The Legal Position of Waqf for Non-Muslims in Efforts to Increase Waqf Assets in Indonesia

This study examines the legal standing of waqf for non-Muslims contributing to the increase of waqf assets in Indonesia. It turns out that raising waqf funds can be accessed from non-Muslim funds that sympathize with the economic value of Islamic philanthropy. Waqf is a deed that is part goodness of Islam and has a socioeconomic dimension. The essence of waqf is to hold the core of waqf and develop the outcome, so that waqf assets do not just disappear. The form of waqf is exciting and has great benefits so that not only a Muslim who is interested in waqf, many non-Muslims also contribute through donations. However, scholars differ in opinions about non-Muslim waqf laws; besides that, the waqf law also does not mention the specificity of waqf only for Muslims. This research is qualitative research through a normative juridical approach through literature in analyzing the data obtained. So, the difference in opinion of the madzhab scholars is essentially allowing non-Muslim endowments if it is not intended for religious facilities such as mosques.


Introduction
The waqf (endowment) practice in Indonesia has gone through several periods; until now, waqf has become part of the tabarru contract (gratuitous contract), which has begun to be widely highlighted given the many benefits and potentials in Indonesia. This phenomenon can be seen from the many new instruments that have emerged in the development of the Islamic economy sector in Indonesia, which are associated with waqf both in substance and in terms, such as cash waqf linked sukuk, Islamic insurance benefit waqf, and micro waqf banks, one of which is a non-Muslim donor.
On January 25, 2021, the Indonesian government launched the National Money Waqf Movement (GWNU) program, which can be invested in the form of sharia investment. This movement is an effort to socialize the increase in waqf assets in Indonesia.
In the history of Islam, waqf has proven its role in several civilizational advances such as in the education, social, economic, cultural, and religious sectors. For example, in Medina, there are hotels and mosques which resulted from the development of Uthman bin Affan's wells waqf assets which were about 1400 years old. During the Ottoman period in Turkey, most of the planted land came from waqf assets; it was estimated for about 75%. 1 In addition, waqf has provided much access for academics to conduct research and education, which also helps them reducing dependence on financial assistance from the government. For example, in Egypt in the early 19th century, agricultural land waqf assets reached 1/3 of all existing agricultural land. Similarly, waqf assets are also in urban areas, economic centers, education, and health sectors. One of the developments of productive waqf results that significantly influences the education sector is al-Azhar University in Egypt. 2 Al-Azhar is evidence of well-managed waqf which finances its operational activities, especially education for years independently, so it does not rely on government assistance or payments from students. Al-Azhar even provides scholarships to students from all over the The Legal Position of Waqf for Non-Muslims Siska Lis Sulistiani DOI: 10.22373/sjhk.v5i1.9161 http://jurnal.arraniry.ac.id/index.php/samarah 359 world, including Indonesia. Another well-known institution for developing waqf in the education sector, especially in Indonesia, is the Gontor Islamic Boarding School.
Based on BWI data (Indonesian Waqf Agency), Indonesia's potential for waqf assets reaches 2000 trillion with a waqf land area of 420 thousand hectares. The potential for cash waqf is 118 trillion Rupiah. In addition, data from the Ministry of Religion of Indonesia explains that the amount of waqf land reaches 161,579 hectares. The area of waqf assets spread over 366,595 locations, and it is the largest waqf asset in the world. This enormous waqf asset could be a golden opportunity if managed and empowered productively, especially if it can continue to grow in quantity and quality of management and empowerment.
However, until recently, the amount of cash waqf fundraising in Indonesia collected by national scale waqf institutions has not yet reached this potential figure. For example, based on data from the Ministry of Religion in 2018, 3 the realization of cash waqf recorded from 2011 to 2018, an average of only IDR 31.9 billion per year. In addition, data on the waqf in each nadzhir (the party who administer and manage waqf asset) has not been integrated nationally.
The amount of waqf assets in Indonesia in total is inevitable considering the extensive natural and human resources in Indonesia, so ideally, it is directly proportional to the quality of the empowerment of the waqf. In addition, the increase in the number of waqf assets can continue to grow because of 2 things: the waqf object can be both movable or immovable objects, and in term of wakif (waqf donor), it can not only be done by Muslims, but there are opportunities for non-Muslims even with the terms and conditions set by the ulema.
Considering that many people want to donate part of their wealth, the benefits of the donated assets continue to flow without being exhausted in quantity and form. Therefore, not only a Muslim who wants to waqf their wealth and but also some non-Muslims. They donate and mention the term waqf in the donation and deposit it to an Islamic waqf management institution (nadzir). Even the World Islamic Economic Forum chairman, Tun Musa Hitam, said that waqf could be a bridge between  In Law no. 41 of 2004 concerning waqf or Waqf Law, it is not clearly stated that the conditions for wakif or the person who does endowment must Even in Article 8 of the Waqf Law, it is stated that individual waqf is people who meet the requirements of being an adult, sane, healthy, not hindered from carrying out legal actions, and the rightful owner of waqf property. Based on this article, there is an opportunity for waqf managers (nadzir) to receive waqf from non-Muslims as an effort to increase the number of waqf assets for the benefit of the people, especially in Indonesia.
The research method used in this paper is a qualitative research method, through a normative juridical approach that collects various sources related to waqf, namely Law no. The study uses a library research method data processing. Literature sources are used to analyze this waqf research problem. Besides, in analyzing the data, the method of legal interpretation and the theory of maslahah in filling the legal vacuum also play a role in analyzing the theme of writing this non-Muslim waqf.
Based on those reasons, the authors are interested in discussing a topic on non-Muslim waqf with the title "The Legal Position of Waqf for Non-Muslims in Efforts to Increase Waqf Assets in Indonesia." From literature related to the theme of non-Muslim waqf, it was only found research related to non-Muslim waqf in the context of micro waqf banks, waqf in non-Muslim countries, and the study of Wahbah Zuhaili's thoughts regarding non-Muslim waqf. 6 This shows that the writing non-Muslim waqf in increasing waqf assets in Indonesia is different from existing studies.

The Legal Position of Waqf for Non-Muslims
Siska Lis Sulistiani DOI: 10.22373/sjhk.v5i1.9161 http://jurnal.arraniry.ac.id/index.php/samarah 361 means something detained or prevented, meaning that the benefits or essence of property are extracted in Allah's way (for good deeds) without consuming the property itself. 7 In this context, the word waqf indicates that it cannot be inherited, donated, and sold, and the benefits can repeatedly be extracting.
Terminology, waqf means an act of holding an asset from transferring or using, to utilize the result yielded from the asset for the shariah-compliant project. However, some of the Hanafi schools view waqf as an attempt to use some of Allah's wealth and donate it to others. In contemporary legal language, waqf means giving, carried out at the heirs' will, to get closer to Allah SWT. Waqf is also defined as property dedicated to various purposes both for worship as well as for humanity. Waqf is once in forever, or irrevocable assets by someone as a manifestation of religious observance. 8 Based on the Waqf Law, waqf is a legal act of wakif to separate or hand over part of his property to be used perpetually or for a specific time under his interests for worship and public welfare according to sharia.
In Article 1 paragraph (1) PP No. 42 of 2006, it is stated, "Waqf is a legal act of wakif to separate and hand over part of his property to be used forever or for a certain time in accordance with his interests for worship and public welfare according to the Sharia." From the understanding in the Waqf Law, it is stated that the period of waqf can be made within a certain period. This is different from Article 215 of the Compilation of Islamic Law (KHI), which states "a legal act of a person or group of people or a legal entity that separates part of his property to institutionalize it forever for worship or other public purposes in accordance with Islamic teachings." The different definition between the waqf law and KHI is in the time; the waqf law does not mention the word forever as stated in the KHI. So, according to waqf law, waqf does not have to be eternal. It can also be done within a certain period. Therefore, it is possible to develop the waqf in the future, and the most important thing is to maximize the results of the waqf object without reducing the value and form of the waqf object itself. Thus, waqf aims to provide benefits to people who are entitled to and used in the Sharia-compliant projects, not only for the benefit of worship but also for the general welfare. This influences the variety of waqf practices in various countries dynamically.
As the legal basis for waqf, Qur'an does not explicitly mention about waqf. Instead, the scholars use general verses of the Qur'an as the basis of waqf in Islam. Such as the verses related to almsgiving, donation, disbursement, and charity. The scholars interpret that waqf is included in the scope of the other verse. 9 The verses of the Qur'an related to the waqf are as follows: "O you who have believed, bow and prostrate and worship your Lord and do good -that you may succeed.". (QS. Al-Haj: 77) In his Tafsir (interpretation), Al-Qurtubi interprets the word 'al-birra' or do good as a suggestion from Allah SWT for humans to do all good deeds, including endowing his property. This verse is one of the verses that underlies the Islamic law of waqf. 10 From the hadith, several things can be understood related to waqf, including the core of waqf, namely the main assets and its benefits, the ownership status, the consequences of managing waqf assets, the mechanism of waqf assets, which cannot be sold, granted, and inherited. In addition, the waqf manager has the right to earn from the waqf assets as long as it is not excessive and does not intend to take over ownership. The waqf asset is movable and immovable objects, recently cash waqf is planned, and the time of waqf can be eternal and temporary. 12 The word 'sadaqah jariyah' in the hadith is meant to include waqf charity. In waqf, the core of the assets is permanent, while the benefits of the assets that are donated can continue to flow and provide benefits to those who need it, so that the wakif still gets a reward for his sadaqah jariyah even though the donor has died. 13 The legal basis for waqf in Indonesia includes Law no. 41 of 2004 concerning waqf, which is the basis for empowering the management and development of waqf in Indonesia. However, from the existing regulations, it is not clearly stated that the opportunity for waqf is only for Muslims, but there are opportunities for waqf among non-Muslims, and based on Article 2 of the Waqf Law, the provisions on this matter are referred to the Sharia. In

Waqf Legal Provisions
In the study of waqf law, waqf is valid if it has fulfilled the pillars and conditions. According to AAOIFI, there are four pillars of waqf, 15 as agreed by the majority of ulema: Wakif (Donor), Mauquf 'alaih (The receiver), Mauquf (Wealth/Property), Sighat (a statement to endow the property). 16 Article 6 of the Waqf Law states that waqf can be implemented by fulfilling the waqf elements, as follows: Wakif (Donor), Waqf manager, Asset/property/wealth, Statement, Allotment of waqf property, Waqf Period.
Based on the pillars and conditions mentioned above, there is a clear difference between the pillars determined by most Islamic scholars and the Waqf Law. The difference is that there is a waqf allocation and a period that must be determined and exists when a person endows his property, but these two pillars are accommodated from various opinions of fiqh scholars who based their opinion on the conditions of Indonesia. In addition, the inclusion of nadzir as a pillar of waqf in the Waqf Law shows the vital role of nadzir in empowering waqf, especially in Indonesia.
Regarding the conditions of wakif in the pillars of waqf, in this discussion of non-Muslim waqf, the definition of wakif is focused on a person who gives waqf. Based on Article 8 of the Waqf Law, an individual wakif must meet several requirements including: adult (mature), soundness of mind, healthy, not hindered from carrying out legal actions, and the legal owner of the waqf property.
Meanwhile, Article 217 paragraph (1) of the KHI states that Indonesian legal entities and people who are matured, sane, not prevented by law from taking legal actions, able to endow their property on their own free will by taking into account the applied provisions of the Law. The Waqf Law and Book III of the KHI concerning waqf do not mention the word Muslim as a condition for wakif so that it becomes an opportunity for non-Muslim wakif to donate or endows their property for waqf. 17 As

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Government and the Indonesian House of Representatives agreed to abolish the "Muslim" requirement as wakif. The abolition of the word 'Muslim' as a condition for wakif aims to avoid a paradox, because, in Islamic history and Hadith, that waqf given by non-Muslim is valid and accepted. However, the waqf given by non-Muslim wakifs should be directed to matters related to the benefit of the people, not for places of worship. These rules do not include special criteria for Muslims who are only allowed to waqf their wealth. 18 However, the requirements for waqf managers (nadzir) are different, in Article 219 KHI it is clearly stated that the waqf managers (nadzir) must be Muslims. Some of the requirements for nadzhir in paragraph 1 of Article 219 KHI are: a. Indonesian citizens; b. Muslim; c. mature (adult); d. physically and mentally healthy; e. not under custody; f. resides in the sub-district where the waqf asset is located. This shows that the opportunity to collect waqf from non-Muslims in the community is wide open in order to increase waqf assets in Indonesia. This is different from the requirements for waqf managers which must be more selective because it is related to the development and empowerment of waqf assets themselves.

The Status of Non-Muslim Wakif in Waqf According to Fiqh
Linguistically, wakif is a person who does a waqf, the word is a form of isim fail from the word waqafa. According to Wahbah Zuhayli, the requirement for wakif is to have legal skills or kamalul ahliyah (legally competent) in spending his wealth (tasharruf al-mal). Wakif must also have the ability to fully act (ahliyah al-ada al-kamalah), among these competences include 4 criteria: 19 Independent, Soundness of mind, Adult (mature), Not under wardship or custody, according to Baijuri, the right of wardship includes two things, people who are in debt and people who are seriously ill. 20 From this, it is not indicated that the waqf must be a Muslim.
In addition, according to al-Kabisi, being an adult as a requirement for wakif is to prevent a guardian of a child to endow the assets of a child under his guardianship, even if permitted by a judge. According to the statement, there are no special requirements for wakif regarding their beliefs or religion.
As for non-Muslims who did waqf in history, it is associated with the law of giving from non-Muslims to Muslims in general. This is based on the event narrated by Ali bin Abi Talib that the Prophet Muhammad had received gifts from several non-Muslim parties such as Kisra and other kings and received gifts from Salman al-Farisi who was not yet a Muslim at that time.

The Legal Position of Waqf for Non-Muslims
Siska Lis Sulistiani DOI: 10.22373/sjhk.v5i1.9161 http://jurnal.arraniry.ac.id/index.php/samarah 366 However, in another narration, it was stated that the Messenger of Allah forbade receiving gifts from non-Muslims. Nevertheless, this prohibition is considered null and void by the hadith that allows accepting gifts from non-Muslims according to Ibn azm's statement. However, there are also those who interpret this as makruh (discouraged). Meanwhile, some other opinions allow this if the position of the Muslims considers it a solution to avoid the strategy of non-Muslims against Muslims or hope that a non-Muslim giver becomes a Muslim.
Regarding the status of whether a Muslim can accept gifts from non-Muslims, the ulema has different opinions. The first opinion is mubah or permitted; a Muslim is allowed to accept gifts from non-Muslims. It is based on Qs.al-Mumtaḥanah: 8, and the hadiths in Sahih al-Bukhârî in the chapter on receiving gifts from polytheists, and the consensus of the ulema. Whereas on the second opinion, it is forbidden to accept gifts from non-Muslims. It is based on Qs. At-Taubah: 5, and the hadiths on Sunan at-Tirmidzî in the chapter on whether to accept the gifts from the polytheists. From these two opinions, after doing the tarjîh (balanced comparison), it can be concluded that the first opinion is rajih (stronger) and prioritized to be implemented on the condition that what is given by non-Muslims does not have ties that are against the sharia. It is also essential to pay attention that the gift is produced from something that is considered good by the sharia, there is no intention to insult the Muslims, and it is certain that the gift will not harm the Muslims in the future. However, the law is subject to change if difficulties arise.
Therefore, from this perspective, it is considered permissible if it is associated with a non-Muslim waqf, even if it goes to mosques and the alms given are rewarded in the worldly context. However, there is no reward given in the hereafter. Because no matter how big and charitable, their deeds are still not accepted by Allah. Furthermore, some of the Shafi'i and Hanbali schools of thought think that non-Muslim waqf for the benefit of Muslims is valid, even if the waqf is in the form of a mosque on condition that it is only for the well-being of Muslims. However, if the non-Muslim waqf is intended for the purpose of their deeds and worship, then it is not valid because it is not considered worship according to Islam. Hence the purpose of waqf is only for good deeds, benefits, worshipping, and not for spreading polytheism and encouraging disobedience. 21 The Shafi'i school of thought argues that the core purpose of waqf is to be closer to Allah without paying attention to the belief (i'tiqad) of the "The Shafi'i and Hanbali schools of thought believe that the purpose of waqf is as a means of qurbah (getting closer to Allah), which is in line with the Islamic view, whatever the beliefs of the donor. Therefore, there is a legal basis in non-Muslim waqf for mosques because, in the view of Islam, it constitutes a form of qurbah. On the other hand, it is not valid to waqf for a church, a temple worshipping fire, or any other similar places because it is not considered a qurbah ia the Islmiic viea." This is different from the opinion of the Hanafi and the Maliki school, which argues that the waqf from non-Muslims is invalid. However, regarding non-Muslim waqf, several ulemas have different opinions regarding its legal standing. One of them is the Hanafi School which provides opportunities for non-Muslim to endow their wealth for waqf if it meets the requirements set by the Hanafi school. In addition, any action that can provide benefits for all can be considered as a valid waqf and such an act is universal that does not conflict with the teachings of any religion. Because donating wealth for the benefit of people is a good deed and taqarrub (to get close to Allah) in Islamic law, whether from a Muslim or a non-Muslim. 23 The Hanafi school of thought also argues that waqf for mosques is permissible only if it is from Muslims. Because spending funds for mosques is an act of taqarrub and in Islamic law, it is specifically for Muslims. For non-Muslims, such actions are not permissible because such actions are not intended by them to be taqarrub. Therefore, if there is a non-Muslim (Christian) who donates a piece of land for a mosque and the Muslims pray in it for years, then the landowner has the right to tear down the mosque at any time and use the land as he wishes. Likewise, the heirs of the waqif may share the land between them as part of the inheritance, like any other property, because the waqf is invalid. 24