The Clash of Muslims and the State: Waqf and Zakat in Post Independence Indonesia

Studia Islamika

Volumn 13, Issue 3, 2006, Pages 353-395

  Jahar, Asep Saepudin ^a  

^a Leipzig lJniaersity   (Germany)

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EID: 78049269248     PISSN: 02150492     EISSN: 23556145     Source Type: Journal    
DOI: 10.15408/sdi.v13i3.556     Document Type: Article

References (100)

1. 1. Waqf can also be described by tbe Arabic terms Tusbfl, Tahrim or Tahbls, while: the endowed object is referred to as MmiUjUf, Mahbus, A'hihubbas or habls. See W. Heffemng/'Wc^"in Enzyklopaedte hlum (Leiden: F.J, Brill, 193-1).
2. 2. Mundhir Qahaf, nt-Wuqf ut-lslsmi (lieirvt DSr si i'ikt, 2000/M2I), U; 83-87, The Prophet paid eight hundred dirhums for the land.
3. 3. (Q. ali Tmran/ 3: 92); (Q. Al-15aqara/2: 267).
4. 4. Sadiq 'Abd al-Rahman ;il-C liar yam, al-t'iqh nl-MSlikT w§ AdiUaUih, Vol,, 11 (Beirut; Mu'assasa al-Kayyan, 2002), 210. Waqf means Ho slop'. VVaqf pertains to religious endowment in favour of God. Such an endowment is nol Iransferable, either through inheritance or trading, Such a practice was popularly based on the agreement of Prophet upon 'Ulnar b. Khattilb intention of his land in Khaybar [o be used for public interest. See Kresmarik,""Das Wakfrecht voin Standpunkte des Shari'at-rechtes nach der hanafitischen Schule/' 512-513,
5. 5. Joseph Schacht, "7.tiknt"in F.nzyklapiw.din d?s Islam (Leiden: E.J. Brill, 1934),
6. 6. Ibid., vol. IV, 7. Zaknt ai-fip. is paid by all Muslims at the end of Ramadhan. The payment usually consists of staple food such as rice or grains, or in some cases can be paid in cash. This is then distributed amongst the poor.
7. 7. (Q. al-Baqarah/2; 43); (Q. al-Tawbah/9: 5).
8. it. The Old Order adminis(ration spans from 1945-1967 with Soekarno at President of the Republic of Indonesia.
9. 9. The New Order period was from 1.967 to 1998 led by President Soeharto as the successor of Soekamo. During Soeharto's era, all legal systems and institutions were based on the Pancasila.
10. 1 0. Tine reformation era is defined as the beginning of the implementation of a democratic system in Indonesia when B.J. Habibie succeeded Soeharto as president. Now, the Fancasila as well as religion may be used as (he basis of a religious instilulion or political parly.
11. 11. Znkal incomes and mosque treasuries, as Aqib Suminto noted, had also been used to subsidise the Missionary Hospital in Surabaya. Aqib noted that the mosque of Sedayu in Surabaya had spent its treasury of about f.90 on the missionary hospital in Surabaya. See also Amelia Fauzia and Ary Ilerma.'. :.]■. "Ketegangan antara Kekuasaan dan Aspek Normatif Filantropi dalam Sejarah Lslam di Indonesia [The Tension Between 1'ower and Normalive - Philanthropic Aspect in islamic History in Indonesia],"in Berderma lliituk Semua [Giving for All] (Jakarta: Teraju, 2003) 171.
12. 12. Quoted from a source within the Department of Religion, Republic of Indonesia (2004),
13. 13. Despite being organized by individual administrators, waqf tends to be designated for places of worship (mosques) rather than for productive enterprise
14. 1 1. Heated disputes arose during the assembly meetings concerning the matter of the state ideology; Muslim groups argued that the state should he an Islamic .state, whereas the nationalists preferred Ihe more secular Pancasila system.
15. 15. P;mcasi!a is a stale ideology neither completely secular nor religious because il. distinguishes between religious matters and political matters, Panca means five and site is foundation. Therefore, Pancasila consists of five foundations: belief in one God, humanity', Indonesian union, democracy and social justice,
16. 16. Safrul Muluk,"The Indonesian Army and Political Islam: A Political Encounter 1966-1977,"(M.A. Thesis, McGill University, 2000) 52.
17. 17. Alan A Samson,"Islam and Politics in Indonesia,"(Ph.D. Dissertation, University of California, Berkeley, 1072) 298, See also Safrul Muluk, "The Indonesian Army and Political islam,"56.
18. 1 8. Taufiq 1 lamami, Perwakafan Tanah dalam Politik ilnkum AgrarfA National (the VVaqf of Land in the National Agrarian Law Policy] (Jakarta: FT, i.'alanusa, 2003) 8-9.
19. 19. See Usman, 52.
20. Ibid., 53. The other parlies such as the head of the village (Utrah), [ho head of the sub-district (aimat) and KUA wore jjjso employed. In some cases, however, the ruizlir (administrator) and founder arc not obliged to register or give information regarding the development of waqf. There were therefore many waqf properties administered in an individual manner (traditional .system), which tended to lead to disputes among the parties concerned due to a lack of legal documentation. Refer to State Regulation No. 28/1977.
21. 21. See articles 5; 6; 7 and 14 of the Statute .Mo. S>] 1960. The most striking example of the social function of [and is stipulated in article 6 that "all rights to land are concerned with the social function."DEPAG Kl, llimpwian Peraluran Peruttdattg-Llndangan Punoakafan Tanah Miiik (Jakarta: Dirjen Bimas Islam dan Haji, 2002), 7-9.
22. 22. Hamami, 20-23. See 1W {Bur^UjMmthxk) articles 711 and 720 on the righls of land, which emphasises an individual's authority in the ownership of land by neglecting the role of adai as well as religious tradition.
23. 23. Article 1 of PP no. 28/1977
24. 24. Article 5 of I'P no. 28/1977.
25. 25. Article If of PP no. 28/1977.
26. 26. Article 12 and 13 of Lhe Regulation of [he .Minister of Religion no. 1/1978.
27. 27. Article 8 of PP no. 28/1977; see also article 11 of the Regulation of the Minister of Religion no. 1/197S. In some countries, (he role of iwtffligfya (waqf deed) is quite significant in defining the obligation and rights of administrator. See for example Aha roil l.ayish, "The Family Waqf and the Shar'i Law of Succession in Modem Times,"islamic I,mi and Society vol, 4, Mo. 3 (October, 1997): 358.
28. 28. Article 6 of PP no. 28/1977.
29. 29. Article 6 (4) of PP no. 28/1977. See also article 9 of the Regulation of the Minister of Religion no. 1/1978.
30. 30. See UU No. 7/1989 on the authority of Religious Court particularly on article 49. See also article 12 of IT no. 28/1977.
31. 31. The hierarchy of legal system in Indonesia in accordance with Decree no. XX/MPRS/ 1966 is as follows: Pancasila, UUD 1915, Decree of the People's Assembly (Keteta-pau MPK), Statue (U>idari$-umlang), Government Regulation(PP), Presidcnlial Decision (Keputusan Presiden) and other implementing regulations. See C.T.S. Kansil, Pengaritnr Ihnu Hukum dan lata tlukum Indonesia [the Introduction to Science of Law and the Order of Indonesian Law] (Jakarta: Balai Puslaka, 1986), 51-58.
32. 32. For more details on this theme, sec Donald K. Rmerson, Irtdanes-ia's Elite: Political Culture, arid Cultural Politics (Tthaca: Cornell University Press, 19fc5); benedict Anderson and Audrey Kaliin (ed.), Interpreting Indonesian Politics: Thirteen Contributors to Dffejfy (Ithaca: Cornell Modern Indonesia Project, 1982).
33. 33. The appeal to President Soeharto Was made 24 September 1968 by eleven 'ulamii, among them Dr, Hamka, K.l I. Ahmad Azhari, K.I1. Mohammad Syukri C, K.i i. Mohammad Sodry, K.H. laufiqurrahman, K.H. Mohammad Saleh Su'aidi, Us-tads. M. Ali Alhamidy, Ustadz Muchtar Luthfy, K.H.A. Malik Ahmad, Abdulka-dir R.H., and M.A. Zawawy. See Basis DKI Jakarta, Rekomcndasi dun Pedoman Pelaksanaan Zaknl (Jakarta: Bazis DKI, 1987), 98.
34. Taufiq Abdullah, "Zakal Collection and Distribution in Indonesia/1' in 1'he Islamic Volunlar\j Sector in Southeast Asia, ed. Mohamed Anff (Singapore: ISEAS, 1991), 51.
35. 34. In his letter No. B 133/['rcs/l 1 / 196S (28 November 1968) on zakat collection, Soeharto referred to his speech delivered on (he anniversary of the Prophet's ascension (!srH' Ml'raj) on 26 October 1968 stating I ha*, as a Muslim and as a citizen of Indonesia he was ready lo make initiatives in ad min is [rating zakiit. See, Basis DKI Jakarta, Rekomendnsi dan Pedo.rrum, 99. See also Arskal Salim, "Zakat Administration in l'olilics of Indonesian New Order,"1K2.
36. 35. It was also noted that the suspension ol the Regulation of [he Department of Religion was based on two reasons: firstly, (he collection of zakal as defined in this regulation was seen by the Cabinet Secretary as the concern of the Department of Religious Affairs only, without coordinating with olhcr departments; secondly, it was expected that, following his speech, Soeharto would issue a regulation (such as
37. Presidential Ins [rue Lion or President iai Decree) concerning Lhc collection of zaksfe See Saljm„"Zakat Administration in 1'oliLics of Indonesian New Order,"185.
38. 36. Ibid., "192. Sec also Pedeiman Pembinaan BAZIS, /JastE Perlemiiitn Nasmttd I UAZIS seSidtinesiii 3-4 Maret 1992 (Jakarta: Dirjeti BIUI-1 IJiepartemen Agama Rl, 1992) 83.
39. 37. Letter no. Cb, 14/8/18/63 on the administration of zakat Was made as a response to the Preside-ill readiness to be involved in zakat administration.
40. 38. BAZIS DK1 Jakarta, Rekomendasi dan Pedoman, 102-103,
41. 39. M. Yusuf Asry, Zttkut dim Aktualisusim/a di Daerak Istimeiua Acek [Zakat and Its Actualization in the Province of Acehl (Jakarta: Badan Penelitian dan Pengemban-gan A gam a Depag RI, 1989/1990), 12.
42. 40. Ki-zal Sukma, Islam in Indonesian Foreign Policy (London: Routicdge, 2003), 83. See also Michael Vatikioiis, Indonesian Politics under Soehario: '1 Tie Rise and rall of the 1rra Order, third edition (London: Routlcdge, 1998), 218-232.
43. 41. Sukma, 84. See also Ahmad Soemargono, Stnja Seorang Fundamentalis [I am a fundamentalist] (Jakarta: Global City Press, 1999), 111.
44. 42. Laws regarding liajj, the statule of Indonesian banks, among others, were made during Habibie's term.
45. 43. Article 29 of the constitution of 1945 (ULIU 1945).
46. 44. L'UD 1945 is the main basis of consideration for drafting and legalizing new laws. 1'his constitution is Iherefore used as Ihe spirit of all statutes in the country.
47. 45. On behalf of the government, the Depart merit of Religion delivered the preliminary statement on the draft of the law on zakut administration on 26 July, 1999 at the House of Representatives. Sec 'Ihe Draft of the Zakat Statute, The Government Statement before the House of liepresentatim (Jakarta: the Secretariat of DPR, n.d).
48. 46. Article 6 (1), (2) and (3) of Zakat Law no. 38/1999. These agencies, however, are not organized in a dependent system (subordination), since each agency is independent to organize zakat in term® of collection and distribution. In other words, the collection of zakat at the sub-districts (kecatntitim) across the counLry is not necessarily to be transferred to the central office of zakat administration in Jakarta, but rather, each agency is authorized to deal with zakat income in accordance with their own plans and programs.
49. 47. According to Zaim Saidi a senior researcher at ['IKAC, there is a wide gap between the BAZ and the LAZ in the amount of zakut collection. Tire average of znktf income collected by the BAZ is approximately about Kp 7 million per agency, with 3,160 agencies spread across the country. The LAZ (non-government zakat. agency), however, representee! by five agencies (Yayasan Dompet Du'ala, Yayasan Dana Sosial al-Falah, Yayasan Darut Tauhid, Dompet Sosial Umul Qttra', PKPU and liailul-maal Muarnalat) in 2000 collected zakaS income of approximately Rp. 32 billion. It means, he emphasized, that the average amount of zakai collected by LAZ is about Rp 5.3 billion per anruim. Zaim Saidi, Membangunn de.ngan Sedfhih [building with iadaqaj, a working paper presented at a Seminar on Keinterpretasi Zakal dan Opti-malisasi Pendayagnnaan Dana Llmat di Indonesia [the Reinterpretation of Zakat and the Advancement of Muslim's Charity in Indonesia] (Bandung, 26 October 2002), 10-14.
50. 4f>. It needs to be noted that BAZ's personnel are also religious officials, professionals and Muslim activists. Herwever, 1 tie mechanism of administration at the bAZ sometimes restricts their independence in developing administrative practices.
51. 49. Prior to the enactment of the zakat statute, UU no. 17/1999 on liajj was also issued which deals particularly with the arrangement of liajj affairs.
52. 50. Article 7 (1) of Zakat Statute no. 38/1999. According to the Decree of the Department of Religion, a zuktf agency can be established at every district level after having received a legal recognition from the state. Zakat. agency in Jakarta is issued by the Department of Religion, zakat agency in the provinces by the governors, mkut agency ill the districts by bupat.i and in the sub-districts by aimat. Article 21 ("I) and (2) of the KMA (The Decree of the Department of Religion) no. 581/1999.
53. 5 1. According to Kuran, the emergence of diverse corporaLe bodies in the West stimulated the development of rules, regulations, and laws conducive to the strengthening of civil society. He emphasized moreover that over time these corporations contributed to the success of movements lo curb the powers of ecclesiastical and secular authorities. Tin-mr Kuran, "The Provision of Public Goods under Islamic Law: Origin, Impact and Limitation of the Waqf System,"in l.uw and Society lievim. (Houston, 2001): 882,
54. Article 1 (1) of Zakat Statute no, 38/1999.
55. Article 13 of Zakal Statute no. 38/1999,
56. Article 12 (1) of Zakat Statute no. 38/1999.
57. Article 12 (2) of Zakat Statute no. 38/1999.
58. Article 14 (1) and (2) of Zakat Statute no. 38/1999.
59. Some debate does, however, exist regarding the position of the zakat collector and calculating the zakut levied on property of Muslim individuals and enforcing that payment.
60. Article 15 (1) of Zakat Statute no. 38/1999.
61. Article 28 (if of KMA no. 581/1999. In the Qur'an (Q. 9:60), it is clearly stated that zakut income is to be distributed among the eight groups of recipients. Today however, these parties may be interpreted differently covering a wide variety of people since, the meaning of each category is open to interpretation,
62. Article 15 (2) and (3) of Zakat Statute no. 38/1999.
63. KMA R1 no. 581/1999 on the implementation of Statute no. 38/1999 on zwitaf administration.
64. Department of Religion (KMA) Decree no. 1/2001.
65. Dirjen Bimas Islam dan Urusan Haji, Profile of Directorate of Development of W'aqf and Zakut (Jakarta, February 2003) 6. The Directorate ol Waqf and Zakat also concentrates on disseminating programs through seminars, journals and book publications.
66. Dirjen Bimas Islam, Profile, of the Directorate of Development of Waqf and Zakal, 31-34, Ihe sixteen zakat agencies are: Dompet Dhuafa Kepublika, Yayasan Amanah Takaf-ul, I'os Keadilan Peduli Umat, LAZ Muhammadiyah, Yayasan Baitulmaal Mua-malat, Yayasan 1 lidayatullah, Yayasan Dana Sosial Al-Falah, LAZ Persis, Bamuis Bank BNI, tiangun Sejahtera Mitra Umat, Devvan Dakwah Islamiyah Indonesia, Baitulmaal Bank BR1, Baitulmaal Wat Tamwil (UMT), Dompet Sosial Ummul Quro, Dompet Sosiai Daarut 'lauhid, and Baituzzakah Pertamina.
67. According to the Director of Waqf and Zakat Development, Tulus, "zakat agencies lack synergy in distributing zakat income in Muslim communities."lie emphasized (hat, 'zukut agencies seem to organize zakat income according to the respective programs by neglecting the networks between the zakat agencies."He further noted that zakat income had been used for the benefit of the poor and the needy through scholarships and community development. See Republic, 2 July 2004.
68. Interview with Isbir l-'adli, a staff member at the Directorate of Waqf and Zakat Development (Jakarta, October 2003).
69. Research Department ol LI IN Syarif Hidayafullah Jakarta, Respou lustitmi Zakal 1'erhtiihip Ffektivitas Undang-Undan^ no. .Iff Tahlifl 1999 [Zakal Agency Response to Zakat Statute no, 38/1999] (Jakarta, 2002/2003), 48.
70. 68. Ibid., 49-50,
71. According to research conducted by 1'IRAC in 2002 on the pattern of payment of "ikut, the level of trust in state zaka! agencies was only 4 percent. PIRAC, i'ohl dan Kecenderutigai) Mmyamkat Berzakal. [Patterns and I rends of Zakat Payment in Society] (Jakarta: PIKAC, 2002), 18.
72. These cities are: Jakarta, Bandung, Semarang, Surabaya, Medan, Padang, Den-pasar, Manado, Makassar, Pontianak and Balikpapan.
73. PIRAC, Polo, dan Kecenderungan Masyavakat Berzakut, 10.
74. 74. Sec PIRAC, Pola dan Strategi Penggalangan Dana Sosial di Indonesia [Pattern and Strategy of Social Charily Collection in Indonesia] (Jakarta: Pirainedia, 2003).
75. Refer to the FKFLI website, wwiv.pkpu.or.id
76. PIRAC, Giving and Ftmdraisiflg: in Indonesia (Philipines: Asian Development Bank, 2002), 67-69. See also PIRAC-, I'ola dan SLruitgi Penggalangau Dana Sosial di Indonesia, 73-95.
77. Quoted from DEPAG Ri, derived from the report of religious offices at the Government Provinces in Indonesia.
78. 78. Dirjen BIMAS Islam &. Haji, Pettglitm Tanak Waknf Produktif dan Strafes [Research on the Productive and Strategic Waqf] (Jakarta: Depag, 2002), 5.
79. Quoted by Imam Suhadi, Wakaf Untuk Kesejahtmian Umat (Yogyakarta: Dana Bhak-ti Prima Yasa, 2002), 118, obtained from the Department of Religion. Unfortunately, we failed to obtain figures on waqf and social welfare, bul to my knowledge, such waqf was normally assigned for the orphanages, clinics, elc.
80. Dirjen BIMAS Islam & Haji, Pt-'nelilia:i Tanah Wakaf, 4. Imam Suhadi also insisted that institutional managemenl is more effective than individual managemenl in terms of improving the public benefits in sodely. See Imam Suhadi, Wakaf Untuk Knsejahternan Uinat [Wacjf for Umat Welfare] (Yogyakarta: Dana Bhakti Prima Yasa, 2002), 132-133,
81. Muhammad Khalid Masud, Muslim jurists' Quest for the Normative Basis tf Shari'a (Leiden: ISIM, 2001), 3.
82. Consideration of waqf statute no. 41/2004 especially pari a and b.
83. Article I (1) of waqf statute no. 41/2004. Tine temporary nature of waqf assignment is primarily held by MaJiki jurists and it was not commonly recognised by Indonesian Muslim jurists until the waqf act no. 41/2004 was enacted.
84. Timur Kuran, "The Provision of Public Goods under Islamic Law: Origins, Impact, and Li mil at ions of the I\'aqf System,"in Law and Society Wtoim (2001): S41-897; 88(h 883.
85. Muslim jurists of schools of law have explained that waqf was only legal when it was made by an individual who has fulfilled the requirements. They, however, did not elaborate on the legality of waqf derived from a certain organization or legal instil ulion.
86. Arlicle 1 (2) of VVaqf Statute no. 41/2004.
87. Arlicle 44 (1) and (2); 67 (1), (2) and (3) of Waqf Statute no. 41/2004.
88. The Flaboralion on the Waqi Statute no. 41/2004.
89. Article 21 (2) of Waqf Statute no. .'11/2004.
90. Article 3 of Waqf Statute no. 41/2004.
91. Article 57 of Waqf Statute no. 41/2004. When the BWI was first established, its personnel were inaugurated by the President of the Republic of Indonesia through a recommendation made by the Minister of Religion
92. Article 50 of Waqf Statute no. 41/2004.
93. Article 61 (1) and (2) of Waqf Statute no. 41/2004.
94. Article 63 (1), (2) and (3) of Waqf Statute no. 41/2004.
95. Article 64 of Waqf Statute no. 41/200-4.
96. Article 28 of Waqf Statute no. 41/2004.
97. Article 49 (1) of Waqf Si,Uule no. 41/2004.
98. Arlicle 47 (1) and (2) of Waqf Statute no. 41/2004.
99. Arlicle 49 (I) of VVaqf Statute no. 41/2004.
100. The exchange of vvaqf is lawful if il (the good being received in exchange) is equal to or more in value than the original waqf asset. Article 41 (1), (2) and (3) of Waqf Slalute no, 41/2004.