The Existence of Cash Waqf Law: Yuridical Analysis about the

Undang-Undang Nomor 41 Tahun 2004 on Wakaf

Hidayatullah and Afif Khalid

Law Faculty Of Islamic University Of Kalimantan MAB Banjarmasin

Keywords: Cash Waqf, Juridical Analysis, Waqf Law

Abstract: The existence of cash waqf law in the Undang-Undang Nomor 41 Tahun 2004 on Wakaf, in its

implementation there is a significant gap between the formulation of cash waqf and its implementation in

society. In waqf practice in Indonesia, most people only do waqf in immovable properties such as land and

buildings, so that this situation seems to rule out the existence of waqf movable property, such as money or

cash waqf. In addition, there are some crucial problems in the application of cash waqf, which implies the

stagnation of the implementation of cash waqf, so that the rule has not been followed by whole of

Indonesian Muslim community. This research is focused on the discussion about the management system,

problematics and weakness of cash waqf law in The Undang-Undang Nomor 41 tahun 2004 on Wakaf. This

study is a normative legal research which attributed by descriptive analytical, with normative juridical

approach. The Undang-Undang Nomor 41 tahun 2004 on Wakaf as a source of legal material as well as its

derivative regulation as well as other related references collected by library techniques. The method of

analysis of legal materials used is normativeanalysis.

1 INTRODUCTION

Cash Waqf is a waqf done by a person, group of

people, institutions, or legal entities in the form of

money. The term cash waqf is not known at the time

of the Prophet. Ccash waqf has only been practiced

since the beginning of the second century hijri.

Imam az Zuhri (died 124 H) was recommended that

the dinar and dirham waqf be used for the

construction of Islamic da'wah, social and

educational facilities. Besides al-Zuhri, the early

generation of Hanafi school also allowed the waqf of

dinar and dirham as an exception, on the basis of

Istihsan bi al-'Urf.

In the practice of waqf in Indonesia, most people

only do waqf of immovable objects such as land and

buildings, so that this situation seems to override the

existence of waqf of movable objects, such as cash

waqf. Cash waqf has only been implemented since

the Majelis Ulama Indonesia (MUI) issued the fatwa

that the cash waqf was jawaz (permissible).

Although in Indonesia the majority of Muslims are

Syafi'i schools, but it seems that in this cash waqf,

Islamic scholars and economic thinkers choose

opinions that allow cash waqf. This is reflected in

The Undang-Undang Nomor 41 tahun 2004 on

Wakaf.

But on its way there are some crucial problems

in the implementation of cash waqf, which have

implications for the stagnation of the

implementation of cash waqf, even though the rule

has not been followed by the Indonesian Muslim

community as a whole.

2 METHOD RESEARCH

2.1 Types and Nature of Research

This research is a library research that uses 3 (three)

legal materials, namely primary legal materials,

secondary legal materials and tertiary legal

materials.

The nature of this research is analytical descriptive.

That is research that is intended to provide data that

is as accurate as possible then analyzed by not

getting out of the scope of the problem and based on

the theory or concept of law.

490

Hidayatullah, . and Khalid, A.

The Existence of Cash Waqf Law: Yuridical Analysis about the Undang-Undang Nomor 41 Tahun 2004 on Wakaf.

DOI: 10.5220/0009023100002297

In Proceedings of the Borneo International Conference on Education and Social Sciences (BICESS 2018), pages 490-496

ISBN: 978-989-758-470-1

2.2 Sources of Legal Material

The data in this study are secondary data or legal

material, namely library material which includes

official documents, library books, legislation,

scientific papers, articles, and documents relating to

the research. The secondary legal material includes

three parts, namely:

2.2.1 Primary Legal Material

Primary legal material, namely binding legal

materials. The primary legal material in this study is

legislation on waqf, namely The Undang-Undang

Nomor 41 tahun 2004 on Wakaf.

2.2.2 Secondary Legal Material

Secondary legal material, which provides an

explanation of primary legal materials, namely legal

material that can provide an explanation of primary

legal materials. Secondary legal materials can be:

derivative regulations of The Undang-Undang

Nomor 41 tahun 2004 on Wakaf such as The

Peraturan Pemerintah Nomor 42 Tahun 2006 on

Pelaksanaan Undang-Undang Nomor 41 tahun 2004

on Wakaf, law books, legal journals, and papers law

or the views of legal experts contained in mass

media and the Internet.

2.2.3 Tertiary Legal Material

Tertiary legal material, namely material that

provides guidance and explanation of primary and

secondary legal materials; examples are dictionaries,

encyclopedias, cumulative indices and so on.

2.3 Techniques of Legal Material

Collection

The collection of legal materials is carried out

through document study (literature study) which

includes primary legal materials, secondary legal

materials and tertiary legal materials, namely by

conducting an inventory and identification of a

number of laws and regulations, legal documents,

legal records, results of scientific research and

literatures of legal science such as books, articles,

journals and research results that are related to the

research.

2.4 Analysis of Legal Material

After the legal material has been collected in full,

the next stage the researcher processes and analyzes

the legal material. Legal material analysis will use

normative analysis method, which is a way of

interpreting and discussing research results that

based on the understanding of law, legal norms,

legal theories and doctrines relating to the subject

matter of the research.

Legal norms are needed as a major premise, then

correlated with relevant facts (legal facts) which are

used as a minor premise and through the syllogism

process conclusions will be obtained against the

problem.

3 RESEARCH RESULT

3.1 Management System of Cash Waqf

Basically cash waqf is a breakthrough in The

Undang-Undang Nomor 41 tahun 2004 on Wakaf in

which cash waqf management involves three main

parties: wakif, nazhir who can act as investment

managers at the same time, and the mauquf alaih

(beneficiary) is distributed to the right parties.

In the Article 28 to Article 31 of The Undang-

Undang Nomor 41 tahun 2004 on Wakaf is

explained as follows:

(1) Wakif can endorse movable objects in the form

of money through Islamic financial institutions

appointed by the Minister.

(2) A movable waqf in the form of money is

carried out by Wakif with a statement of Wakif

will be carried out in writing.

(3) A movable waqf in the form of money is issued

in the form of a cash waqf certificate.

(4) Cash waqf certificates are issued and submitted

by Islamic financial institutions to Wakif and

Nazhir as proof of the delivery of waqf assets.

(5) Islamic financial institutions in the name of

Nazir register money waqf assets in the form of

money to the minister no later than 7 (seven)

working days since the issuance of the cash

waqf certificate.

The practice of cash waqf is done through the

LKS-PWU (Lembaga Keuangan Syariah Penerima

Wakaf Uang/ Sharia Financial Institution Receiving

Money Waqf). After the Wakif handed over the cash

waqf, then the LKS-PWU will issue and deliver the

cash waqf certificate to Wakif and nazhir as proof of

the delivery of waqf property (Article 29 paragraph

(3)).

Related to the management of cash waqf, in

Article 48 of The Peraturan Pemerintah Nomor 42

The Existence of Cash Waqf Law: Yuridical Analysis about the Undang-Undang Nomor 41 Tahun 2004 on Wakaf

491

Tahun 2006 on Pelaksanaan Undang-Undang Nomor

41 tahun 2004 on Wakaf has explained as follows:

(1) Management and development of waqf assets

must be guided by BWI (Badan Wakaf

Indonesia) regulations;

(2) Management and development of cash waqf

property can only be done through investments

in LKS products and / or sharia financial

instruments;

(3) In the event that the LKS-PWU receives cash

waqf for a certain period of time, Nazhir can

only carry out the management and development

of cash waqf property in the said LKS-PWU;

(4) Management and development of cash waqf

assets carried out in Islamic banks must follow

the program of deposit insurance institutions in

accordance with the laws and regulations; and

(5) Management and development of cash waqf

assets in the form of investment outside Islamic

banks must be insured on Islamic insurance.

One important aspect in the management of cash

waqf is The Lembaga Keuangan Syariah Penerima

Wakaf Uang (LKS-PWU). LKS-PWU is a shari'ah

Financial Institution recommended by The Badan

Wakaf Indonesia and approved and appointed by the

Ministry of Religion, LKS-PWU is obliged to report

how much is the profit sharing of cash waqf to BWI

and the Ministry of Religion, and the issues and

deliverys of Cash Waqf Certificates to Wakif and

Nazhir as proof of the delivery of waqf property, as

stated in the Articles 28 and 29 of the Undang-

Undang Nomor 41 tahun 2004.

The task of the LKS-PWU is as follows:

(1) Announcing to the public its existence as The

LKS of Cash Waqf Receiver;

(2) Providing the form of Cash Waqf Certificate;

(3) Receiving cash waqf in cash from Wakif on

behalf of Nazhir;

(4) Placing waqf money in a deposit account

(wadi'ah on behalf of Nazhir who is appointed

by Wakif;

(5) Receiving a statement of intent of the Wakif

which is stated in writing in the form of

Wakif’s will statement;

(6) To Issue The Cash Waqf Certificate and submit

the certificate to the Wakif and submit a copy

of the certificate to the Nazhir who appointed

by the Wakif; and

(7) Registering cash waqf to the Minister on behalf

of Nazhir.

Achieving cash waqf up to now has not reached

the maximum target and there are still many

problems that need to be addressed again. This is

due to many factors, including the lack of

socialization, the incompatibility of related

institutions such as the BWI and the LKS-PWU

which all this time should be aligned but in fact

running partially. LKS-PWU has its own rules and

BWI also has its own rules. The next factor is that

the LKS-PWU has not looked at cash waqf as a

good and attractive product so that the socialization

is less and little. In its implementation, the LKS-

PWU still has obstacles that affect its management.

Remembering the best potential of waqf fund, it is

necessary to have professionalization in its

management (in this case the Nazhir council).

Therefore in this regard, the existence of Islamic

banks is considered as an alternative institution that

is quite representative in managing the trust fund.

The role of Islamic banking in waqf investment has

at least several advantages that are expected to

optimize the operation of waqf investment as

follows:

(1) Office network.

The office network of Sharia banking is relatively

broader when compared to other Islamic financial

institutions. The network reaches 174 offices in

almost all regions of Indonesia and the growth rate

of the number of sharia bank offices reaches 2.1%

per month. Therefore, this phenomenon is an

important factor in optimizing the socialization of

waqf fundraising and distribution.

(2) Ability as Fund Manager

Banking institutions are public fund management

institutions. By itself, the institution must be an

institution that has the ability to manage funds and is

expected can play a role as an alternative institution

that has capablity in managing of waqf funds that

can be accounted for to the public, especially to the

waqif.

(3) Experience, Information Network and

Distribution Map.

Sharia banking is a banking institution that has

experience, information, and wide distribution maps

so that the management of cash waqf is expected not

only to optimize the management of funds, but also

to streamline the distribution as desired.

(4) Positive image.

With the three things above, it is hoped that it will

create a positive image on the cash waqf movement

itself and in Islamic banking in particular.

According to Antonio, Sharia Banks are more

appropriate if they are appointed to be investment

managers of cash waqf on the reasons that the sharia

bank is able to:

(1) Access Wakif prospective;

BICESS 2018 - Borneo International Conference On Education And Social

492

(2) Invest in waqf funds;

(3) Administer the beneficiary;

(4) Distribute the proceeds of waqf investment;

and

(5) Sharia bank has credibility in the public, and is

controlled by strict regulations.

Another aspect that also has an important role in

the cash waqf management system is Nazhir. At

present the efforts carried out by Nazhir in the

management, development and the allotment of

waqf property in order to realize the purpose and

function of waqf are very adequate, it's just possible

in the implementation still needs control and

supervision.

However, in addition to the efforts made by Nazhir

in his duties and responsibilities, improving the

quality of Nazhir and his empowerment is still very

much needed. Because Nazhir in the context of

management is human resources which is an

important factor in economic-business activities.

Furthermore, waqf must be handed over to people or

a special institution that has adequate competence so

that it can manage professionally and trustworthy.

The special institution which is intended in The

Undang-Undang Nomor 41 tahun 2004 on Wakaf is

the Badan Wakaf Indonesia (BWI). This institution

is expected to manage waqf productively and

professionally, especially cash waqf. In the

management of cash waqf, the Badan Wakaf

Indonesia (BWI) must cooperate with professional

institutions and sharia banks. Thus, the waqf

property can develop well and the results can truly

be felt by the people.

BWI in carrying out its duties and functions as an

embodiment of the implementation of cash waqf that

has been mandated by The Undang-Undang Nomor

41 tahun 2004 on Wakaf, has done the following:

(1) Collection of cash waqf at BWI

(2) Acceptance of cash waqf

(3) Management and allocation of cash waqf

Remembering the urgency of the benefits of cash

waqf in order to achieve the effectiveness and

efficiency of the implementation of cash waqf, a

strategy is needed in its management by the waqf

management institution, in this case the Badan

Wakaf Indonesia (BWI).

The management and development of waqf in

Indonesia requires the commitment of the

government, ulama and the people. In addition, it

must also be reformulated various matters relating to

waqf, including the assets endorsed, the designation

of waqf and Nazhir and the management of waqf

professionally.

3.2 Problems and Weaknesses of Cash

Waqf Law in the Undang-Undang

Nomor 41 tahun 2004 on Wakaf

3.2.1 Problems of Cash Waqf Law

Waqf has played a very important role in people

development, but the results of the study on waqf

management lately indicate that there are still waqf

that do not have a positive impact because it is not

managed properly. Waqf that are developing today

are more for ritual worship purposes in the form of

mosques and mushalla, while waqf for economic

empowerment of the people is less popular. There

even tends to be an assumption that waqf in the non-

mosque and mushalla lacks the value of its kindness.

This is partly due to mismanagement, and it is not

uncommon for misuse of waqf assets. So that the

result of the management of waqf assets decreases

and is not even enough to maintain the assets of

existing waqf assets, moreover to provide benefits to

the poor, or in other words cannot achieve the goals

set by the wakif.

According to Mustafa E. Nasution, the waqf

institution in the scope of the economy still has a

relatively small role, this is due to several things,

including:

(a) Various problems related to the management of

waqf institutions;

(b) The public is still tempted by the non-sharia

economic system;

integral: and

(d) Various problems related to fiqh waqf.

Professionalism in the management of waqf is

actually not easy, it requires an expertise,

seriousness and intense tenacity. For that, related to

the management of waqf in Indonesia, there are

several problems that we still encounter, including:

First, philosophically, it is related to the basics of the

permission of cash waqf in Islam, where it is never

regulated in Al-Qu'ran and Hadith, so that it

becomes dissent among ulama. Then the establishing

of cash waqf law was only based on Istihsan bil ‘urf

which was conceived by Hanafiyyah School, while

sociologically there is still a standard community

paradigm of waqf in the immovable objects which

arised from the difference of schools adopted by the

majority of Indonesian Muslims. The difference in

this school has resulted in many Muslims, who have

the Shafi'iyah School, who partially still have not

The Existence of Cash Waqf Law: Yuridical Analysis about the Undang-Undang Nomor 41 Tahun 2004 on Wakaf

493

participated in this cash waqf, because the cash waqf

was initiated by scholars from the Hanafiyah School.

Second, recognition of the existence of cash waqf

that is still not strong, lack of legal certainty in

several articles, and there are several articles that

still have not embodied the justice values, such as

the existence of Nazhir where there is injustice to

Nazhir in his status as the waqf manager, but his

legality as Nazhir is not accommodated by the State

or by the BWI, then Nazhir has no burden of

accountability so that it is appropriate in its

implementation there are still many Nazhirs who are

not serious in working. In addition, lack of Nazhir's

human resources also impacted Nazhir's

professionalism itself, and ultimately had a negative

impact on the empowerment of the cash waqf itself.

Third, the rules of cash waqf in the Waqf Law and

other things that are closely related are still weak

and unclear. These weaknesses can be found in the

rules of cash waqf in The Undang-Undang Nomor

41 tahun 2004 on Wakaf which only amounts to 5

(five) articles, which are considered less

representative.

3.2.2 Weakness of Cash Waqf Law in the

Undang-Undang Nomor 41 tahun 2004

on Wakaf

If we look at the application of the cash waqf law in

the lives of Indonesian people, it cannot be denied

that the implementation is still not fully successful,

as is the expectation of cash waqf positivisation

itself so that it is regulated in the Waqf Act. Cash

waqf should be accepted by the Indonesian people as

a whole, because it is a rule in the Act which must

be addressed by all Indonesians. If not, then it is

certainly reasonable to assume that this Waqf Act

still has significant lacks and weaknesses that are

difficult to implement.

Cash waqf as law which works in the

community, must have at least 3 (three) perspectives

from the legal function, namely:

First, as social control. In this perspective the

main function of a legal system is integrative

because it is intended to regulate and maintain social

regulation in a social system. Therefore, Bergers

said, that there is no society that can live forever

without the social control of the law as a means.

Furthermore according to Parsons, as quoted by

Campbell, so that the law can carry out the control

function, suggests there are 4 (four) functional

prerequisites of a legal system, namely:

(1) The basic problem of legitimacy, which concerns

the ideology that is the basis for the arrangement

of the rule of law;

(2) The problems of the people rights and

obligations that are subjected to legal regulation

of the legal process;

(3) The sanctions and institutions that implement

these sanctions, and

(4) The authority to enforce the rule of law.

Second, as social engineering. Satjipto Rahardjo,

stated that there were 4 (four) main requirements

that had to be fulfilled so that a rule of law could

direct a society, namely hearing ways:

(1) A good depiction of a situation faced;

(2) Analyze assessments and determine levels of

values;

(3) Verification of hypotheses; and

(4) There is a measurement of the effectiveness of

the applicable law.

Third, the perspective of public emancipation

toward the law. This perspective is the bottoms up

view of the law, the law in this perspective includes

objects of study such as legal capacity, legal

awareness, law enforcement and others.

By adopting the core of these 3 (three) legal

perspectives, it is theoretically possible to say that

empowering cash waqf in a legal perspective has

failed to integrate interests that are a prerequisite for

the functioning of a legal system both as a control,

and in directing the community in accordance with

the objectives law. So that this becomes a fatal

weakness for the cash waqf law which is

accommodated in the Waqf Act.

We can see that the Waqf Law until now is seen

as still closing for the general public to control

(social control), because it is not regulated in the

contents or articles of the Waqf Act. If something

goes wrong, deviations from the management of

waqf, both individuals and institutions or legal

entities, the community cannot take legal action,

such as class action. Furthermore, the rules of the

cash waqf have not been given a barometer on the

effectiveness of the application of the waqf law

which regulates the cash waqf. This is certainly not

in accordance with the legal perspective as social

engineering. Finally, in terms of the perspective of

public emancipation toward the law, rules of the

cash waqf still do not have the legal ability to make

people aware to the importance of cash waqf for

themselves, nation and state.

Based on the description described above, the

researcher can assess that the lacks and / or

weaknesses of the law of the regulation on cash

waqf will have a negative impact on the

BICESS 2018 - Borneo International Conference On Education And Social

494

management of waqf in Indonesia, therefore the

government is obliged to make modifications or

reconstruction of the cash waqf law so that it can be

accepted and run effectively in the lives of Muslims

in Indonesia, which ultimately the benefits can be

felt by all Indonesian people. Modification or

reconstruction is to find the right solutions, effective

and efficient in addressing the waqf problems in

Indonesia, especially regarding cash waqf.

4 CONCLUSIONS

1. There are several important aspects in the money

waqf management system in Indonesia, among

others, is Lembaga Keuangan Syari’ah Penerima

Wakaf Uang (LKS-PWU) which is tasked with

socializing, receiving and administering cash

waqf; Nazhir of cash waqf who has the duty and

obligation to maintain, manage cash waqf in

accordance with its allotment, and channel the

benefits to the rightful community (mauquf

alaih), as well as the Badan Wakaf Indonesia

(BWI) which is tasked with collecting, managing

and developing cash waqf. However, these three

aspects seem not to be aligned so that it becomes

an obstacle in the development of money waqf.

2. There are several problems in the cash waqf law,

among others: First, the basis of the

permissibility of cash waqf in Islamic teachings

is only based on Istihsan bil 'urf which was

initiated by Hanafiyyah School, while the

majority of Indonesian Muslims are Syafi'iyah so

that the Indonesian Muslim community has no

intention to participate in this cash waqf. Second,

the recognition of the existence of cash waqf that

is still not strong, lack of legal certainty

guarantee in several articles, and there are

several articles that still have not embodied the

justice values. Third, the lack of Nazhir's human

resources ability also had an impact on Nazhir's

professionalism, and ultimately also had a

negative impact on the empowerment of the cash

waqf itself. Fourth, the rules of cash waqf in the

Waqf Law and other things that are closely

related are still weak and unclear. These

weaknesses can be found in the rules of cash

waqf in The Undang-Undang Nomor 41 Tahun

2004 on Wakaf which only amounts to 5 (five)

articles, which are considered less representative.

Meanwhile there are some weaknesses of the

cash waqf law in The Undang-Undang Nomor 41

Tahun 2004 on Wakaf, that is theoretically, this

rule fails to integrate the interests which are the

prerequisites for the proper functioning of a legal

system as a social control, this is certainly not in

accordance with the legal perspective as social

engineering. Finally, in terms of the perspective

of public emancipation toward the law, the rules

of cash waqf stipulated in the waqf law still do

not have the legal ability to make people aware

of the importance of the cash waqf for the

people, nation and State.

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