Online Waqf Management in Legal Perspective

Sudirman

, Saifullah

, Erik Sabti Rahmawati

, Fakhruddin

and Ramadhita

Fakultas Syariah, Universitas Islam Negeri Maulana Malik Ibrahim, Jl. Gajayana No. 50, Malang, Indonesia

Keywords: legal perspective, management, online waqf

Abstract:

This study explores the current phenomenon of online waqf viewed from Indonesian law. Online

waqf has several benefits for waqf founders (wakif), moving one step further towards the

innovation of technology. However, some problems and risks should be considered, such as

administrative matters, waqf statements, and waqf perpetuity. Using Act Number 41 Year 2004

on Waqf, online waqf will be observed closely to avoid mismanagement of waqf.

By applying

careful online waqf, it is possible to raise Islamic funds through online waqf safely. There are

some ways to do, such as understanding the idea of waqf and introducing the government policy

on online waqf.

1 INTRODUCTION

Basically, waqf is aimed at establishing wealth for

perpetuity. Muslims may distribute their wealth for

the sake of Allah through building mosques,

providing tomb areas, or completing public facilities

(Hasan, 2012; Suhadi, 2002). However, waqf has

grown not only in the form of land, but also in the

form of cash waqf (Fanani, 2010; Rosalinda, 2010).

Land as immovable waqf and cash money as

movable waqf may be done via online waqf even

though the most popular online waqf is cash waqf

through electronic means, such as internet banking

facilities (Amin et al., 2014). It is a kind of new

fundraising methods to attract people to donate some

of their wealth easily.

Furthermore, cash waqf has been

accommodated in Indonesian law since 2004. As

stated in Act Number 41 Year 2004 on Waqf (Waqf

Act), someone who wants to do cash waqf should go

to Sharia banks, states his/her intention and hands

some money in to a selected manager of waqf

(nadhir). It is implemented directly in the bank

(Hasan, 2011). Nevertheless, the advanced

technology may ease people to do cash waqf without

their presence in the bank. They can use their mobile

phone or computer to do cash waqf. The problem is

that this phenomenon is not covered by the

regulation.

Some countries that have implemented online

waqf are Kuwait and Malaysia (Ahmad et al., 2014).

In both countries, online waqf may be a viable

solution to increase the redistribution of wealth

among Muslims. However, in Indonesia, online

waqf may have serious problems of trust and

maintenance. It needs some solutions to avoid the

mismanagement of online waqf.

2 METHOD

This study is normative research using several books

and Indonesian acts as the main resources (Bisri,

2004; Yin, 2008). It is also a qualitative research

(Merriam, 2009; Babbie, 1998). The main resources

are some literatures related to contemporary waqf. In

addition, Indonesian regulation, Act Number 41

Year 2004 on Waqf, is applied as the tool of

analysis.

3 FINDING AND DISCUSSION

3.1 Waqf in Islamic Context

Waqf is derived from Arabic, waqafa-yaqifu ( -

) which means stop, the opposite of istamarra

() (Munawwir, 1984). Wehr (Wehr and Cowan,

1994) interpreted waqafa as to come to a standstill

or to come to stop. Waqf according to Abu Hanifah

in al-Hafsaki’s (al-Hafsaki, n.d.) is holding property

under one's ownership along with the provision of

benefits as a sadaqah. Furthermore, according to az-

Sudirman, ., Saifullah, ., Rahmawati, E., Fakhruddin, . and Ramadhita, .

Online Waqf Management in Legal Perspective.

DOI: 10.5220/0009924411691174

In Proceedings of the 1st International Conference on Recent Innovations (ICRI 2018), pages 1169-1174

ISBN: 978-989-758-458-9

1169

Zuhaili (az-Zuhaili, 2008), waqf is the restraining of

possessions which makes it possible to take

advantage with the fixed treasure and disconnect the

management from the wakif in order to get closer to

God (Abu Bakar, 2005).

With the rapid development of society, waqf is

no longer only associated with the object of waqf in

the form of land, but has penetrated to other forms of

waqf, such as moving objects in the form of money

(Mansur, 2008). In Indonesia, several new types of

waqf have been accommodated by the Waqf Law.

This is a completion of the concept of waqf

contained in Government Regulation (Peraturan

Pemerintah) Number 28 Year 1977 on Waqf of

Personal Property (GR on Waqf).

The concept of waqf in GR on Waqf mostly

adopts the Shafi`i’s concept. It can be seen in the

scope of waqf limited on immovable waqf, such as

land and building. Article 1 states that waqf is

“Perbuatan hukum seseorang atau badan hukum

yang memisahkan sebagian dari harta kekayaannya

yang berupa tanah milik dan melembagakannya

untuk selama-lamanya untuk kepentingan

peribadatan atau keperluan umum lainnya sesuai

dengan ajaran agama Islam” (The legal act of a

person or legal entity that separates a portion of

his/her assets in the form of land property and

institutionalizes it for perpetuity for the purposes of

worship or other general purposes in accordance

with the teachings of Islam). This definition shows

that waqf is only in the form of land and should be

declared for unlimited time.

Nevertheless, the concept of waqf has been

revised significantly through the Act Number 41

Year 2004 on Waqf, signed by the President

Yudhoyono on 27 October 2004. Article 1 in this

Waqf Act shows that waqf is “perbuatan hukum

wakif untuk memisahkan dan/atau menyerahkan

sebagian harta benda miliknya untuk dimanfaatkan

selamanya atau untuk jangka waktu tertentu sesuai

dengan kepentingannya guna keperluan ibadah

dan/atau kesejahteraan umum menurut syariah.

(wakif legal acts to separate and/or give a portion of

his/her property to be used forever or for a certain

period of time in accordance with their interests for

the purposes of worship and/or public welfare in

line with sharia)” In this definition, waqf is not

limited to a certain property. Waqf is also can be

stated for a limited period of time.

The fundamental difference between the

definition of Waqf in Waqf Act and GR on Waqf is

that waqf is not always referred to perpetuity but it

can be for a certain period of time. Therefore, one

can donate the land or money within a month or a

year. He/she can take his/her property back to full

ownership when the agreed deadline has been

exceeded. In addition, the other difference is that the

form of waqf is not only restricted to immovable

objects but also movable ones.

From some characteristics of waqf above, it can

be inferred that the essence of waqf is to maintain

and manage the treasures that have been submitted

for the benefit of religion and the benefit of people.

Waqf aims to provide the benefits of the property for

people who are entitled in waqf statement and used

in accordance with the teachings of Islam. This is in

line with the waqf function mentioned in Article 5 of

the Waqf Act which states that waqf function is

“mewujudkan potensi dan manfaat ekonomis harta

benda wakaf untuk kepentingan ibadah dan untuk

memajukan kesejahteraan umum”(to realize the

potential and economic benefits of waqf property for

the sake of worship and to promote the general

welfare.) The more waqf objects collected, the

greater the possibility to prosper community. Of

course, it is with the condition that the managers

possess high trust and creative thinking in

developing waqf property.

Several institutions of philanthropy have

introduced different kinds of waqf. Dompet Dhuafa,

for instance, has some programs of modern waqf

such as cash waqf, plants, vehicles, and precious

metals (Dompet Dhuafa, 2014). In addition, Global

Waqf promotes some programs such as minimarket

and plantation areas (Aksi Cepat Tanggap Dompet

Dhuafa, 2017). These facts indicate that waqf can be

modified to be more productive and more suitable

with the needs of society.

3.2 History of Cash Waqf

In the history of Islam, cash waqf has been practiced

since the beginning of the second century of Hijri.

Narrated by al-Bukhari (al-Bukhari, n.d.), that az-

Zuhri (d. 124 H) one of the leading scholars and the

founder of the tadwin al-hadis (compilation of

prophetic tradition) said that waqf of the dinar and

dirham was recommended for the construction of

social facilities, da'wah (proselytizing) and Islamic

education by making it as business capital to collect

the profits.

Cash waqf is also known during the Ayyubid

dynasty in Egypt. At that time, the development of

waqf was quite advanced because it was not only

limited to immovable objects, but also moving

objects including cash waqf. In 1178, to raise the

welfare of the ulama and to implement the mission

interests of the Sunni followers, Salahuddin al-

Ayyubi introduced the policy that Christians who

came from Alexandria to trade were obliged to pay

customs. Unfortunately, there was no explanation

whether the Christians who came from Alexandria

paid customs duties in the form of goods or money.

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But generally, the customs were paid in cash

(Djunaidi, 2007).

In this modern era, cash waqf has become

popular due to the idea of M. A. Mannan (Mannan,

2001) with the establishment of an institution called

Social Investment Bank Limited (SIBL) in

Bangladesh. SIBL introduces the first Cash Waqf

product in the world. This institution collects funds

from the rich people to be managed professionally to

produce profits channelled to the poor people

(Djunaidi, 2007).

In Bangladesh, cash waqf has been managed by

Social Investment Bank Ltd (SIBL) by developing

The Voluntary Capital Market. Islamic financial

instruments that have been developed include Waqf

Properties Development Bonds, Cash Waqf

Certificates, Family Waqf Certificates, Mosque

Device Development Bonds. Mosque Community

Share, Qard-e-Hasana Certificate, Zakat/Ushar

Payment Certificate), and Hajj Saving Certificate

(Djunaidi, 2007). This breakthrough shows that

waqf can clearly make a real contribution to improve

the welfare of people (Ansori, 2006).

Finally, there are five conditions that must be

possessed by the waqf object, as reported by al-

Kabisi (Al-Kabisi, 2004). The five conditions are

that the waqf property has a value, the form of waqf

property is clear, the waqf property is under the

ownership of wakif, the waqf property can be

handed over, and the waqf property must be

separated. Cash waqf, which is usually in the form

of cash money in this case, conceptually fulfils the

five conditions.

3.3 The Legal Status of Cash Waqf

Cash waqf law has been a concern of Islamic jurists.

There is different opinion on cash waqf. Al-Bukhari,

revealed that az-Zuhri (d. 124 H) argued that the

dinar could be managed. The process was to make

the dinar a venture capital (trade), then its profit was

distributed as waqf. Az-Zuhaily also revealed that

the Hanafi sect allowed cash waqf as an exception,

based on the sincere nature of al-'urfi (tradition), as

it had been done by many. The Hanafi sect argued

that the law determined by 'urf (tradition) had the

same force as the law set by nash (text). The basis of

the argument of the Hanafi sect was the hadith

narrated by Abdullah bin Mas'ud, “What is

considered good by the Muslims, then in the sight of

Allah is good, and what is considered bad by the

Muslims then in the sight of Allah is bad.” The way

to do cash waqf according to Hanafi sect is to make

it a venture capital with mudharabah or

mubadha'ah. While the profits are given to the waqf

benefit recipients.

In contrast, Ibn Abidin argued that cash waqf

was the habits in Roman territory, whereas in other

countries, it was not customary. Therefore, Ibn

Abidin stated that cash waqf was not permissible

(Djunaidi, 2007). The Shafi'i school of thought

believed that cash waqf is not permissible as

Muhyiddin an-Nawawi said in his book, Al-Majmu'.

According to him, Shafi'i did not allow cash waqf

because dinar and dirham would disappear when it

was paid.

The different opinion above is mainly based on

the form of money. Does the form of money after

being used or paid is still there, maintained, and can

make a profit again for a long time? But if we look

at the current development of the economic system,

it is really possible to carry out cash waqf. For

example, the money is used as business capital or

invested in the form of shares in a strong company

or deposited in Islamic banking. The profits then can

be channelled to the needy as a result of waqf.

3.4 Cash Waqf in Indonesian Context

Cash waqf for Muslims is consider new

phenomenon. This can be observed with the birth of

the fatwa of the Indonesian Ulema Council on Cash

waqf. The fatwa committee of the Indonesian Ulema

Council (MUI) allows cash waqf (Tim Penyusun,

2003), issued on May 11, 2002. It is stated in the

fatwa that cash waqf is a waqf carried out by a

person, group of people, institutions or legal entities

in the form of cash, including securities. Cash waqf

can only be distributed and used for things that are

permitted on a shari’a basis. The principal value of

cash waqf must be guaranteed sustainability, not to

be sold, donated, and/or inherited.

Law Number 41 of 2004 on Waqf also mentions

cash waqf. This Act is a new milestone for the

management of waqf after the waqf was regulated in

Government Regulation Number 28 of 1977 and

Compilation of Islamic Law. As a positive law, the

rules, including cash waqf, that have been set are

forceful and must be implemented.

In detail, the waqf object in Act Number 41

Year 2004 is defined as the waqf property that can

only be represented if it is legally owned and

controlled by wakif (article 15). Waqf property

consists of immovable objects and movable objects.

Immovable objects include: (1) Land rights in

accordance with the provisions of the prevailing

laws and regulations, both those who have and those

who have not registered; (2) Buildings or parts of

buildings that stand on land as referred to in number

1; (3) Plants and other objects related to land; (4)

Ownership rights of apartment units in accordance

with the provisions of the prevailing laws and

regulations; (5) Other immovable objects in

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accordance with the provisions of the Shari'a and the

prevailing laws and regulations.

Moving objects are assets that cannot be used

up because they are consumed, including: 1) Money;

2) Precious Metals; 3) Securities; 4) Vehicles; 5)

Intellectual Property Rights; 6) Rental Rights; and 7)

Other movable objects in accordance with the

provisions of the Shari'a and the prevailing laws and

regulations (article 16).

Articles 15 and 16 above show that Indonesian

law on waqf has adopted the spirit of classical fiqh

which is integrated with the needs of society. In the

perspective of classical fiqh, like the opinion of As-

Shafi'i, waqf is still associated with immovable

goods, such as land and buildings. This opinion was

actually applied in Indonesia before the Act Number

41 Year 2004, as stated in the Compilation of

Islamic Law. Act on Waqf gives Muslims the

freedom to participate in the waqf program. They

can set aside a portion of their wealth for cash waqf

or even be able to give their ownership rights to be

represented in the future. This is a new breakthrough

that can provide opportunities for improving the

welfare of Muslims.

The moving object in the form of money is

explained in articles 22 and 23 of Government

Regulation Number 42 of 2006 concerning the

Implementation Act Number 41 Year 2004

concerning Waqf. Article 22 describes the following

procedures for cash waqf : (1) Endowments for

money that can be represented are rupiah; (2) In the

event that the money to be represented is still in

foreign currency, it must first be converted into

rupiah; (3) Wakifs who will endorse their money are

required to: (a) present at the Shari'a Financial

Institution of Recipients of Cash Waqf (LKS-PWU)

to declare the will of the cash waqf; (b) explain the

ownership and origin of the money to be

represented; (c) deposit cash in to the LKS-PWU;

(d) fill out the form of the Waqf Declaration which

functions as a Waqf Declaration certificate.

Then, article 23 explains that Wakif can endorse

movable objects in the form of money through LKS

appointed by the Minister of Religion as a Shari'a

Financial Institution of Recipient of Cash Waqf

(LKS-PWU). Some LKS-PWU which were

inaugurated by the Minister of Religion are Bank

Muamalat, Bank Syariah Mandiri, Bank BNI

Syariah, Bank DKI Syariah, and Bank Mega

Syariah.

Technically, the administrative waqf has been

set up. Minister of Religion Regulation No. 4 of

2009 concerning Administration of Registration of

Cash Waqf was signed on July 29, 2009. The

regulation consists of 15 articles. Some important

articles related to the discussion of this article

include article 1 to article 4.

Article 1 explains general provisions. In this

case the important terms that need to be defined are

cash waqf, LKS- PWU, and Cash Waqf Certificates.

Cash Waqf is a wakif legal act to separate and / or

surrender some of his money to be used forever or

for a certain period of time in accordance with his

interests for the purposes of worship and / or general

welfare according to sharia. A Shari'a Financial

Institution of Recipient of Cash Waqf (LKS-PWU)

is Indonesian legal entities engaged in sharia finance

set by the Minister of Religion as a sharia financial

institution receiving cash waqf. Cash Waqf

Certificate is a proof issued by the LKS-PWU to

wakif and nazhir about the transfer of cash waqf.

Articles 2 and 3 describe the Waqf Pledge. The

Waqf Pledge is carried out by the waqf to Nazhir in

the presence of LKS-PWU or notary officials

appointed as PPAIW witnessed by 2 (two)

witnesses. The Waqf Pledge was made after the

waqif deposited cash waqf to the LKS-PWU. LKS-

PWU is obliged to issue a Cash Waqf Certificate

(SWU) after giving up AIW.

Article 4 describes the registration procedure.

The LKS-PWU in the name of Nazhir registers cash

waqf to the minister through the Ministry of

Religious office no later than 7 (seven) working

days since the issuance of SWU with a copy to local

BWI. If there is no BWI representative office, a

copy is submitted to BWI Center in Jakarta.

The model, form, and specification of the cash

waqf form have been regulated in the Decree of the

Director General of Islamic Community Guidance

Number Dj.II / 420 Year 2009. The decree was

issued on 20 October 2009. A number of sample

attachments have been provided to facilitate the

process of cash waqf. With this technical rule, it is

expected that cash waqf will be implemented

without significant obstacles.

3.5 Problems of Online Waqf

Waqf is generally still assumed to be immovable

goods, such as land. Land assets are the origin of

waqf history in the time of the prophet Muhammad

and also in the historical trajectory before Islam.

However, with the development of the times, waqf is

not only limited to immovable objects, but now has

been present a variety of waqf products, such as cash

waqf, waqf vehicles, and waqf futures. The term

productive waqf is also increasingly widespread.

Therefore, the online waqf that increasingly

facilitate Muslims to do waqf.

Behind the unique online waqf, the question is

whether the online waqf has qualified the pillars of

waqf. Waqf according to the Waqf Act is a wakif

legal act to separate and / or hand over some of his

property to be used forever or for a certain period in

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accordance with his interests for the purposes of

worship and / or general welfare according to sharia.

The law of waqf has mentioned several

elements of waqf: Waqif, Nazhir, Waqf Property,

Waqf Pledge, allotment of waqf property, and waqf

period. These six elements will be observed closely.

3.5.1 Waqif

In Waqf online, waqf actors are called waqif. If

someone will do waqf, he can directly download

online waqf applications in play store. Then, he can

follow the instructions. When he will donate his

wealth, he is the wakif. He must first browse what

the programs and choose an interesting program.

However, the qualification of a wakif is not

clearly seen, whether he/she is a qualified person to

do waqf or not. Whether he/she is the owner of waqf

property or not. To avoid this problem, the manager

of waqf (nazhir) through the system should provide

some questions to the wakif to ensure that he/she is

the right person to do waqf.

3.5.2 Nazhir

Nazhir is a person, legal entity, or organization that

receives a waqf. He is responsible for managing

waqf. Of course, because waqf nature is immortal,

nazhir must be clever, amanah so that waqf is not

lost. However, it is also still vague whether the

nadhir is trustful. It is commonly known that online

transaction is blind. The organizer often does not

explain their plan and program clearly. Even, they

put wrong information online just only to attract

people to donate. Therefore, wakif should be careful

to choose the nazhir.

3.5.3 Waqf Property

Usually, the property that is represented through

online waqf is cash waqf or waqf through money.

Cash waqf is a waqf in the form of money to be

invested in the banking sector, for example in the

form of shares, or real sector such as productive

buildings. While waqf through money is a real waqf

in the form of goods, such as waqf for Quran or

waqf of building, but paid through cash. In this case,

there are lots of organizations that attract people to

donate their money to be cash waqf but in fact they

use that money to buy Quran or car. This act really

violates the law.

3.5.4 Wakaf Pledge (Iqrar)

To perform waqf, it is required for the wakif to show

his intention (pledge). In online waqf, one should be

able to apply online transaction. It is a kind of akad

or iqrar. Akad is the bond act between waqif and

nazhir. Statement from wakif is called ijab whereas

the statement from nazhir is called qabul.

This is the riskiest part of online waqf. In waqf

of land, waqif has to go to Pegawai Pembuat Akta

Ikrar Wakaf (the Officer of Pledge of Waqf) held by

the Head of Kantor Urusan Agama (Office of

Religious Affairs). In contrast, in cash waqf, wakif

has to face the officers of Lembaga Keuangan

Syariah Penerima Wakaf Uang (Sharia Financial

Institutions for Cash Waqf). Nevertheless, for the

online waqf, there is no face-to-face transaction

between wakif and nazhir. This may result in verbal

pledges of waqf not being fulfilled. As a result, the

use of waqf also cannot be reported directly. This is

the weakness of online waqf.

However, this weakness can be covered by two-

way communication between wakif and nazhir in the

form of proof of receipt of online waqf that can be

reported in writing via email or inbox application. It

has been done in Malaysia (Yusof et al., 2014).

3.5.5 Allotment of Waqf

This should be listed in the application of online

waqf, e.g. waqf of Quran menu. By clicking the type

of waqf, the designation must be in accordance with

the wakif intention. Again, wakif intentions are like

syari'. We must not violate the wakif intention.

3.5.6 Time Period

Since there are types of waqf, wakif can determine

whether the waqf is done temporary or forever. If

the form of waqf through money, it is usually stated

forever. For example, waqf of Quran. There is no

waqf of Quran that is recited by wakif. Unlike the

case of cash waqf, because it can be used in the form

of stocks and banking products such as deposits,

then when the time is exceeded, waqf can be

withdrawn by wakif.

Finally, the challenge of online waqf is also due

to the knowledge of technology. Not many people

and institutions have knowledge to use technology

for online waqf for the benefit of society. They still

need guide for outsider to guide them. The other

problem is that some institution which has intention

to raise waqf through online waqf has no license

from the government. Therefore, they should fulfil

the requirements to get the permission.

4 CONCLUSIONS

Finally, online waqf is really challenging in recent

years. When online waqf is observed closely in the

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1173

perspective of Act Number 41 Year 2004 on Waqf,

it can be concluded that online waqf does not fulfil

the requirements. The government should introduce

the new regulation to manage online waqf. We have

to take some consideration into our account to avoid

mismanagement of this type of waqf. By applying

careful online waqf, we may raise Islamic funds

through online waqf safely.

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