Permasalahan dan Penyelesaian Sengketa Wakaf Menurut UU No. 41 Tahun 2004 dan Hukum Islam (Studi Sengketa Wakaf Tanah Wahdah Islamiyah)

Issues and Resolution of Waqf Disputes According to Law No. 41 of 2004 and Islamic Law (Study of Waqf Land Disputes of Wahdah Islamiyah)

Abstract

This research aims to find out: (1) the issue of waqf disputes and their resolution in Indonesia in the review of the Law. No. 41 of 2004 and Islamic law; and (2) the issue of waqf disputes and their settlement in Wahdah Islamiyah. This research includes the category of descriptive research using qualitative methods with a juridical-normative approach through field research. The results showed that: (1) the form of land waqf dispute problems in Indonesia, including: (a) issues involving holders of legitimate rights to waqf land; (b) issues related to the reason for rights or proof of acquisition used as a basis for granting rights; (c) errors/misrepresentation of rights. In addition, the problem is also in the form of still many waqf land that does not have a Waqf Pledge Deed, many waqf implementations are carried out religiously or based on mutual trust, the demand for the return of waqf land by wakif heirs and waqf land is controlled for generations by nazirs who deviate from waqf accounts. Article 62 of Law No. 41 of 2004 on Waqf affirms that the resolution of disputes is taken through deliberation for consensus. If dispute resolution through deliberation is unsuccessful, the dispute can be resolved through mediation, arbitration, or court. As for the review of Islamic law, the resolution of waqf disputes and other issues in the realm of Islamic law can be facilitated through litigation and non-litigation. The existence of peace (al-iṣlah) and deliberation for consensus is always a priority and is expected to solve problems without causing other problems (lā ḍarara wa lā ḍirāra) to achieve the benefit of the people in accordance with maqāṣid al-syarī'ah and justice; (2) Wahdah Islamiyah faces several problems of land waqf disputes, such as lack of legal certainty in waqf land ownership, waqf practice by conventional means, waqf land for sale, claims of waqf land ownership, and no checking the legality of waqf land. In the settlement of land waqf disputes, Wahdah Islamiyah directs the resolution of all dispute cases through two patterns, namely litigation and non-litigation patterns, which are generally done by familial means or consensus deliberation.