Nazir Al-Waqf in Imam Syafi'i's Perspectives and Regulation in Indonesia

This article discuses of possessing endowment refers to an association that copes the endowment properties from the endower in order to be managed and developed based on its intentions (Act number 41 of 2004 article 1 section 4). According to Imam Syafi'i, possessing endowment can be comprised by wakif, or mauquf ‘alaih, or hakim. Dissimilarity with the constraints in the Government Regulations number 28 of 1977, possessing endowment should be managed by individuals or institutions in contrast with the constraints that are mentioned by Imam Syafi'i. Evenly, Act number 41 of 2004 article 9 has mentioned that possessing endowment may include: a. individuals, b. organizations, c. institutions. The main notions discussed in this study are: first, the concept of Imam Syafi'I, Government Regulation number 28 of 1977, and Act number 41 of 2004 about The Endowment of Land Properties; second, the position of possessing endowment according to Imam Syafi'i Government Regulations number 28 of 1977 about The Endowment of Land Properties, and Act number 41 of 2004. In addition, the aims of this study are: first, getting a description about the concepts delivered by Imam Syafi'i, Government Regulation number 28 of 1977, and Act number 41 of 2004 about The Endowment of Land Properties. Second, gaining a description about the position of possessing endowment according to Imam Syafi'i, Government Regulation number 29 of 1977, and Act number 41 of 2004. Third, gaining a description about the influence of Imam Syafi'i perspectives in Government Regulation number 28 of 1977 and Act number 41 of 2004 about The Endowment of Land Properties, especially about the position of possessing endowment. This study is started by literature review of Imam Syafi'i works that relate to endowment appraisal and a review of Government Regulation number 28 of 1977, Act number 41 of 2004 and Government Regulation Number 42 of 2006. The conclusion of this study gives an affecting description from Imam Syafi'i perspectives towards Government Regulations number 28 of 1977, Act number 41 of 2004 and Government Regulation Number 42 of 2006 about endowment in Indonesia. In addition, the majority of Indonesian Muslims is enthusiastically involved in applying the concept of Imam Syafi'i in relation to the notion about possessing endowment in its practices.


A. INTRODUCTION
Etymologically, the term waqf means to stop or stand still. As for the terminological meaning, waqf means to restrain possessions, to gain benefits from it, without damaging the possession (Ash-Shan'ani 1991, III 167). According to the Government Regulation number 28 of 1977 on regarding the Endowment of Land Properties, article 1 section (1): A lawful action of an individual or an institution which separates a part of its land property possessions and institutionalizing it for good, for the sake of religious interests or other general deeds according to the Islamic principles (Ministry of Religion RI.1984. 91). On the basis of the above-mentioned section 1, it is indicated that the waqf property comprises of various types of goods that are not easily damaged during utilization. However, there are also ulama that regards waqf as limited to a plot of land.
The legal basis of waqf is not explicitly mentioned in Al-Quran however there is an implicit reference, as explained by Imam Syafi'I, Imam Malik and Imam Ahmad ibn Hanbal (Hasbi Ash-Shiddiqie: 1978. 179). There are several verses in Al-Quran that describes the essence of waqf, accordingly: Al An'am 38, Al Hajj 77, An Nahl 97, Ali Imran 92. (and Hadith of the Prophet PBUH) indicates that: ""When a man dies, his deeds come to an end except for three things: Sadaqah Jariyah (ceaseless charity); a knowledge which is beneficial, or a virtuous descendant who prays for him (for the deceased)." (Muslim).
A waqf institution has only been recognized during the Islamic period. Previously, there was bahirah, saibat, washilat and ham. As can be read in Al Maidah: 103 "Allah has not appointed (such innovations as) bahirah or sa'ibah or wasilah or ham. But those who disbelieve invent falsehood about Allah, and most of them do not reason." (Al-Syafi'i 1990. IV. 54).
There are four elements of waqf, namely: wakif, mauquf 'alaih, mauquf bih and shigat or pledge. In this case, the positioning of nadzir endowment which has a responsibility to take care and to manage the endowment, is not discussed. On one hand, during that time the role of nadzir endowment was a direct responsibility of wakif, maukuf alaih or hakim, as explained by Imam Syafi'i. On the other hand, in Hadith of Ibnu Umar, the positioning of nadzir endowment is explicitly emphasized as follows: "It is not sinful for a nadzir endowment to consume a part of the endowment in a righteous manner and without the intention to possess it." .
The positioning of a nadzir endowment becomes more prominent when the location of the endowment is in a very strategic location with a high selling price. In some cases, this condition leads to the endowment property trading, organized by the nadzir endowment, which is clearly against the religious principle. Emphasizing the importance of a nadzir endowment, this research will examine the positioning of a nadzir endowment, according to Imam Syafi'i, Government Regulation number 28 of 1977, and Act number 41 of 2004.
The research method under consideration is the qualitative method, specifically a literature research or book survey. Main reference sources include: kitab al-Umm, Government Regulation number 28 of 1977, and Act number 41 of 2004 regarding endowment in Indonesia. In addition, other book reference serves as a secondary source to enrich this study.

B. METHODS
This study is started by literature review of Imam Syafi'i works that relate to endowment appraisal and a review of Government Regulation number 28 of 1977 and Act number 41 of 2004 about the Nazir Al-Waqf in Imam Syafi'i's Perspectives and Regulation in Indonesia I n t e r n a t i o n a l J o u r n a l o f N u s a n t a r a I s l a m , V o l . 0 4 N o . 0 1 -2 0 1 6 ; ( 4 9 - 6 2
In the above-mentioned notion, the positioning of a nadzir and a witness of waqf is not mentioned, although those two aspects are crucial in the implementation. It seems that the two additional elements are emphasized as an evidentiary function of waqf, not as a legitimate requirement of waqf.
Imam Syafi'i explained nadzir endowment as follows: If there is a contract (akad) of waqf while the nadzir is not mentioned, then the wakif automatically serves as a nadzir. This function can also be As contained in Government Regulations number 28 of 1977, the elements of waqf comprise of: wakif, a property/possession, waqf khairi, a pledge, nadzir, a witness, and the officials which is responsible for the creation of the endowment pledge. In that case, based on Government Regulation there is a clear position of nadzir endowment. The elements of waqf are described in detail, while the elements of waqf as established by jumhur ulama is not as detailed (Athoillah, 2015:217). This condition could lead to a misunderstanding in the Muslim community, especially in understanding the essence of waqf (Joseph, 2014). Based on the writer's analysis, the explanation as contained in Government Regulation provides a more general interpretation which is more operational and accommodative with regard to the development of Indonesian Muslim community's understanding of waqf. Consequently, there is an insignificant possibility that there will be a misunderstanding regarding nadzir endowment. However, the position of nadzir endowment needs to be formally determined in order to avoid the practice of trading or abuse of waqf endowment, which could be the result of the increased value of waqf endowment or other factors (Cf, Athoillah, 2013). Other factors that are explained in Government Regulation number 28 of 1977 while have not been set by jumhur ulama are including these additions: waqf khairi, the witness and the officials which is responsible for the creation of the endowment pledge. One could say that the three elements serve an important role in waqf, hence, if one of those is missing, the implementation of waqf cannot be said as legitimate, according to the constitutional law and the Islamic religious law in Indonesia.
Nadzir endowment according to Government Regulation number 28 of 1977 is categorized into two groups, namely individual nadzir and institutionalized nadzir. An individual nadzir needs to adhere to the following requirements:

Obligations and Rights of Nadzir in Government Regulation number 28 of 1977
Obligations and rights of nadzir is regulated in article 220 CIL and section 7 of PP No.28/1977, as follows: a. Nadzir is obliged to arrange and be responsible of the waqf property and the execution of the waqf procedure on the basis of its objectives, as regulated by the Minister of Religious Affairs. b. Nadzir is obliged to make a regular report to the local head Office of Religious Affairs (Kepala Kantor Urusan Agama) and a copy to the local District Council of Ulama (Majelis Ulama Kecamatan) and the local Head of District (Camat), regarding all of its responsibilities, as indicated in section 16 (1). c. The procedures of writing the report as mentioned in section (2) is executed according to the regulations of the Ministry of Religious Affairs.
Furthermore, in article 22 of CIL and article 8 Government Regulation number 28/1977 it is explained that nadzir has the right to acquire an income and supporting facilities in which the amount is determined based on the decency consideration as advised by the local Office of Religious Affairs (Kantor Urusan Agama). Emphasizing that both individual and institutionalized nadzir has a limited tenure both because of a hindrance of samawi or kasbi, it is important to have a clear regulation (Bayinah, 2012). Therefore, article 221 indicates that: a. Nadzir is stopped by the Head of local Office of Religious Affairs because of the following reasons: death, an appeal from the individual, inability to continue the obligation as a nadzir and committing a crime. b. If there is a vacant position for a nadzir because of one of the reasons mentioned in section (1), the successor will be appointed by the Head of the Office of Religious Affairs or according to the local religious authority (Majelis Ulama Kecamatan). c. If a nadzir has been demoted, as explained in section (1), he will automatically be replaced by one of his heir. (2) An organization as mentioned in article 9b can only be a nadzir if the following conditions are met: a. The management of the corresponding organization fulfils the requirements of individual nadzir as explained in section(1); and b. An organization that is actively involved in social activities, education, society development and/or Islamic (religious) activities.
(3) A legal entity according to article 9c can only be a nadzir if the following conditions are met: a. The management of the corresponding organization fulfils the requirements of individual nadzir as explained in section(1); and b. An Indonesian legal entity which is shaped in accordance with the prevailing legislation. c. The corresponding legal entity is actively involved in social activities, education, society development, and/or Islamic (religious) activities.

Article 11
Nadzir has the following tasks: a. To conduct the administration of the endowment property b. To manage and to develop the endowment property according to its objectives and functions c. To supervise and to protect the endowment property d. To give report regarding the task implementation of the head of the Indonesian Waqf Organization (Badan Wakaf Indonesia).

Article 12
In carrying out the tasks referred to in article 11, nadzir can receive compensation from the net proceeds for the management and development of waqf property in the amount not exceeding 10% (ten percent).

Article 13
In carrying out the tasks referred to in article 11, nadzir acquires guidance from the Ministry and the Indonesian Waqf Board.

Article 14
(1) In the occasion of development, as referred to in article 13, nadzir must be registered with the Ministry and the Indonesian Waqf Board.
Further provisions of nadzir as referred to in article 9, article 19, article 11, article 12 and article 13 is regulated by the Government Regulation (GR).

Nadzir In Government Regulation number 42 Of 2006
Article 2 Nadzir includes: (1) Individual nadzir is appointed by wakif to meet the requirements by law.
(2) Nadzir referred to in paragraph (1) (2), nadzir registration is done through the nearby Religious Affairs Office, the Office of Religious Affairs, or a representative of Indonesian Waqf Board at provincial / district / city. (4) Indonesian Waqf Organization published a proof of registration for nadzir (5) Nadzir individuals should constitute a group consisting of at least three (3) persons, one of whom was a head. (6) One Nadzir individuals as referred to in paragraph (5) must reside in the district where the endowment is located.

Article 5
Nadzir, as referred to in Article 4 paragraph (1), stops from its position if: a. passed away; b. permanently restrained; c. resign; or d. dismissed by Indonesian Waqf Organization.
(1) The cessation of one Nadzir individuals as referred to in paragraph (1) shall not result in the cessation of other Nadzir individuals.

Article 6
(1) If among Nadzir individuals some one quits from his position as referred to in Article 5, the Nadzir should report to the Office of Religious Affairs to be forwarded to Indonesian Waqf Organization no later than 30 (thirty) days from the date of cessation of Nadzir individuals, who will then substitute Nadzir as determined by Indonesian Waqf Organization.
(2) In the case Nadzir quits his position as referred to in Article 5 for the endowments for a limited period and endowments in a period not limited to, the existing Nadzir notify Wakif or heirs Wakif when Wakif had died. (4) If Nadzir within a period of one (1) of from the Endowment Deed Official Pledge does not perform their duties, the head of KUA either on its own initiative or at the proposal of wakif or their heirs are entitled to propose to the BWL for the dismissal and replacement Nadzir.

Article 7
(1) Nadzir organization shall be registered with the Minister and BWI through the local Religious Affairs Office.
(2) In the absence of the local Religious Affairs Office referred to in paragraph (1), Nadzir registration is done through the Office of Religious Affairs nearest Office of Religious Affairs, or representative of BWI in the provincial / district / city. (3) Nadzir organization is an organization engaged in social, educational, social and / or Islamic religious activities that meets the following requirements: a. organization committee must meet the requirements of individual Nadzir; b. one of the organization committee must reside in the district / city where the endowment is located c. to possess: 1. a copy of the notarial deed of incorporation and articles of association; 2. The list of board members; 3. Bylaws 4. The program in the development of endowments; 5. The list of assets derived from waqf property separated from other property or that is the wealth of the organization; and 6. a letter of statement, willing to be audited.
(4) Requirements referred to in paragraph (3) letter I attached to the application for registration as referred to in paragraph (1). (5) The registration referred to in paragraph (1) shall be done before signing

Article 8
(1) Nadzir organization is disbanded in accordance with the provisions of the articles of the bylaws (Anggaran Dasar) of the organization concerned.
(2) If one Nadzir raised by the Nadzir organization died, resigned, or unable to keep his position as Nadzir and/or canceled, then the concerned Nadzir must be replaced.

Article 9
(1) Nadzir regional representatives of an organization that does not carry out the task and/or violates the provisions in the management and development of waqf property in accordance with the designation contained in Waqf deed of pledge, then the management center of the organization concerned shall resolve the matter regardless of the request from BWI. (2) If the central committee is not able to carry out the obligations referred to in section (1), then the Nadzir organization may be dismissed and its right may be replaced by BWI, taking into account the recommendations and considerations of local MUI.

Article 10
If one Nazhir appointed by Nazhir organization dies, resigns, remains incapacitated and / or cancellation of his position as Nazhir raised by Nazhir organization as referred to in Article 8 paragraph (2), the organization concerned must report to KUA for subsequently forwarded to BWI later than 30 (thirty) days after the incident.

Article 11
(1) The legal entity of Nadzir shall be registered with the Minstry and the BWI through the local Religious Affairs Office.
(2) In the absence of the local Religious Affairs Office referred to in paragraph (1), Nadzir registration is done through the Office of Religious Affairs nearest Office of Religious Affairs, or representative of BWI in the provincial / district / city. (3) Nadzir legal entities that carry out the registration referred to in paragraph (1) shall meet the following requirements: a. Indonesian legal entities engaged in social, educational, civic, and Islamic religion; b. board of a legal entity shall meet the requirements of individual Nadzir; c. one of the administrators of legal entities must reside in the district / city where waqf the endowments are located; d. possesses: 1. a copy of the notarial deed of establishment and articles of association which have been approved by the competent authority; 2. The list of board members; 3. Bylaws (Anggaran Rumah Tangga) 4. The program/planning in the development of endowments; 5. A separated list of wealth derived from waqf property or wealth which is a legal entity; and 6. A letter of statement, stating the willingness to be audited.
(4) The requirements referred to in paragraph (3) d is attached to the application for registration as referred to in paragraph (1).

Article 12
Regional representatives of Nadzir of a legal entity which does not carry out its duties and / or violate the prohibition in the management and development of waqf property in accordance with the designation contained in Waqf deed of pledge, then the central committee of the corresponding legal entity concerned shall finish it, whether requested or not by BWI.
(1) In the case of the central committee of legal entities cannot execute the obligations referred to in paragraph (1), then Nazhir legal entity may be dismissed and its right may be replaced by BWI by taking into account the recommendations and considerations of local MUI. (2) If Nazhir legal entity within a period of one (1) of from the Endowment Deed Official Pledge do not perform their duties, the head of KUA is entitled to propose to BWI for the dismissal and replacement Nazhir, either on its own initiative or at the proposal wakif of their heirs.

Article 13
(1) Nazhir as referred to in Article 4, Article 7 and Article 11 shall administer, manage, develop, oversee and protect waqf properties.
(2) Nazhir shall make periodic reports to the Minister and BWI about waqf activities referred to in paragraph (1). (3) Further provisions concerning the procedures for making the report referred to in paragraph (1). (4) is regulated by the Minister Regulation (Peraturan Menteri).

Article 14
(1) The tenure of Nazhir is five (5) years and may be reappointed.
(2) The reappointment of Nazhir referred to in paragraph (1) is conducted by BWI, if the person concerned has been carrying out a good job in the previous period in accordance with Islamic principles and legislation.
From the Government Regulations and Act above, nazhir is one indispensable element in the implementation of waqf (Assegaf and Sawarjuwono, 2013). The task of Nadzir is to maintain prosperity, empowering, lease, and extract the benefits from waqf properties (Dahlan. Yaa'akub, Abdul Hamid and Palil, 2014). Because of the above-mentioned task, the 'Ulama of Hanafiyah, Malikiyah and Shafi'ites agreed that he was entitled to a reward from the benefits of the waqf objects or wages that have been promised by wakif (Wahbah Zuhayli,7694) or from the local government of the state treasury (bait al-mal) (An-Nawawi al-Banteni, 174). Imam Nawawi in the book Nihayat Zaiyn mentioned that Nazhir (which is not wakif) are entitled to wages that have been promised by wakif even though it is more than a standard wage minimum (An Nawawi al-Banteni, 273) If Nazhir is resigned of fired, the judge has the right to appoint the person that is ready to manage endowments. This person is paid from the endowment empowerment results. (Wahbah Zuhayli,7694) According to Malikiyah, Nazhir is entitled to receive wages from the results of waqf ‫وﻟﻠﻘﺎﺿﻲ‬ ‫ان‬ ‫ﯾﺠﻌﻞ‬ ‫ﻟﻠﻨﺎظﺮ‬ ‫ﺷﯿﺌﺎ‬ ‫ﻣﻦ‬ ‫اﻟﻮﻗﻒ‬ ‫اذا‬ ‫ﻟﻢ‬ ‫ﯾﻜﻦ‬ ‫ﻟﮫ‬ ‫ﺷﯿﺊ‬ "And for judges (government) may not make a wage from the endowment if Nazhir does not have anything".
Legal thought is reflected in the Law of waqf which says that Nadzir has the task: a. to undertake administration of waqf property; b. to manage and to develop the waqf property in accordance with the purpose, function, and purpose; c. to supervise and to protect the property of the waqf; The article reinforces the special authority of Nazhir which has a stronger position than others, according to the rules (kaidah) (Zaenudin Ibrahim (Ibn Najm), al-Asybah wa al-Ndhair, p. 186.)

‫اﻟﻮﻻﯾﺔ‬ ‫اﻟﺨﺎﺻﺔ‬ ‫أﻗﻮى‬ ‫ﻣﻦ‬ ‫اﻟﻮﻻﯾﺔ‬ ‫اﻟﻌﺎﻣﺔ‬
"Special authority has a stronger position rather than the general rule".
In other methods Ibn Najm disclose: The judge does not have the jurisdiction over the existing endowments to manage waqf properties, as long as Nazhir is present".
Nazhir authority is also mentioned in Article 23 that, "In the case of wakif do not specify the designation of waqf properties, Nazhir can assign the designation of waqf property in accordance with the purpose and function of endowments." (Law No. 41 of 2004 Article 23, paragraph 2) In respect of the wage of Nazhir mentioned in Article 12, which reads, "In carrying out the tasks referred to in Article 11, Nazhir can receive compensation from the net proceeds for the management and development of waqf properties which amount does not exceed 10% (ten percent). (Law No. 41 2004, Article 11).

D. CONCLUSION
Based on the results of a comparative study of the positioning of Nadzir endowments, some conclusions can be drawn as follows: First, the waqf concept as stated by Imam Syafi'i were generally modest, it can be seen from the description of his theory of the elements of endowments, namely: wakif, mauquf 'alaih, mauquf BIH, and the pledge. On the other hand, the provision of endowments established by Government Regulation number. 28 of 1977 is the development of the basic thoughts of Imam Shafi'i because it has undergone the process of adjusting to the conditions and demands of the people of Indonesia.
In the PP it is determined that the elements of endowments consist of: wakif, lands waqf properties, endowments khairi, pledge, nadzir, witnesses, and the Endowment Deed Official Pledge of Government Regulation. In Act number 41 of 2004 under Article 6 stated that the elements of waqf as follows: Wakif, Nadzir, Endowment properties, Endowmend Pledge (ikrar), Appropriation of the waqf property and Endowment duration.
The gradual improvement regarding the positioning of nadzir endowment has been conducted by the Indonesian government in order to run the 1945 Constitution Article 29, paragraphs 1 and 2.
Secondly, regarding nadzir endowment, according to Imam Syafi'i "when in the pledge it was not mentioned regarding who takes te role of a Nadzir, then it can be concluded that the nadzir will be its wakif, mauquf 'alaih or judges." The aim is to provide legal certainty about who will be the waqf property manager. This allows the waqf property to be maintained properly in accordance to the guidance of the Islamic principles and to meet the expectations to whom the property is beneficial.
Third, the position of nadzir endowment in Government Regulation number 28 of 1977 has been clearly mentioned in relation to the obligations, rights, and other matters relating to nadzir endowments. This is described in Article 6, paragraph 1 and paragraph 4 and includes individual Nadzir and legal entities. Then in Article 7, the obligations and procedures for reporting nadzir endowment is described. Article 8 mentions regarding the rights of Nadzir to acquire an income and facilities from the waqf property.
Fourth, endowments nadzir provisions in Act number 41 of 2004, in Article 1, paragraph 4 states that the party receiving nadzir is Waqf property of Wakif to be managed and developed in accordance with peruntukkannya. Ketentuan on nadzir endowment mentioned in the articles: Article 9, Article 10, paragraph 1,2 and 3. Article 11, Article 12 on the right nadzir on waqf property of (maximum) 10%. Article 13 nadzir obtain guidance from the Minister and the Indonesian Waqf Board. Article 14 on the necessity nadzir endowments registered with the Ministry and the Waqf Board Indonesia (Article 1), and article 2 states that matters related nadzir endowment as contained in Articles 9, 10, 11, 12, and Article 13, is regulated by the Government.
The Government Regulation number 42 of 2006 on Chapter II explains that nadzir endowment consists of Part General Article (2) Nadzir include: an individual, organization or a legal entity. Section 3 describes the need to register the property on behalf of nadzir endowment, while it does not mean that the property belongs to them, and regarding the Nadzir replacement which does not result in the transition of waqf properties. Part two pointed out regarding individual Nadzir, comprised of Articles 4 (No 6, paragraphs), Article 5 of Nadzir replacement mechanism as set out in Article 4 (1) of Article 6 consists of four paragraphs. The third part of the organization Nadzir consist of Article 7 (including 5 sections). Article 8 (consisting of two sections about the dismissal of the organization nadzir). Article 9 on nadzir regional representatives of an organization (consisting of three sections). Article 10 regarding the rules of individual Nadzir appointed by nadzir organization when they resign or die, or when the position is canceled. Part Four discusses the Nadzir Legal Entity. Article 11 consists of four sections. Article 12, second section highlights the provisions of nadzir regional representative of a legal entity which does not carry out its duties and / or violate the prohibition in the management and development of waqf property in accordance with the designation listed in Waqf deed of pledge. The fifth part explains the tasks and the service period of nadzir. Article 13 consists of four sections. Then Article 14 regarding the service period of nadzir, consists of two sections. In general it can be concluded that the position nadzir endowment in Act number 41 of 2004 and Government Regulation number 42 of 2006 provides details and clarity on the positions, kinds, rights and obligations of nadzir endowments, as well as the service period of Nadzir endowments. It shows that the Indonesian government provides service for the Muslims in relation to the affairs of waqf in Indonesia.