Saturday, February 13, 2010

The Indonesian Legal Perspective on Waqf (Islamic Endowments)

The Indonesian Legal Perspective

on Waqf (Islamic Endowments)

by Rifyal Ka‘bah*

In addition to zakat (Islam’s obligatory poor-due tax, used for the benefit of the Muslim community) and infaq/sadaqah (types of voluntary charity), Waqf (pious endowments) constitutes an Islamic financial institution which has firmly established itself in Indonesia. Islam’s religious message highly emphasizes solidarity and brotherhood, while recognizing that everyone was created by Allah (how perfect and exalted He is) for the purpose of worshipping Him. One way this manifests itself is through economic and financial institutions which seek to assist the community of fellow believers, as well as benefit the whole of humanity.

Waqf has long played an important role in developing community spirit (jama‘ah). It has been able to preserve the community’s identity, assist the less fortunate members of society, and advance the field of education. It has played such a role not only in Indonesia, but throughout most of the Muslim world. Unfortunately, in the colonization era, waqf and other Islamic-based financial institutions did not receive much attention from the government. Gradual efforts to enable the institution of waqf to put charitable funds to good use began in Indonesia’s period of independence.

This paper provides general information about (waqf) Islamic endowments and the prospect of developing them in the context of national law. The points covered include, among others: the meaning of waqf, its connection with charitable foundations, efforts to develop it from the Islamic and Indonesian legal perspectives, and other related issues.

Waqf

The Arabic word waqf means الحَبْس al-habs (confinement, restrainment) or al-man المَنْع (prohibition), and entails allocating wealth for particular interests of the general public, or forbidding it from being used in a manner not specified by the bestower of the endowment. Furthermore, the endowment may not be reclaimed by its original owner. In West and North Africa, waqf which is employed in the public’s interest is known as habs (confinement). ‘Abd al-Jalîl ‘Abd ar-Rahmân ‘Ashûr stated that according to Islamic Law (shariah), waqf is “the restriction (of a Muslim) from having control over (a part of his) wealth and providing its use in charity, whether in its entirety, or only from its proceeds.”[1] Meanwhile, the famous Muslim economist, Monzer Kahf, defines waqf as “the holding and preservation of a certain property for the confined benefit of a certain philanthropy with the intention of prohibiting any use or disposition of the property outside that specific purpose.”[2]

Waqf constitutes sadaqah jâriyyah, namely a charitable contribution which produces rewards (for their noble deed) even after the person in question has died, as explained in an authentic Hadith.[3]

The experts of Islamic jurisprudence (fuqaha’) have come forth with two theories as to who owns endowed wealth/property. According to the first theory, endowed wealth/property is owned by the poor or needy in general. The second legal opinion holds that possession of waqf wealth/property returns to its original ownership, namely Allah (how perfect and exalted He is) as the owner of everything in the universe, and which may only be used for the purpose or by the persons for which the endowment was specified. From these two views, it can be concluded that waqf is not personal wealth or property, but that which belongs to a certain segment of society. For that reason, it must be administered by the public through a waqf body formed for that expressed purpose, in accordance with the stipulations of Islamic law.

The word waqf is also used to denote the wealth or property which is endowed (mawqûf). For instance, there can be an endowed mosque, endowed land, an endowed hospital, endowment funds, and others. Some of the fuqaha’ have stated that the oldest endowment in the world which still remains is the Ka‘bah in Makkah, which was built by Prophet Ibrahim, peace be upon him, together with his son, Prophet Ishma‘il, peace be upon him, as stated in the Qur’an (see Chapter 3, verse 96).

In a waqf foundation, one finds: (1) the endowment itself (al-waqf, al-habs) or the permanent wealth/property which is endowed (al-mawqûf), (2) the person making the endowment (wâqif), (3) an individual or group who benefits from the endowment (mawqûf ‘alayh) and (4) the statement (sighah) of the person making the endowment regarding the wealth/property which is being endowed, and to whom it is being endowed, in addition to being witnessed by at least two witnesses. In Islamic jurisprudence, these four things are called the rukn (integrals) of making an endowment. In a recent development, a fifth integral was introduced, namely the waqf manager (nâzhir, mutawallî), who is responsible to the public and the government for managing the endowed wealth/property. The reason for having a manager take such responsibility is to ensure that the endowment is administered based on justice, public accountibility, and transparancy.

Regarding waqf, first of all: property which is endowed should be able to last for a long period of time and be capable of yielding continuous benefit to the poor or needy. This includes, for instance, farmland, grazing land, fishable waters, constructions or buildings, money which can be invested, educational facilities, means of transportation, and the like. This wealth must be fully owned by the donator, be free from claim disputes, and may not be returned to the bestower of the waqf after it is endowed.

Second: The recipient users of the waqf are from the general public or certain social groups specified by the person bestowing the endowment. They are to receive charity from the proceeds made from the donated wealth/property (which has been endowed) and not directly from the donated wealth/property itself. This is one feature which distinguishes waqf from other forms of charity. Perhaps the one providing the endowment has noticed that a certain segment of society–in need of continual assistance–requires his attention. If he gives charity in the usual manner, the benefit will be temporary and afterwards that group will remain in need of further charity. For that reason, he allocates a part of his wealth (amounting to no more than one-third of his personal wealth) as charitable means to help others. The wealth/property which is given in charity will be maintained and even expanded in the hands of the manager who is entrusted with managing it (nâzhir, mutawalli).

Third: the beneficiaries of the endowment–as determined by the one making the endowment–can be varied, from being poor in general, to specific groups such as teachers, students, regular workers, and others. It is the initial means by which this charitable act is perpetuated, by establishing a perpetual source of funding or investment, the proceeds of which are used for humanitarian aid.

Fourth: A statement regarding the endowment is needed to convince the legal establishment that a person has truly allocated a part of his wealth/property as an endowment. This statement is witnessed and in this age must be written in a special document in the presence of public officials who have been assigned that task, resulting in the waqf document being officially noted.

Fifth: Special administration of waqf is needed because it is not personal wealth, but constitutes public wealth or that which is jointly held by the poor and needy. If it is not managed well, it is feared that the wealth will be lost, and as a result the future of the needy receipients will be uncertain, and the good intention of the bestower of the endowment will have been in vain.

The first endowment in Islamic history is the endowed mosque which was built by the Muslims in Quba in 622. Then came the endowment of the Prophet’s Mosque in Madinah, which is the second most important mosque after the Makkah Mosque (al-Masjil al-Haram).

The second type of waqf is charitable endowments (al-waqf al-khairî), such as public libraries, health service, schools, academies, and others. Someone named Mukhairiq living in the era of Prophet Muhammad, may the peace and blessings of Allah be upon him, ordered in his will that upon his death he would bequeath seven gardens in his posession to Prophet Muhammad. When Mukhairiq died in 626, the Prophet changed the status of those seven gardens to that of endowed land, the proceeds from which were allocated to the poor.

‘Umar bin Khattab once asked what the Prophet thought about some date trees which he obtained in Khaibar. The Prophet told him that if he (‘Umar) so desired, he could place the ownership of the trees into waqf, the proceeds of which would be allocated to the poor.[4] When the Prophet died in 632, many endowments could be found in Madinah and surrounding area.[5]

The third type of waqf is family endowments. When Cailiph ‘Umar wanted to bestow land in Khaibar as waqf, he called for his companions to witness the establishment of its endowment status. Jabir, may Allah be pleased with him, announced that if this endowment was made official, it meant that the entire parcel of land had been established as endowed land. Some of the companions present wanted the proceeds of the land–which now belonged to them–to provide for the needs of their grandchildren, while only that which was in excess would be given to the poor. This condition was approved by the companions present. This is what came to be known as the beginning of family endowments (al-waqf ah-ahlî).

Waqf and Charitable Foundations

Waqf and charitable foundations have the same nature, namely they both have a humanitarian mission and are not comercially oriented, such as companies or trade associations. Waqf and charitable foundations are two versions of the same thing, or perhaps two similar sides of the same coin.

A foundation is a “permanent fund established and maintained by contributions for charitable, educational, religious, research, or other benevolent purpose,”[6] which also goes by the names of charitable foundation, charitable trust, charitable organization and others. The words charitable, foundation, trust, and organization emphasize its non-profit nature. This is precisely like the addition of the word خيرى (charitable) after the word وقف in the Arabic, resulting in وقف خيرى (charitable endowments). as all waqf bodies aim at being charitable.

In Indonesia, before the introduction of Law No. 16 of 2001 regarding Charitable Foundations, foundations were often set up as a front to seek out personal riches, as an attempt to avoid taxes, and so on.[7] As a result, noble social goals, as stated in the foundation’s Bylaws/Statutes, in practice became a way to collecting wealth by less than noble means. This often resulted in an unhealthy competition between the foundation administrators, and in some cases ended up being resolved in the courtroom.[8] The same thing also happened regarding endowments which had been in existence for hundreds of years before the birth of the foundations.

Both charitable foundations and waqf are social institutions which have an enticing amount of assets for seekers of wealth. As the two are public wealth which involve many interests and are suceptible to deviant use, it became necessary to regulate them through state law. The regulatory function is the main function of the legal system in public life.

In Law No. 16 of 2001 regarding Charitable Foundations it is firmly stated that a foundation is “a legal body which is founded on wealth which is set aside and allocated to achieve a certain purpose in the social, religious, and humanitarian fields, and which does not have a membership.” (Article 1 clause (1)) “which has organizational bodies consisting of a Leader, Administrator and Overseer” and “may not distribute the proceeds of business activities to the Leader, Administrator and Overseer.” (Article 3 clause (2)).

In Law No. 16 the following can be found regarding waqf:

1. Article 15 clause (3): “In the matter of Foundation wealth originating from endowments, the word ‘waqf’ may be added after the word ‘Foundation’.”

2. Article 26 clause (2)b states that one type of Foundation wealth comes from endowments.

3. Explanation of Article 26 clause (2)b: “What is meant by “waqf” is endowments from people or legal bodies.”

4. Article 26 clause (3): “In the matter of Foundation wealth which originates from endowments, then the stipulations on waqf laws are applicable.”

5. Explanation of Article 26 clause (3): “Foundation wealth originating from endowments, not including money from bankruptcy cases.”

As mentioned above, waqf and charitable foundations have the same essence, namely funds which are collected for charitable purposes. In the Arab world, waqf and charitable foundations have the same meaning. In Egypt, for instance, there is the Coptic Orthodox Endowment Institution (هيئة أوقاف الأقباط الأرثذكسى) and the Non-Muslim Endowments (الأوقاف لغير المسلمين). In North America, where the Muslim community is in the minority, waqf has been developed as a uniquely Islamic financial instituiton, but is registered as a foundation.[9] This may resemble the status of a “Waqf Foundation” in Indonesia, as mentioned in Article 15 clause (3) Law No. 16 of 2001.

The fact that there is waqf which is distinct from charitable foundations in Indonesia cannot be separated from the dual legal system which came into effect in the times of the Dutch Colonial Government. In the Dutch period, and even today under Law No. 16 of 2001, charitable foundations are under the supervision of the Ministry of Justice, and disputes over them are settled by the local State Administrative Court. Meanwhile, waqf was under the supervision of the Office of Indigenous Affairs (Het Kantoor voor Inlandsche Zaken) and at present is under the Ministry of Religious Affairs. Waqf disputes are settled through the local Religious Court. It appears that up to present times Indonesia has maintained this dualism through Law No. 16 of 2001 and the Proposed Bill on Endowments which has been prepared by the Government (c.q. the Ministry of Religious Affairs).

Waqf di Indonesia

Waqf is the second-oldest Islamic institution in Indonesia after (or together with) the institution of marriage. Since the earliest times, there was endowed mosques, communal buildings and burial land in several regions of Indonesia. Then came endowed lands for Islamic boarding schools and madrasah, endowed farmland to fund Islamic education, as well as other sorts of endowments.

When the Dutch began to colonize Indonesia about three centuries ago, waqf as an Islamic financial institution was already to be found in a number of regions in Indonesian. With the establishment of the Priesterraad (Religious Council/Court) based on Staatsblad No. 152 of 1882, in effect matters of waqf fell under its jurisdiction, in addition to matters pertaining to marriage, inheritance, gifting, charity and other matters seen as being closly connected to Islam.[10] The Dutch made this recognition due to the fact that the resolution of disputes over endowments and other matters related with Islamic law were taken up by the public with the Shariah Court or local Religious Court, which went by different names in various regions of Indonesia.

In the independence period, the matter of waqf received abundant attention from the national government, for one, through the Ministry of Religious Affairs. For thirty years, beginning in 1960, a number of Laws, Government Regulations (PP), Ministerial/Gubernorial Instructions and others were issued, which for one reason or another had something to do with endowments.

These regulations include, among others:[11]

1. Law No. 5 of 1960 regarding the Basic Regulations on the Fundamentals of Agrarian Affairs (State Gazette 1960-104, Supplement 2043).

2. Government Regulation No. 10 of 1961 regarding Land Registration (State Gazette 1961-28, Supplement 2171).

3. Government Regulation No. 38 of 1963 regarding the Naming of Legal Bodies which may hold Property Rights (State Gazette 1963-61, Supplement 2555).

4. Government Regulation No. 28 of 1977 regarding Endowing Privately Owned Land (State Gazette 1977-38, Supplement 3107).

5. Regulation of the Minister of Agrarian Affairs No. 6 of 1965 regarding Basic Guidelines on Conducting Land Registration as regulated in Government Regulation No. 10 of 1961.

6. Regulation of the Minister of Home Affairs No. 6 of 1977 regarding the Procedures on Land Registration in regards to Endowing Privately Owned Land.

7. Regulation of the Minister of Religious Affairs No. of 1978 regarding Regulations on Implementing Government Regulation No. 28 of 1977 regarding Endowing Privately Owned Land.

8. Regulation of the Head of the National Body for Defense Number 2 of 1992 Regarding Land Registration Fees.

9. Decree of the Minister of Religious Affairs No. 73 of 1978 regarding the Delegation of Authority to the Head of the Provincial Offices of the Ministry of Religious Affairs (or their equivilent) throughout Indonesia to appoint/dismiss Heads of the Offices of Religious Affairs (KUA) at the District Level as Officials for Issuing Acts of Pledged Endowments (PPAIW).

10. Decree of the Minister of Religious Affairs No. 326 of 1989 regarding the Formation of Coordinating Team for Administering Endowed Land for all of Indonesia at the Central Level.

11. Decree of the Minister of Religious Affairs No. 126 of 1990 regarding the Final Revision to the Appendix of the Decree of the Minister of Religious Affairs No. 326 of 1989 regarding the Composition of Personnel of the Coordinating Team for Administering Endowed Land for all of Indonesia at the Central Level.

12. Decree of the Minister of Religious Affairs No. 196 of 1991 regarding the Final Revision of the Appendix of the Decree of the Minister of Religious Affairs No. 126 of 1990 regarding the Composition of Personnel of the Coordinating Team for Administering Endowed Land for all of Indonesia at the Central Level.

13. Joint Instruction of the Minister of Religious Affairs and the Minister of Home Affairs No. 1 of 1978 regarding the implementation of Government Regulation No. 28 of 1977 regarding Endowing Privately Owned Land.

14. Instruction of the Minister of Religious Affairs No. 3 of 1979 regarding Instructions for Implementing the Decree of the Minister of Religious Affairs No. 73 of 1978 regarding Delegating Authority to the Heads of Offices of Religious Affairs (KUA) at the District Level as Officials for Issuing Acts of Pledged Endowments (PPAIW).

15. Instruction of the Minister of Religious Affairs No. 3 of 1987 regarding the Vow to Guide and Establish Religious Legal Bodies and Legal Religious Bodies which own Land.

16. Instruction of the Minister of Religious Affairs No. 15 of 1989 regarding the Issuing of Acts of Pledged Endowments and Certifying Endowed Land.

17. Joint Instruction of the Minister of Religious Affairs and the Head of the National Body for Defense No. 4 of 1990 and No. 24 of 1990 regarding the certification of endowed land.

18. The Decree of the Director General for Guiding the Muslim Community and Hajj Affairs No. 15 of 1990 regarding the Final Revision to the Forms and Handbooks for Implementing Regulations regarding Endowed Privately Owned Land.

19. Letter of the Directorate General for Guiding the Muslim Community and Hajj Affairs No. D11/5/Ed/07/1981 regarding the Registration of Endowed Privately Owned Land.

20. Letter of the Directorate General for Guiding the Muslim Community and Hajj Affairs No. D11/5/Ed/11/1981 regarding Instructions on Issuing Numbers on Forms for Endowing Privately Owned Land.

21. Letter of the Directorate General for Guiding the Muslim Community and Hajj Affairs No. D11/1/KU.03.2/363/1986 regarding Revenue Stamps, Marriage Certificates, Acts of Pledged Endowments, Etc., with an attached copy of the Letter of the Director General of Taxes No. 5-401/Pj.3/1986 regarding Revenue Stamps, Marriage Certificates, Acts of Pledged Endowments, Etc.

22. Circular Letter of the Directorate General for Guiding the Muslim Community and Hajj Affairs No. D11/5/HK/007/901/1989 regarding Instructions on Changing/Exchanging the Status of Endowed Land.

23. Circular of the Directorate General for Guiding the Muslim Community and Hajj Affairs No. D/ED/BA.03.2/01/1990 regarding Technical Instructions of the Minister of Religious Affairs No. 15 of 1989 regarding Issuing Acts of Pledged Endowments and Certifying Endowed Land.

24. Letter of the Directorate General for Guiding the Muslim Community and Hajj Affairs No. DII/5/HK.00.4/2981/1990 regarding Public Officials who may sign Decrees regarding the Coordinating Team for Administering Endowed Land at the Provincial and Regency/City Level.

25. Circular Letter of the Directorate General for Guiding the Muslim Community and Hajj Affairs No. D/Ed/ KU.03.1/03/1990 regarding Where to Place Seals on Blank Waqf Forms with an attached copy of the Letter of the Director General of Taxes No. 5-165/Pj.5.3/1990 regarding Revenue Stamps, Marriage Certificates, Acts of Pledged Endowments, Etc.

It is stated in Article 33 clause (3) of the Indonesian Constitution that: “The land and water and natural wealth contained in them is controlled by the state and is used for the greatest possible level of public prosperity.” Land and other property which is endowed indirectly consitutes national wealth which is entrusted by the bestower of the endowment to be used in the best possible manner to enrich specific Muslim segments of society.

In Article 5 of Law No. 3 of 1960 it is stated that: “Agrarian laws which are in effect for the land, water, and skies is customary law, . . ., (and including) everything which makes good on the elements which are based on religious law.” Waqf is religious law which is recognized by customary law in Indonesia, in addition to the fact that customary law (al-‘urf) is a complementary source of Islamic law.

In Article 29 clause (1) of the same law it is clearly stated regarding land rights for sacred and social needs that: “Land rights for social and religious bodies, as far as they are used for activities in fields of social welfare and religion, are recognized and protected. It is also guaranteed that these bodies will receive sufficient land for buildings and its activities in the religious and social fields.” Waqf is one such religious and social institution which is recognized and protected by this law.

In Indonesia, before the issuing of the above regulations and laws, there was a lack of data on endowed land because waqf wealth/property was not yet being recorded at the national level. It often happened that endowed wealth/property fell into the hands of undeserving parties, or was misued for personal benefit.

With the introduction of Law No. 14 of 1970 regarding the Fundamental Stipulations on Judicial Authority, which states that Religious Courts are one of four court milieu in Indonesia, matter of waqf remained the business of the Religious Courts. Even though material laws on waqf did not yet exist, Article 14 of the law stated: “Courts may not refuse to investigate and try cases which are filed, with the reason that the law is vague or unclear, but it is incumbent upon them to investigate and try said cases.” With Law No. 7 of 1989 regarding Religious Courts, it is clearly stated in Article 49 clause (1) that waqf matters and charity are under the jurisdiction of the Religious Courts. Based on previously established practices, to which was added the enthusiasim of this second law, judges in the Religious Courts investigated waqf cases based on the fiqh (legal opinions of the Muslim jurists) which was predominant in Indonesia.

Efforts to produce a substantive written legal code in the field of endowments and other fields which were in the realm of the Religious Courts continued to be undertaken. One such effort was the Compilation of Islamic Law (KHI) based on Presidential Instruction No. 1 of 1991 and its implementation based on the Decree of the Minister of Religious Affairs No. 154 of 1991. Book III of the KHI dealt with waqf issues consisting of 5 (five) chapters and 19 (nineteen) articles (Articles 215-229). Chapter I contains General Stipulations; Chapter II is about the Function, Elements, and Conditions of Endowments; Chapter III is about the Waqf Procedures and the Registration of Endowed Items; Chapter IV is about Alterations, Resolving Disputes, and the Supervision of Endowed Items; and Chapter V contains Court Stipulations.

At present, the Government, through the Ministry of Religious Affairs, has prepared a Waqf Bill which constitutes an expansion of Book III of the KHI. This bill consists of 11 (eleven) chapters and 32 (thrity-two) articles. Chapter I contains General Stipulations; Chapter II is about the Function and Objective of Waqf; Chapter III is about Elements and Conditions of Waqf; Chapter IV is about Waqf-Managing Organizations; Chapter V is about Waqf Procedures and the Registration of Waqf Wealth/Property; Chapter VI is about Development and Empowerment; Chapter VII is about Alterations, Resolving Disputes and the Supervision of Endowments; Chapter VIII contains Criminal Stipulations; Chapter IX contains Other Stipulations; Chapter X is about Transfer Stipulations; and Chapter XI contains Closing Stipulations.

Closing Remarks

The Indonesian public and government should recognize waqf as a viable source of national wealth. In the past, long before the Republic of Indonesia was founded, this institution played a major role in preserving public morale and building solidarity. For the future, this role needs to be maintained and developed to a greater extent in the framework of national law and the principle of Bhinneka Tunggal Eka (Unity in Diversity).

Waqf as an Islamic institution which has thrived in Indonesia needs to be further regulated by a national law on endowments and other accompanying regulations on its implementation. In addition to the feasibility studies regarding the implementation of waqf which have already been carried out in Indonesia, a comparative study of other nations which have more experience in implementing waqf laws–for instance, Egypt, Jordan, and Turkey among others–is also needed.

&



* Presented in the Waqf Seminar at the Islamic University of North Sumatra (UISU) in Medan, on Monday, January 6, 2003.

[1] ‘Abd al-Jalîl ‘Abd ar-Rahmân ‘Ashûr, Kitâb al-Waqf (Cairo: al-Afâq al-‘Arabiyyah, 2000), p. 9 (حبس العين عن أن تملك لأحد من العباد و التصدق بمنفعتها ابتداء و انتهاء أو انتهاء فقط)

[2] Monzer Kahf, “Waqf” in The Oxford Encyclopedia of the Modern Islamic World, Vol. 4, John L. Esposito et. al. (eds.), New York, Oxford: Oxford University Press, 1995, pp. 312-313.

[3] CD-ROM Mawsû‘ah al-Hadits, Hadith related by Muslim No.3084. عَنْ أَبِي هُرَيْرَةَ أَنَّ رَسُولَ اللَّهِ صَلَّى اللَّهُ عَلَيْهِ وَسَلَّمَ قَالَ إِذَا مَاتَ اْلإِنْسَانُ انْقَطَعَ عَنْهُ عَمَلُهُ إِلاَّ مِنْ ثَلَاثَةٍ إِلاَّ مِنْ صَدَقَةٍ جَارِيَةٍ أَوْ عِلْمٍ يُنْتَفَعُ بِهِ أَوْ وَلَدٍ صَالِحٍ يَدْعُو لَهُ It is related from Abu Hurairah that Rasulullah s.a.w. said: “When a human being dies, his work comes to an end, except for three things: sadaqah jâriyah (ongoing charity), knowledge benefitted from, or a pious son who prays for him.”

[4] CD-ROM Mawsû‘ah al-Hadits, Hadith related by al-Bukhârî No. 2532 and Muslim No. 3085. أَنْ عُمَرَ بْنَ الْخَطَّابِ أَصَابَ أَرْضًا بِخَيْبَرَ فَأَتَى النَّبِيَّ صَلَّى اللَّهُ عَلَيْهِ وَسَلَّمَ يَسْتَأْمِرُهُ فِيهَا فَقَالَ يَا رَسُولَ اللَّهِ إِنِّي أَصَبْتُ أَرْضًا بِخَيْبَرَ لَمْ أُصِبْ مَالاً قَطُّ أَنْفَسَ عِنْدِي مِنْهُ فَمَا تَأْمُرُ بِهِ قَالَ إِنْ شِئْتَ حَبَسْتَ أَصْلَهَا وَتَصَدَّقْتَ بِهَا قَالَ فَتَصَدَّقَ بِهَا عُمَرُ أَنَّهُ لاَ يُبَاعُ وَلاَ يُوهَبُ وَلاَ يُورَثُ وَتَصَدَّقَ بِهَا فِي الْفُقَرَاءِ وَفِي الْقُرْبَى وَفِي الرِّقَابِ وَفِي سَبِيلِ اللَّهِ وَابْنِ السَّبِيلِ وَالضَّيْفِ لاَ جُنَاحَ عَلَى مَنْ وَلِيَهَا أَنْ يَأْكُلَ مِنْهَا بِالْمَعْرُوفِ وَيُطْعِمَ غَيْرَ مُتَمَوِّلٍ “‘Umar bin al-Khaththab obtained land in Khaibar, then he met with the Prophet, may the peace and blessings of Allah be upon him, and asked his opinion on the matter. He said: O Messenger of Allah! I have obtained land in Khaibar. I have never come by wealth so easily, and what do you order me regading this land? He replied: If you so desire, you may allocate it and give the proceeds from it in charity! Then ‘Umar used it to give charity. He never sold it, never gifted it, and never left it as an inheritance. With that land, he was able to give charity to the poor and close family members, emancipate slaves, use it in the cause of Allah, and for travellers and guests. There was nothing wrong for those who administered this land to eat from it based on goodness and to give food to those who did not have any money or possessions.”

[5] Munzer Kahf, passim.

[6] Hendry Campbell Black, Black’s Law Dictionary (St. Paul, Minn., West Publishing Co., 11th reprint 1997), p. 656.

[7] L. Boedi Wahyono and Suyud Margono, Hukum Yayasan antara Fungsi Karikatif atau Komersial (Jakarta: C.V. Novindo Pustaka Mandiri, 2001), pp. 1-2 and 117-118

[8] Some examples of cases involving charitable foundations and waqf which made it to the Supreme Court can be found in H.P. Pangabean, Kasus Aset Yayasan, Alternatif Penyelesaian Sengketa (Jakarta: Pustaka Sinar Harapan, 2001), pp. 10-155.

[9] Monzer Kahf, p. 313.

[10] Notosusanto, Peradilan Agama Islam di Djawa dan Madura (Yogyakarta: no publisher, June 1953), p. 7.

[11] Himpunan Peraturan Perundang-Undangan Perwkafan Tanah Milik published by Proyek Peningkatan Sarana Keagamaan Islam, Zakat dan Waqf, Jakarta 1994/1995.

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Concluding remark

1. Islamic law is deeply rooted in the history and legal culture of Indonesia. This is one of the factors that make Islamic law part of the national law of Indonesia at the present. To make Islamic law have more impact on national law, it is necessary to transform traditional fiqh studies into positive law of Indonesia.

2. Among the steps that have to be taken in this regard is to conduct research on the implementation of positive law during the time of the Islamic kingdoms and sultanates in the past, Indonesia in particular, in the light of the Islamization of legal science. In addition to that, an effort has to be made in accelerating the merger of the faculties of shari‘ah into the faculties of law. More studies on Islamic rule of law, Islamic legal procedures, Islamic courts and other related subjects are needed. Universities and Islamic research centres are required to support these studies. Hopefully, the State Institutes of Islamic Studies, for instance, will become the State Islamic Universities in future conducting research on the Islamization of knowledge and developing curricula towards truly modern Islamic universities. On other hand, some faculties of law which belong to some famous Indonesian universities like the University of Indonesia in Jakarta and Yogyakarta University in Central Java, have to be encouraged to consolidate shari‘ah studies into the domain of law. This is also in spite of various efforts to produce as many Islamic regulations and acts as possible through the legislative bodies: the MPR and DPR.



Ó To be presented at International Conference on Islamization of Human Sciences, organized by the International Islamic University Malaysia, Kuala Lumpur, 4-6 August 2000.

â Lecturer at the Faculty of Law, Yarsi University, Jakarta, and Faculty of Law, University of Indonesia, Jakarta.

[1] John Ball, Indonesian Legal History 1602-1848 (Sydney: Oughtershaw Press, 1982), p. 64.

[2] N.A. Baloch, Advent of Islam in Indonesia (Islamabad: National Institute of Historical and Cultural Research, 1980), pp. 56-57. A seminar on the advent of Islam in Indonesia held in Medan in 1983 concludes "that Islam had entered Indonesia for the first time during the first century of hijrah (seventh/eighth centuries) and directly from the Arab main land." A. Hasymi, Sejarah Masuk dan Berkembangnya Islam di Indonesia (Bandung: PT Alma‘arif, 1981), p. 7. So since the first century of Islam the Arabic words had been introduced to the people of the Indonesian Archipelagoe.

[3] Teuku Ibrahim Alfian, Wajah Aceh dalam Lintasan Sejarah (Banda Aceh: Pusat Dokumenasi dan Informasi Aceh, 1999), p. 49.

[4] Some names from West Sumatra can be mentioned here like ‘Abd al-Hamîd al-Hakîm who 6 volume of al-Mu‘în al-Mubîn (fiqh) and al-Bayân (usûl al-fiqh), and Mawardi Muhammad wrote Mustalah al-Hadits and then translated into Indonesian.

[5] Mohammad Daud Ali, "Hukum Islam dan Pembangunan Hukum Nasional: Suatu Analisas Terhadap RUU Peradilan Agama" in Hukum dan Pembangunan, No. 6, Tahun Ke-XIX, December 1982, p. 528.

[6] Ibid., p. 527.

[7] Penoh Daly, Hukum Nikah, Talak, Rujuk, Hadanah dan nafkah Kerabat dalam Naskah Mir’ât ath-Thullab Karya ‘Abd ar-Ra’ûf Singkel. A Ph.D. dissertation at the Faculty of Sharî‘ah, IAIN Jakarta, 1982), p. 26.

[8] This book was translated by Dutch orientalist, Van den Berg, into French, and then translated again into English by E.C. Howard, Minhâj-et-Tâlibîn: A Mannual of Muhammadan Law According to the School of Shafi‘î . Lahore: Law Publishing Company, n.t. A question why it was translated into French and not into Dutch, may be because of the different opinion between Van den Berg as an expert in law who favored the law of the people to be applied to them and the government which wanted to impose the Dutch law on their Muslims subject. By translating the book into French, he would like to inform the Dutch intellectual about the importance of the book and in the meantime he was able indirectly to escape from the government's attention.

[9] Mohammad Daud Ali, Hukum Islam (Jakarta: Rajawali Pers, 1993), p. 191.

[10] Departemen Agama RI, Kompilasi Hukum Islam Di Indonesia (Jakarta: Direktorat Jenderal Pembinaan Kelembagaan Agama Islam, 1995/1996), p. 124.

[11] [خطاب الله المتعلق بأفعال المكلفين طلبا أو وضعا] [الصفةة التى هى أثر ذلك] Muhammad al-Khudarî, Usûl al-Fiqh (Bairut: Dâr al-Fikr, 1988/1409), p. 18.

[12] Daniel S. Lev, translated into Indonesian by Nirwono and A.E. Proyono, Hukum dan Politik di Indonesia (Jakarta: LP3S, 1990), pp. 122-123.

[13] Agus Triyana, "Prospek Hukum Islam di Indonesia" in Jurnal Hukum Ius Quia Iustum, Faculty of Law, Yogyakarta Islamic University of Indonesia, No. 8 Vol. 5, 1997, p. 2.

[14] Simmuh, Mistik Islam Kejawen Raden Ngabehi Ronggowarsito (Jakarta: UI Press, 1988), p. 12.

[15] Moh. Idris Ramulyo, Asas-Asas Hukum Islam (Jakarta: Sinar Grafika, 1995), p. 38.

[16] F.V.A. Ridder de Stuers, Gedenkschrift van den Orloog op Java (Amsterdam: Johannes Müller, 1847), pp. 286-288.

[17] Ibid., p. 288.

[18] Ibid., p. 277.

[19] Busthanul Arifin, Pelembagaan Hukum Islam di Indonesia (Jakarta: Geman Insani Press, 1996), p. 35.

[20] John Ball, pp. 117-122.

[21] Ibid., p. 67.

[22] Busthanul Arifin, p. 72.

[23] Hazairin, Demokrasi Pancasila (Jakarta: Penerbit Rineka Cipta, 1990), p. 97.

[24] S. Takdir Alisjahbana, Kebudayaan Sebagai Perjuangan (Jakarta: PT Dian Rakyat, 1988), p. 11.

[25] ‘Abdullah Yusuf ‘Ali, The Holy Qur’an: Text, Translation and Commenary (Brendwood, Maryland: Amana Corporation, 1409/1989), p. 1297, foot note no. 4756.

[26] Article "Shari‘ah: Nature and Significance of Islamic law" in CD ROM Encyclopædia Britannica 1994-2000.

[27] Busthanul Arifin, "Membangun Ilmu Hukum Indonesia" in Rifyal Ka‘bah, p. xi-xiii.

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