other forms of development as long

as not contrary with sharia principles and laws in Indonesia. The need for partnership synergy especially with

the business partners in the development of land waqf for commercial building construction, so waqf are

strived not only intact, but also productive and growing, so the value and benefits are also increasing.

1 INTRODUCTION

Waqf is very closely related to improving human

benefit. It is also closely related to the aim of the

Islamic Shari'ah for human benefit. Al-Maslahah as a

legal argument implies that the foundation and

yardstick in establishing the law. Jumhur ulama

argues that every law set by the nash or ijma 'is based

on wisdom in the form of gaining benefits or benefit

and avoiding mafsadah (mudharat) (Ali Hasbullah in

writing Abd. Rahman Dahlan;2011).

Waqf in Islam are known along with the era of the

Prophet Muhammad, marked by the construction of

the Quba Mosque. Then followed by the construction

of the Nabawi Mosque which was built on the

orphaned land of Bani Najjar purchased by the

Messenger of Allah. The Messenger of God endorsed

the land he bought to build a mosque, and then the

companions gave support in the form of waqf to

complete the construction of the mosque (Mundzir

Qahaf in writing Suhrawardi K.Lubis:2010).

The using of property waqf is not solely for the

interest of religious and social facilities but also to

advance the general welfare by realizing the potential

and economic benefits of property waqf. The

development of property waqf requires other

innovative financing mechanism and sources of

funding (Mohamed Asmy Bin Mohd Thas Thaker and

Anwar Allah Pitchay: 2018). It allows the

management of waqf properties are executed by

economic activity in a broad sense as long as the

management is in accordance with Shariah

management and economic principles.

Waqf is part of the economic distribution effort in

Islam which has special characteristics that

distinguish between zakat or other types of alms. The

characteristics of waqf are not merely a detention of

the waqf object itself, but also must be made an effort

to develop the benefits or results of the management

of the object, so as to provide maximum results for

the benefit of the waqf recipient. Thus, this greatly

affects the development of the waqf management

institution itself in order to achieve maximum results.

Waqf institutions are an economic potential in

Islam very closely related to socio-economic

problems of the community. Waqf has a role in the

Lita, H.

Financing Cooperation Agreement of Commercial Building Construction on Land Waqf: Legal Analysis based on Indonesia Law.

DOI: 10.5220/0009921001790186

In Proceedings of the 1st International Conference on Recent Innovations (ICRI 2018), pages 179-186

ISBN: 978-989-758-458-9

179

distribution of welfare to the community. In some

countries, waqf institutions has been successfully

implemented, including in the countries of Egypt and

Singapore. In Egypt, the assets of waqf buildings and

agricultural lands that are leased or divided up to

those who are willing to do it with a profit sharing

system, giving shares in various business fields

(Wakaf di Singapura dan Mesir: 2011).

To secure the property waqf from the interference

of third parties harmful to the interests of waqf, it is

necessary to enhance the professional capacity of

Nazhir. Nazhir is the party that receives waqf

property from wakif to be managed and developed

according to its designation, meanwhile the waif is

the party that give his property as waqf.

Regarding the empowerment of waqf land for the

development of commercial building can be a form of

waqf management that is economically beneficial,

where the results can be used to improve the welfare

of the community. This is a form of developing the

management of waqf assets that can be carried out

based on the waqf law. However, in its

implementation requires a more in-depth legal study

that does not merely examine positive legal

provisions, but also the sharia aspects of the

management of commercial building itself.

This research needs to be done, how is the

regulation according to Indonesian law provisions.

Therefore, a legal review in the article will be studied

on how the arrangement of cooperation in the

development of commercial building on the waqf

land.

2 METHODOLOGY

The method used in this research is normative (legal

research). Normative (legal research) is done with the

approach of legislation and analytical descriptive.

Normative legal research with a legislative approach

is carried out by inventorying all applicable and

binding laws and regulations related to waqf. The

specification of this research is analytical descriptive,

which is to make systematic, factual and accurate

information about the facts.

3 FINDINGS

3.1 Definition and Purposes of Waqf

Waqf is one form of economic distribution that is very

potential to be developed. Significantlt, it is

undeniably true that waqf is unique concept of

Islamic product economically (Zunaidah Ab

Hasan,et.all :2015). In Islamic culture, waqf is as one

of the successful enterpreneurship patterns or

permanent Islamic almshouses that require using

simultaneously business skills and enterpreneurial

inovation and using the profits for eliminating

poverty and social welfare strata (Habibollah

Salarzehi,et.all : 2010).

In Islamic economic transactions, waqf is one of

economic investment for social welfare. According to

Abdurrahman Raden Aji Haqqi that “Transactions,

according to Islam, are system for a happy life on the

basis needs of the people. Islam has laid down

principles for each, thus, the rule and methods have

been enunciated relating to people, state affairs,etc.

Such principle provide a kind of social solidarity.

There is freedom and right to work, to own property

and to enjoy other property rights. Nevertheless, these

principle are bound by the langer interests of the

community in Islam. In fact, the right of private

ownership in the shari’ah is owned by God, man is to

enjoy its benefits, in other words his tittle is limited

to the benefits accruing on the property, but the legal

tittle vest in God. The exercise of this right is

circumscribed by the larger interest of the community

and, thus, the principle of social solidarity prohibit

exploitation under which the economic system of the

shariah exist (Abdurrahman Raden Aji Haqqi: 1999).

Muhammad Ibn Isma'il as-San'any, a waqf is

holding back the treasures that might be taken without

spending or destroying the object ('ain) and used for

good (Muhammad Ibn. Isma'il as-Sa'any, Subul as-

Salam, (Muhammad Ali Sabih: 2005). Imam Taqiy

al-Din Abi Bakr ibn Muhammad al-Husaeni in

Kifayat al-Akhyar argues that what is meant by wakaf

is the containment of possessions which allows to be

utilized with eternal objects (substances), is forbidden

to classify the substance and managed its benefits in

the goodness to get closer to Allah (Abi Bakr ibn

Muhammad Taqiyal-Din, Kifayat al-Akhyar: t.t).

Ahmad Azhar Basyir is of the opinion that what is

meant by waqf is to withhold the treasures that can be

taken away from the benefits not destroyed

instantaneously, and for the permissible use, and is

intended to obtain Allah's approval (AhmadAzhar

Basir: 1987). Idris Ahmad argues that what is meant

by waqf is to withhold the treasures that might benefit

people, its eternal substance ('ain) and to surrender it

to the places specified syara', and prohibited freely on

the objects it utilizes ( Idris Ahmad:1986).

According to Article 1 number 1 of Act Number

41 of 200, waqf is "legal actions to separate and / or

surrender some of his property to be used forever or

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for a certain period of time in accordance with his

interests for the purposes of worship and / or welfare

general according to sharia ". Based on article 6 of the

Waqf Law, waqf are carried out by fulfilling the

following elements of waqf:

• Wakif; is the party that endorses his property.

• Nazhir; is the party that receives waqf property

from waqif to be managed and developed in

accordance with its purposes Nazhir has job of

administering waqf

• property, managing and developing waqf,

supervising ,protecting, and reporting on the

implementation of duties to the Indonesian

Waqf Board.

• Waqf Assets ; Waqf assets based on article 1 of

Waqf that have long - term durability and /or

long-term benefits and have economic value.

• Waqf Pledge; is statements of wakif will can be

stated spoken verbally and/or writing to Nazhir

to endow his property

• Purpose of Waqf ; based on Article 22 of waqf

Law, waqfs can only be used for:

o Worship facilities andactivities;

o Education and health facilities and

activities;

o Assistance to the poor, neglected children,

orphans, scholarships;

o Improvement of the people's

economy;ad/or

o Improvement public welfare that is not in

contrary with sharia principles and

legislation in Indonesia.

o Waqf Term; as stated in Article 1 of the

waqf Law that waqf property is to be

utilized forever or for a certain period of

time.

Based Indonesian Waqf Law, the assets that may

be represented under the Waqf include immovable

property and movable objects such as money,

precious metals, securities, vehicles, intellectual

property rights, leases and other movable goods in

accordance with the provisions of shari'ah and

applicable laws and regulations. Based on Article 16

of Government Regulation Number 42 of 2006

concerning the Implementation of Law No. 41 of

2004 on Waqf , Immovable objects that can be waqf

includes:

• Rights to land in accordance with the provisions

of both existing and unregistered Legislation

• Buildings or parts of buildings on the land

referred to in letter a above;

• Plants and other objects related to the soil

• Ownership rights of apartment units in

accordance with the provisions of the Laws and

Regulations; and

• Other immovable property in accordance with

the provisions of shariah principles and Laws.

Law Number 41 of 2004 on Waqf has given

expansion to the function of waqf, which in addition

serves to fulfill the interests of worship as well as to

promote the common prosperity. In this case as one

of the strategic steps to improve the general welfare,

it is necessary to increase the role of waqf as a

religious institution that not only aims to provide

various religious and social facilities, but also has

potential economic power, among others to promote

the general welfare, in accordance with sharia

principles.

3.2 Financing Agreement of

Commercial Building Construction

on Land Waqf

In general, the establishment of commercial buildings

on land waqf in Indonesia, especially in the area of

Jakarta is built for mosque, which is also included

with other development managed and leased

commercially, where the rent is utilized for mosque

and social activities others according to pledge of

waqf.

Based on Article 42 Waqf Law states that Nazhir

is obligated to manage and develop the propery waqf

in accordance with its purpose, function and

appropriation. Assets waqf are strived not only intact,

but also productive and growing, so the value and the

results are increasing. Because basically the better

and productive a nazhir in maintaining and managing

asset waqf, the greater the benefits gained by mauquf

a'laih or waqf recipients. Furthermore, in Article 43

of the Waqf Law that the management and

development of property waqf by Nazhir is carried

out in accordance with sharia principles and carried

out economically productively.

Based on Article 43 of the Waqf Law, the

management and development of property waqf by

nazhir must be implemented in accordance with the

principles of sharia, it also has consequences in the

preparation of cooperation agreements for the

management of assets waqf, including cooperation

agreements and financing of commercial building

development on land waqf. Based on the provisions

of Article 1233 of the Indonesian Civil Code stated

"Each contract is born either by agreement, or by

law". This Article explains that 2 (two) sources of the

engagement:

• Agreement; and

Financing Cooperation Agreement of Commercial Building Construction on Land Waqf: Legal Analysis based on Indonesia Law

181

• Laws.

Based on article 1313 of the Indonesian Civil

Code states "a covenant is an act by which one or

more persons commit themselves to another or more

persons. This chapter explains simply the notion of a

covenant which describes the existence of two

binding parties.Agreement as the source of

engagement, when viewed from its form, may be

either a written agreement or an unwritten agreement.

Similarly, waqf contract based on Waqf Law can be

oral or written. However, for the protection of a better

legal force, pledges and contracts should be executed

in writing. The concept of financing agreement of

commercial building development on land

Cooperation / Sharia Financial Institution. To

increase the benefits of land waqf according to pledge

of waqf, nazhir cooperates with banking partners or

sharia financial institutions.

The management system of waqfs through

Furthermore related to the provisions of the

Indonesian Waqf Law, that the activities of the

management of wassets waqf must be in harmony

with the principles of sharia. It also demands

financing and management of flats on land waqf

through a sharia-based financing system. musharaka

or mudaraba. The use of sharia system is intended for

the management of waqf in accordance with Islamic

values. Management and development of waqf goods

carried out in accordance with sharia principles,

among others, is specifically regulated in the

provisions of Article 43 of Law Number 41 Year

2004 regarding Waqf.

The cash waqf can be one of financing source to

build a commercial building in land waqf. The cash

waqf may be raised by issuing waqf certificates of

different denominations against the planned project,

so that a number of individuals or institutions as wakif

may buy them and thus join together to finance the

planned projects (Abulhasan Msadeq: 2002).Cash

waqf is the best way for a joint waqf, thus it can attract

finance for the development of diverse economic

activities, and therefore greater revenue can be

expected (Mohammad Tahir Sabit Haji Mohammad:

2011).

Based on Article 28 of the Indonesian Waqf Law,

it is stated that waqif can grant movable objects in the

form of money through sharia financial institutions

appointed by the Minister. Nazhir in this case

cooperates with Islamic banks in Indonesia to collect

cash waqf which can then be used to finance

commercial building development cooperation on

waqf land.

In operation of waqf development, nazhir is at the

forefront of keeping these waqf assets protected and

increasing the results. Therefore, in the development

of waqf is required waqf professional management.

The first finding from the study is related to the

personal experience of the participant in the waqf

related knowledge. It is very crucial as human capital

and man power plays important role in realising the

institutional objective. Thus, as a waqf manager and

administrator for the institution Mutawalli, personal

experience can portray a good management practice

(Hasyeilla Abd Mutalib: 2016). Based on Article 11

of Waqf Law, Nazhir must do administer, manage

and develop wakaf property, including supervising

and protecting waqf properties, and reporting on the

implementation of duties to the Indonesian Waqf

Board.

3.3 Cooperation to Build Commercial

Building on Waqf Law with Built

Operate and Transfer (BOT)

System

In the development of waqf through partnerships can

also be implemented with the pattern of Built Operate

and Transfer (BOT). Some studies on developing

waqf in the form of development capital need to be

implemented in private partnership policies or

partnerships with the private sector (investors). One

of the project financing models is the BOT system.

Endowment Financing with Build Operate

Transfer (BOT) is a contract between Nazhir and the

project sponsor where sponsors (investors) finance,

design, build, operate and manage facilities from the

project until a certain concession period. In

morestraightforward language, BOT is a partnership

between Nazhir and investors with a cooperative

pattern; build, manage, and transfer ownership.

During the concession period, the sponsor earns

income from operating the project to close the

investment and make a profit. As long as the

concession period expires, the ownership of the

project is handed over at no cost to Nazhir (Waqf

Directory of Religion Ministry of Indonesia, 2012).

The parties participating in the financing system

with the BOT system are granting authority, usually

project sponsors; one or more financial institutions

The role of Granting authority is to identify the needs

and requirements of the project, set a concession

period, find a bidder or auction, and submit a contract.

Project sponsors can be individuals, companies, joint

ventures or consortia that have experience

implementing and implementing projects. All matters

relating to rights and obligations in terms of

administrative financing, profit sharing, interest

transfer, termination and other problems are set forth

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in the form of an agreement (Sudarto in Waqf

Directory of Religion Ministry of Indonesia:2012).

Capital investment can be obtained from commercial

banks, insurance companies, multilateral

organizations, or the sale of bonds.

Example of BOT Model Practices in the

Collaboration of Commercial Building Construction

on waqf land on the construction of the Raudha

Building, productive waqf assets at Kuningan Barat

II Street, South Jakarta. The Raudha Building is a

productive waqf asset that stands on Jalan Kuningan

Barat II. This building is rented for offices. There are

some private companies with offices in the building.

This building provides commercial benefits that are

used to finance the educational operations of the

Raudhatul Muta'allimin Foundation (YRM) in

Jakarta. YRM manages 3 (three) education units,

namely Raudhatul Athfal (RA) at the level of

kindergarten, Islamic elementary school (MI) at the

elementary level, and Madrasah Tsanawiyah (MTs)

at the junior high school level. The number of

children studying in the three educational institutions

was 420 students, while there were 40 employees and

teachers (Nurkaib: 2015)

Figure 1: Raudhah Building, Productive Waqf Assets

Figure 2: Raudhah Building, Productive Waqf Assets

3.4 Use of Hajj Savings Funds for

Construction Commercial Building

on Waqf Land

Law No. 34 of 2014 concerning Financial

Management of Hajj, is very relevant if invested

through cooperation in the development of waqf

assets productively, in essence is very synergistic

with the provisions of the Waqf Law Number 41 of

2004. Because between the two the rule of law is very

synergistic and in accordance with the aim of its

purpose for the benefit of Muslims.

Pursuant to the provisions of Law 34 of 2014

concerning Hajj Financial Management (PKH Law),

Hajj funds are funds for the cost of organizing Hajj

pilgrimage, funds for efficient hajj administration,

community endowments, as well as the value of

benefits controlled by the state in order to administer

Hajj and implementation activity program for the

benefit of Muslims.

Related to the purpose of waqf for social justice

mentioned in the provisions of Article 5 of Law

Number 41 of 2004 that the Waqf serves to realize the

economic potential and benefits of property for the

sake of worship and to promote general welfare. This

provision is also affirmed in Article 22 of Law

Number 41 of 2004 that in order to achieve the

objectives and function of waqf 1, waqf property can

only be used for: worship facilities and activities,

educational and health facilities and

activities;assistance to needy neglected children,

orphans, scholarships; progress and improvement of

people's economy; and / or other public welfare

advances.

Financing Cooperation Agreement of Commercial Building Construction on Land Waqf: Legal Analysis based on Indonesia Law

183

Waqf Law reflects efforts to meet the need to

realize prosperity in society as a form of

implementation of social justice in Islam.

In the provisions of the Waqf Law, it is regulated

so that waqf assets are managed productively which

can improve their results economically. The

provisions in Article 5 of the Waqf Law which states

that waqf serves to realize the economic potential and

benefits of waqf property for the sake of worship and

for the benefit of the general welfare. This provision

shows that waqf assets are managed productively so

as to provide economic improvement in an effort to

improve the welfare of the community. The

provisions of Article 5 of the Waqf Law are very

much in line with the implementation of the waqf

principle itself, which not only contains the principle

of immortality (ta'bidul aṣli), but also the principle of

benefit (tasbilul manfāh), how to make waqf assets to

be enjoyed by the wider community, so that it is

needed optimal and productive management efforts.

Because the increasing results of the management of

waqf assets, the greater the benefits that can be given

to the community. Thus the use of waqf will greatly

contribute to efforts to realize social welfare in

society.

Based on the provisions of Article 3 that the

financial management of Hajj aims to improve the

quality of Hajj implementation, rationality and

efficiency of the use of BPIH, and the benefits for the

benefit of Muslims. Furthermore, in Article 4 of the

PKH Law, the Hajj finances include revenues,

expenses and wealth. More details in Article 10

specifically for Hajj financial expenditures include

Article 10 letter g for the benefit of Muslims.

Hajj Financial Management Agency (BPKH)

pursuant to Article 22 of the PKH Law, BPKH has

the authority to place and invest Hajj finance in

accordance with sharia principles, prudence, security,

and value benefits, as well as to cooperate with other

institutions in the framework of Hajj Financial

management.

The Islamic Religious Council of each state in

Malaysia acts as Nazhir for their respective regions.

Likewise with the Alliance Regional Islamic Religion

Council (MAIWP) acting as Nazhir in the territory of

the alliance. For example MAIWP became Nazir for

the Imara Wakaf Building in Kuala Lumpur. In the

construction of the Imara Wakaf building, MAIWP

cooperates with Tabung Haji.

The Imara Waqf Building was established on

waqf land, where MAIWP is domiciled as Nazhir,

cooperating with the Tabung Haji Foundation as a

financing provider. The building known as the Imara

Wakaf Tower is as high as 34 levels with 2

underground levels and 7 levels of vehicle parking

built on waqf land covering an area of 52,838 square

meters to become one of the endowments in

Malaysia. It is located next to the Petronas Twin

Towers which is the artery of the Malaysian Kuala

Lumpur bandaraya. The waqf tower was formalized

in October 2011, and is fully leased by Bank Islam

Malaysia Berhad. The result is intended for waqf

mustahik.

The location of the Islamic Bank Tower is in the

KLCC shopping center. Its strategic position in the

business center of Kuala Lumpur city makes an

attractive icon of luxury to be an example of the right

development of productive waqf. Likewise, locations

that are easily accessible by various access to

transportation facilities, and other commercial areas

make this building a waqf also has high economic

value.

Figure 3: Imara Wakaf, Islamic Bank Building on Waqf

Land, Kuala Lumpur.

(https://web.facebook.com/maiwp.hq/photos/pcb.1097898

976935093/1097898856935105/?type=3&theater)

The success of the construction of the Imara Waqf

building in Kuala Lumpur can be an example of the

use of Hajj funds in Indonesia. In this case the Hajj

Financial Management Agency can cooperate with

professional waqf institutions including the

Indonesian Waqf Board (BWI), because according to

the provisions of the Waqf Law, BWI not only has the

authority as a regulator but also as Nazhir. In this case

it is appropriate if BWI can cooperate with the Hajj

Fund Management Agency in an effort to develop

productive waqf assets, including the participation of

other related parties, especially Islamic banking. To

develop the establishment of commercial building on

waqf land, the Ministry of Public Housing (PUPR)

has a strategic plan for land representation for flats.

However, it is necessary to have a Chief Executive

Officer (CEO) specifically involved in the

development of waqf land for the construction of this

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commercial building, which is more understanding

and professionally understood in relation to its fields.

Therefore Nazhir waqf must be able to establish

synergic cooperation with the parties of the executor

(CEO).

Besides that there also needs to be an in-depth

legal study of ownership as well as the transfer of

ownership from commercial buildings erected on the

waqf land. Because this matter is also very vulnerable

in its legal protection, for example if the decision is

in the form of a foundation, in the provisions of the

foundation law, the authority of the Nazhir

supervisory board can change this.

Waqf will grow rapidly if it is managed by people

who are professional and have superior business

skills. However, in practice in Indonesia there are still

many obstacles that must be overcome in the

development of this productive waqf including; the

mindset pattern of traditional waqf thinking is

changed towards the thinking of modern and

professional waqf development, cultural barriers that

require a long time for change, as well as the courage

or real action to start something new and different

about the development of waqf, and the need for

professional human resources and Nazhir who

manages the waqf assets themselves.

In general, the establishment of commercial

buildings on waqf land in Indonesia, especially in the

Jakarta area is still a development of the use of waqf

land built by mosques, in this case Nazhir also adds

other development which is then leased

commercially, where the results obtained are used for

operational financing of mosques and other social.

The successful development of waqf imara through

the use of Hajj tube funds in Kuala Lumpur, can be

an example for Nazhir in producing waqf assets in the

form of land through the establishment of commercial

buildings on waqf land. So that waqf assets are sought

not only to be kept intact, but also productive and

developing, so that the values and results are

increasing. Because basically the better and

productive a Nazhir is in maintaining and managing

waqf objects, the greater the benefits obtained by

mauquf a'laih or the recipient of waqf.

4 CONCLUSIONS

Waqf assets based on Article 5 of the waqf law have

economic value and must be managed productively,

so that the purposes of waqf can be achieved. Nazhir

has a very important role to develop assets waqf

economically productive. Based on the provisions of

Article 43 of the Waqf Law, the management of waqf

objects must be based on sharia principles. This has

the consequence that cooperation in financing

agreements and management of waqf must also be

based on sharia principles. This implies that the

agreement on building commercial cooperation on

land waqf should also be based on sharia principles,

including in its Financing. There some model to

finance the construction of Commercial Building on

Waqf Land based on Indonesian Waqf Law;

Financing by Cash waqf, Build Transfer Operation

System, Patrnership with other institute like Hajj

Savings, and other forms of development as long as

not contrary with sharia principles and laws in

Indonesia.

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