Implementation Certification of Waqf Land in Medan City

Ahmad Budinta Rangkuti

, Ilyas Ismail

, and

Muldri Pudamo James Pasaribu

Student of Doctoral Program in Law, Universitas Sumatera Utara, Jl. Abdul Hakim No. 4, Medan, Indonesia

Lecturers at Doctoral Program in Law University of Syah Kuala, Jl. Putroe Phang No. 1, Banda Aceh, Indonesia

Lecturer at Faculty of Law University of Simalungun, Jl. Sisingamangaraja Barat, Pematangsiantar, Indonesia

Keywords: Certification, Implementation in Medan City, Waqf Land

Abstract: Government Regulation Number 28 of 1977 concerning Owned Land Representation, Law Number 41 of

2004 concerning Waqf, and Government Regulation Number 42 of 2006 concerning Implementation of Law

Number 41 of 2004 concerning waqf, is a renewal in the field of property ownership which regulates, curb

and direct in such a way that it really fulfills the goals in waqf in accordance with Islamic teachings. The

problem raised in this research is how the implementation of the ownership of the land ownership becomes a

waqf land in Medan City. This research uses a normative juridical approach and supported by empirical data.

The results of the study explain the role of the official making the waqf pledge in the making of the waqf

pledge deed in the city of Medan carried out through the procedure of ownership of land to become waqf

land. The role of the Medan City National Land Agency starts from the Servant, land case complaints and

information, Land case studies, Land case handling, and Land cases and legal actions for the execution of

court decisions.

1 INTRODUCTION

The land is part of the earth. Therefore, the area is

controlled by the state; the state controls the concept

means the state regulates, in this case, the state has

the authority to manage and regulate land for the

greatest prosperity of the people (Setiawan, 2009).

The concept of controlling rights means that the

state is not the owner of the land, but only as the

holder of power over property in all parts of

Indonesia (Soerodjo, 2014). The country is the

manager and regulates land allotment and use as

stipulated in Article 33 paragraph (3) of the 1945

Constitution of the Republic of Indonesia which

affirms the role of the state in managing and

regulating land, that the land, the waters and the

natural resources within shall be under the powers of

the State and shall be used to the greatest benefit of

the people (Parlindungan, 1998).

One of the roles of the State in managing and

regulating land is in land registration or certification

of waqf land that has not registered. Waqf is one

form of Islamic legal institutions. Therefore the

provisions regarding waqf are also derived from the

requirements of the teachings of Islam.

The definition of waqf according to Law Number

41 of 2004 concerning Waqf, namely "Waqf is a

wakif legal act to separate and/or surrender some of

his property 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 sharia ".

Wakaf may be in the form of fixed assets or

movable properties such as shares, bond or money.

Wakif, the person/organization/legal entitiy who

donates the wakaf, donates the wakaf to the Nazhir.

The Nazhir is responsible for the overall

management of the wakaf. The Wakaf’s pledge

(ikrar) will become legal once embodied in the form

of Deed, wrapped up by the officer in charge in

drafting the deed and reporting it to the Minister of

Religious Affair, the “PPAIW”. The Law also

establishes the independent Indonesian Wakaf Board

(the “Board”). The Board is to be responsible for

developing the wakaf system and the overall

management to ensure and maintain efficiency and

the effectiveness of the endeavour.

For the people of Indonesia whose majority of

people are Muslims, waqf is one of the services

which has a social dimension in Islam.

Rangkuti, A., Ismail, I. and Pasaribu, M.

Implementation Certiﬁcation of Waqf Land in Medan City.

DOI: 10.5220/0010101618091814

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

1809-1814

ISBN: 978-989-758-449-7

1809

Waqf practices that occur in people's lives have

not been entirely run in an orderly and efficient

manner so that in various cases the waqf property is

not adequately maintained, neglected or turned into

the hands of a third party by unlawful means. Such a

situation, not only because of negligence or inability

of the nazir in managing and developing

endowments but also because of the attitude of

people who do not care or do not understand the

status of waqf property that should be protected for

the general welfare by the purpose, function, and

allotment of waqf.

Some of the problems that occur in the city of

Medan are the maximum role of waqf in

empowering people's economy with the following

factors:

 In general, the community does not understand

the law of waqf correctly and adequately, both

regarding harmony and the conditions of waqf,

and the purpose of the endowment of waqf.

 Currently, the management and management of

waqf in Indonesia is still a concern. As a result,

quite a lot of property of waqf is neglected in its

management; even there are lost waqf assets.

One of the causes is its nonprofessional

management.

 In general, the land represented by Muslims in

Indonesia is only enough to build mosques or

musholah, so it is difficult to develop. In

Indonesia, there are still few people who forgive

property other than land (immovable property),

whereas in fiqih the feature that may be

represented is very diverse including valuable

letters and money.

 In waqf, one of the most critical elements is

Nadzir. Nadzir is a person entrusted with the task

of managing, managing, and maintaining waqf

property. Functioning or not waqf is very

dependent on the ability of nazir. In various

countries whose waqf can develop and function

to empower the people's economy, waqf

managed by a professional nazir.

Deviations often occur in the implementation of

waqf in the community. The misappropriation of

waqf property caused the difference by Nadzir or the

descendants of Nadzir. Also, irregularities can also

occur in the form of deviations in usability or waqf

functions. Therefore, the government made a

regulation on waqf that aims to secure waqf property

and encourage Indonesian people to carry out waqf

as an embodiment of carrying out worship because

of Allah.

The main problems that will be elaborated on

further in this paper are: How is the procedure for

the registration of waqf land in Medan City?

2 RESEARCH METHODOLOGY

This research is uses legal methods. The nature of

this research is a descriptive analysis of the purpose

of this research is expected to obtain a detailed and

systematic description of the problems to be

examined. Data collection is done with literature and

empirical. Literature data is collected through

various laws and regulations relating to land and

waqf land. Practical data collection was obtained

from the Medan City National Detention Agency

and used as a support in this study. The data is then

analyzed qualitatively. The analysis is intended

based on the description; the facts obtained will be

carefully examined to answer the problem. Research

done for this writing constitutes normative (Ibrahim,

2006) legal research (Soemitro, 1998) which

analyzes legal materials (Soekanto & Mamudji,

2011) and then conducts library research that in

return, all of these are connected to one-another in

such a way to determine and solve the problem that

have been formularized.

3 RESULT AND DISCUSSION

Government Regulation No. 28 of 1977 concerning

Owned Land Representation contains provisions of

Islamic law concerning the representation of land

owned and functions as the legal basis for the

ownership of property in Indonesia. The regulation

of Waqf is further regulated in Law Number 41 of

2004 concerning Waqf. The law stipulated that waqf

legal acts must be recorded and outlined in the deed

of endowments and registered and announced, the

implementation of which is carried out by the

procedures stipulated in the legislation governing

waqf and must be implemented. The implementing

regulation of Law No. 41 of 2004 concerning Waqf

is the Republic of Indonesia Government Regulation

Number 42 of 2006 concerning Implementation of

Law Number 41 of 2004 concerning Waqf.

Government Regulation No. 28 of 1977 requires

waqf to be carried out verbally and in writing before

the official making the waqf pledge need to be

subsequently made an endowment deed. Based on

the waqf pledge deed, the land ownership rights

have been amended to the National Land Agency

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after fulfilling the administrative requirements to be

changed to a waqf certificate.

The development of waqf land registration issues

is now getting more legal certainty after the Ministry

of Agrarian Affairs and Spatial Planning / Head of

the National Land Agency recently issued a new

regulation concerning the procedures for waqf land

certification, namely the Regulation of the Minister

of Agrarian Affairs and Spatial Planning / Head of

the National Land Agency of the Republic of

Indonesia Number 2 of 2017 concerning Procedures

for Registration of Waqf Land in the Ministry of

Agrarian Affairs and Spatial Planning / National

Land Agency.

The Ministry of Agrarian Affairs and Spatial

Planning / Head of the National Land Agency

recently issued a new regulation concerning the

procedures for the certification of waqf land. The

law stipulated on February 13, 2017, is entitled

Regulation of the Minister of Agrarian and Spatial

Planning / Head of the National Land Agency of the

Republic of Indonesia Number 2 of 2017 concerning

Procedures for Land Registration for Waqf in the

Ministry of Agrarian Affairs and Spatial Planning /

National Land Agency.

In this regulation, the procedure for registration

of waqf land originating from Customary Property

and Land Ownership is not regulated; Right to

Cultivate, Right to Build, and Right to Use on State

Land; Right to Build or Right to Use on land of

Management Right or Ownership Rights; Ownership

Rights of Flats; and State Land.

In Article 2 the regulation states that the Right to

Land that has been represented has been deleted

since the date of the Waqf Pledge and its status

becomes a Waqf object. Furthermore, PPAIW in the

name of Nazhir conveyed AIW or APAIW and other

documents needed to register Land of Endowments

on behalf of Nazhir to the Land Office, within 30

(thirty) days after the signing of AIW or APAIW.

In carrying out certification of waqf land

procedures carried out on waqf lands that have been

certified are different from waqf lands that have not

been confirmed. About waqf lands that have already

been approved, the procedure carried out in

duplicate in making waqf certificates is enough to

submit an application for waqf land registration to

the Head of the National Land Agency. Whereas for

lands that have not yet been issued with a procedure

that must be carried out in the framework of making

a waqf certificate, the application for the registration

of waqf land is accompanied by an application for

registration of the rights to the Head of the National

Land Agency. So in the making of the waqf

certificate that the land has not been certified, there

are two applications at the same time which must be

submitted, namely the application for waqf land

registration and the demand for registration/

conversion/affirmation of the right to the land being

represented.

The period of registration of waqf land until the

issuance of the waqf certificate for property that has

been certified is faster than the area that has not been

confirmed. For land that has already been approved,

the period is 20 days, while for property that has not

been certified, the period is 120 days. With the

registration and the registration of the waqf in the

Office of the National Land Agency in the certificate

of ownership of the land that has been represented,

the waqf land has substantial evidence of " waqf

certificate."

Especially in the city of Medan, currently, the

number of mosques is approximately 1,300 mosques

scattered in 21 sub-districts, meaning that the figure

shows that there are waqf lands on which the

mosque is built. Management and Empowerment of

waqf land is the responsibility of Nazhir waqf to

oversee, protect, and develop waqf property by its .

Allotment, including also administering waqf

property through certification of waqf land.

Furthermore, Nazhir can report the implementation

of his duties to the Indonesian Waqf Board (BWI).

Regulation of the Minister of Agrarian and

Spatial Planning / Head of the Republic of Indonesia

National Land Agency Number 2 of 2017

concerning Procedures for Land Registration for

Waqf in the Ministry of Agrarian Affairs and Spatial

Planning / National Land Agency can be seen in the

following figure:

Implementation Certiﬁcation of Waqf Land in Medan City

1811

Figure 1. The Stage of Registration and Certification of Waqf Land

Information:

a. PPAIW in the name of Nazhir registers the waqf

property to the authorized agency at the latest 7

working days after the waqf pledge deed is

signed by enclosing: the certificate concerned or

if there is no one may use the existing land

ownership proof documents, a copy of the Deed

of Endowments made by PPAIW and a

validation letter Nazhir.

b. In registering the representation of ownership

rights in the local Land Office, documents must

be submitted as requirements, namely:

 Application

 Certificate of the original Property

Rights of the land concerned.

 Waqf Pledge Deed made by local

PPAIW.

 Approval letter from the KUA of the

provincial sub-district regarding Nazhir in

question.

 A statement from the concerned that

the land is not in dispute, bond, confiscation

and is not guaranteed in a bank that is known

by the Village Head or other officials of the

same level, which is reinforced by the head

subdistrict.

 Power of attorney, if the application is

authorized.

 Waqif Identity (Photocopy of KTP

legalized by authorized officials)

 Nazhir Identity (Photocopy of KTP

sanctioned by authorized officials)

c. For land that has not been registered, the

requirements are the same as above but

because there is no Ownership Certificate,

then it is replaced with other written

evidence proving the existence of the

relevant rights, namely:

 Proof of Ownership Rights issued based

on the applicable Swapraja Regulations,

 Ownership Certificate issued based on

the Minister of Agrarian Regulation No.

9 of 1959, or

 Decree of Granting Ownership Rights

from authorized officials, both before

and since the enactment of the BAL,

with the obligation to register the rights

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granted, but has fulfilled the

requirements mentioned therein, or

 Extracting a Land Tax / Landrente,

girik, pipil, kekitir and Indonesian

Verponding before the enactment of

Government Regulation Number 10 of

1951, or

 Deed of Transfer of Rights made under

the hand that is marked by testimony by

the Customary Head / Village / Village

Head made before the enactment of this

Government Regulation accompanied

by the assignment of rights, or

 Waqf Pledge Deed / Waqf Pledge Letter

made before or since it began to be

implemented by PP No. 28 of 1977

accompanied by the right to be

represented, or

 Minutes of Bid made by an authorized

Auction Officer, whose land has not

been recorded with accompanying

rights transferred, or

 Deed of Transfer of Rights to Land

made by PPAT, whose property has not

been registered with attending the

assignment rights, or

 Letter of Appointment or purchase of a

parcel of land in place of an area taken

by the Regional Government, or

 A statement of land history that has

been made by the Land and Building

Tax Service Office, accompanied by the

assignment of rights, or

 Other forms of written proof of any

name as referred to in Article II, VI and

VII of the provisions of the BAL

Conversion, or 12. Additional evidence

of ownership issued and valid before the

enactment of the BAL, or

 Photocopy of the current UN SPPT.

d. The Head of the Medan BPN Office, after

receiving a letter of application from

PPAIW and examining the message and

attachment, noted the land ownership

representative in the existing land book and

recorded several documents in the land

certificate by the applicable regulation

regarding the ownership of the land. If the

application is submitted in conjunction with

the request for ratification of the

rights/conversion, then the registration of the

waqf is only done after the certificate is

issued. If the person represented is part of

his land, then the parcel of land is separated

first so that each has their license.

e. After the land representative is recorded in

the land book and the document, the Head of

the local Land Office issues proof of

registration of the waqf property and submits

the report to PPAIW to be recorded in the

List of Deed of Endowments in the District.

f. In the case that the waqf property is

exchanged or changed its designation, Nazhir

through PPAIW re-registers with the Head of

the local Land Office and the Indonesian

Waqf Board the endowments that are

transferred or altered for the purpose by the

applicable provisions in the procedure for

registration of the waqf property. The

function of the record of the waqf land is

primarily to obtain guarantees and legal

certainty regarding the area being

represented.

Based on the results of the agreement of waqf

land in Medan City, starting from February 2017

to July 2018, generated 51 area.

Months

Large

Area

Information

Februari

until

Desember

2017

Processing

Januari

until Juli

2018

Processing

Table 1. The result of Land Certification for Waqf

Land in Medan City

Constraints that arise in the registration of

waqf land in Medan City are related or not yet

met or have not fulfilled the conditions of waqf

carried out for the record of land rights. For

example, the waqf land that has not been made a

Waqf Pledge Deed or Substitution Deed of Waqf

Pledge by the Pledge Deed Making Official,

because the granting of the waqf was carried out

prior to the issuance of Government Regulation

Number 28 of 1977 and was carried out based on

a sense of sincerity and trust. Prior to the

publication of Government Regulation Number

28 of 1977 in every legal act, a representative

was not obliged to have written evidence, so that

when the waqf ruling was made it was difficult,

because the wakif and his heirs had died or even

in some cases, the waqf was unknown because

perwakafan was carried out twenty years ago and

objects The waqf is still used according to its

Implementation Certiﬁcation of Waqf Land in Medan City

1813

intended purpose, and the residents also know

that what used is an object that was represented

by someone in the past, neglect of waqf land

because Nazhir passed away and did not have

children, the origin of the area is unclear.

Every implementation of waqf after the

enactment of Law Number 41 of 2004 concerning

the waqf which the procedure for registration of its

rights is currently regulated by the Regulation of the

Minister of Agrarian and Spatial Planning / Head of

the National Land Agency of the Republic of

Indonesia Number 2 of 2017 concerning Procedures

for Land Registration for Waqf in the Ministry of

Agrarian Affairs and Governance The National Land

Agency / Agency, should be done before PPAIW

witnessed by 2 (two) witnesses expressed verbally

and / or in writing and set forth in the deed of

endowment by PPAIW.

4 CONCLUSION

A house worship or waqf land could be applied for

registration at the local Land office and even though

it not have a base of rights enough by attaching

physical mastery known to the sub district head or

the village head and two witnesses by attaching a

photocopy of witness ID card, no endowment deed

can be made a surrogate act of endowment, if there

is no management that is endorsed by the waqf

body, temporary control can be made. The role of

the Medan City National Land Agency starts from

the Servant, complaints, and information on land

cases, assessment of land cases, handling of land

cases, and resolution of land cases and legal actions

for the implementation of court decisions.

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Ibrahim, J. (2006). Teori dan Metodologi Penelitian

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Parlindungan, A., P. (1998). Komentar Undang-undang

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Setiawan, Y. (2009). Instrumen Hukum Campuran

(Gemeenschapelijkrecht) Dalam Konsolidasi Tanah

Raja Grafindo Persada, Jakarta

Soekanto, S., dan Mamudji, S. (2011). Penelitian Hukum

Normatif, Suatu Tinjauan Singkat Raja Grafindo

Persada, Jakarta.

Soemitro, R., H. (1988). Metodologi Penelitian Hukum

dan Jurimetri Ghalia Indonesia, Jakarta

Soerodjo, I. (2014). Hukum Pertanahan:Hak Pengelolaan

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LaksBang Mediatama, Yogyakarta

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