The Benefit Principles of Istibdāl on Wakaf Objects

(Analysis of Dhawābith al-Mashlahah Sa'īd Ramadhān al-Būthi)

Moh. Mujibur Rohman
Institut Agama Islam Negeri Madura Jawa Timur, Indonesia
[email protected]

Received: 20-01-2021 Revised: 14-04-2021 Accepted: 10-06-2021

Abstract
The concept of waqf in fiqh is Islamic philanthropy in the form of amal Jariyah which requires the
eternal characteristics of the object given. However, with the development of the era of waqf
objects, it will be reduced mainly in property waqf. So that in order to keep the waqf objects
productive, istibdāl is carried out in order to remain productive on the basis of mashlahah. To find
the mashlahah principles in istibdāl, the author conducted a research of the boundaries of the
mashlahah by al-Būthi. This research would not be far from the formulation of the problem that
the author intended to find the answer; 1) what is the concept of istibdāl in fiqh and Indonesian
representation? 2) What is the procedure for istibdāl waqf in the context of Indonesian waqf fiqh?;
3) How is the construction of mashlahah principles in istibdāl waqf practice based on dhawābithal-
mashlahah al-Būthi? The research conducted was a normative research (doctrina), where the data
used were secondary sources (not in the field) in the form of books of fiqh and legislation. From
the data obtained, the authors conducted a descriptive analysis. The results showed that the
permissibility of istibdāl waqf based on the mashlahah principle that must be fulfilled, that is, it
must be in a state of dharurah, for urgent religious purposes, for the general public, there is an
inadequacy, through the agreement of wāqif and nazhir, replaced at least with the same, the object
of waqf is examined with involving figures and several elements of society as well as following
the provisions of the Shari'ah and applicable laws.
Keywords: Waqf, Waqf Objects, Istibdāl, Dhawābith al-Mashlahah
© 2021 Moh. Mujibur Rohman

This work is licensed under a Creative Commons Attribution-ShareAlike 4.0 International License.

Introduction
The word waqf is a form of masdar which comes from the word waqafa (‫ )وقف‬which means
to stop (Munawwir, 1997). However, the etymology (lughat) in fiqh is quite different, the word
waqafa (‫ )وقف‬itself means al-habsu (‫ )الحبس‬which means to hold or donate. While the syara’
definition of waqf is:

.‫حبس مال ميكن اإلنتفاع به مع بقاء عينه بقطع التصرف يف رقبته على مصرف مباح و جهة‬
“The meaning of waqf from the perspective of the Shari’a is holding back the assets that can be
used as well as the permanence of the waqf objects by preventing them from transferring
(tasharruf) their guardians” (Al-Malībāri,tt).

Indonesia has recognized and implemented the mechanism of waqf since the entry of Islam
to this country. Waqf is considered to have supported the development of the Islamic community,
most places of worship for Muslims, educational spaces and other Islamic religious institutions are
built on waqf land (Qahaf, 2005). Although waqf has existed since the entry of Islam to Indonesia,

Jurnal Mahkamah: Kajian Ilmu Hukum dan Hukum Islam, Vol. 6, No.1, Juni 2021 P-ISSN: 2548-5679
DOI: 10.25217/jm v6i1.1246 E-ISSN: 2527-4422
18 Muh. Mujibur Rohman: The Benefit Principles of Istibdal on Wakaf

the system of waqf being organized is still relatively new. Anshori argues that the rules regarding
the source of waqf law in Indonesia, related to the procedures, and practices of waqf, can be said
to be new (Anshori, 2004).
The definition of waqf based on the Islamic Law Compilation (KHI) is “the legal act of an
individual or group of people or legal entities that separates part of their property and
institutionalizes it for all eternity for the purpose of worship or other public purposes in accordance
with Islamic teachings” (Tim Redaksi Nuansa Aulia, 2015). Another definition of waqf is in Law
No. 41 of 2004 concerning Waqf. “The act of wakif to separate and/or hand over part of his
property to be used forever or for a certain period of time in accordance with his interests for the
purposes of worship and/or general welfare according to shari’ah (Undang-Undang Republik
Indonesia Nomor 41 Tahun 2004, t.t.).
Waqf is a work of worship and Islamic philanthropy, the substance of waqf itself is more
dominant in social worship. This shows that waqf is one of the many similar acts of worship, such
as good deeds, shadaqah, donations and others, all of which are a form of charity (charity table
endowment) (Kementerian Agama Republik Indonesia, 2017). In principle, waqf contains a
mashlahat objective, where people who donate their assets (read; wāqif) will receive a reward from
Allah SWT. as an investment in the afterlife. Apart from this, implicitly the spirit of the existence
of waqf is to build the economy for the welfare of the people. As in Article 5 of Law no. 41 of
2004 concerning Waqf, “waqf functions to realize the potential and economic benefits of waqf
property for the benefit of worship and to advance public welfare” (Undang-Undang Republik
Indonesia Nomor 41 Tahun 2004, t.t.).
As with the terms and conditions of waqf in general, it is waqīf (person who waqf), mauqūf
bih (object of waqf), mauqūf alaih (recipient of waqf), shighat (statement or pledge of waqf) (Al-
Zuhaili, 1985). While in Article 6 of the Waqf Law no. 41 of 2004 concerning Waqf, it is explained
that the elements of waqf include; Wakif, Nazhir, waqf property, waqf pledge, the allocation of
the waqf object and the period of the waqf. Basically, the room for the discussion of waqf lies in
the objects that are waqf, so that from this waqf object, it gives rise to different legal interpretations
among scholars, ranging from definitions to other complex issues such as exchange or status of
waqf objects known as istibdāl. Istibdāl under the pretext of benefit as part of the dynamics of
waqf law, it still causes polemic. In the concept of fiqh, the object of waqf must be eternal (baqāu
'ainihi). This is contradictory (there is a gap) if the object of waqf will be done istibdāl, where the
material or the concrete form of the waqf object will change (impermanent) so that it is out of the
path of fiqh stipulation. The existence of istibdāl is carried out as already explained as a form of

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mashlahah, because as the age of waqf objects develops, it will certainly experience changes or
decline in value so that the way to remain productive is with istibdāl.
The need for the principle of benefit that is built not to injure the law of waqf itself. The
use of mashlahah that seems free to be used as an excuse in sparking religious law tends to be an
opportunity or misuse that is no longer mashlahah. Therefore, the practice of istibdāl which is
considered legal in Indonesia with the laws and regulations that govern it, it is necessary to study
the principle of benefit istibdāl using the analysis of dhawābith al-mashlahah al-Būthi, by
presenting the research focus as follows; 1) what is the concept of istibdāl in fiqh and Indonesian
representation ?; 2) What is the procedure for istibdāl waqf in the context of Indonesian waqf fiqh
?; 3) How is the construction of mashlahah principles in istibdāl waqf practice based on
dhawābithal-mashlahah al-Būthi?
Research Method
Method is a very essential thing (Suryabrata, 1998). Even with a method, science will be
accurate and measurable (Arfa & Marpaung, 2016). This research used a descriptive qualitative
approach with the type of normative (doctrinal) research that positions the law as a norm system
building (M, 2017). The data analysis conducted by the author was in the form of content analysis
by drawing valid conclusions from several literature books or documents (Satori & Komariyah,
2017). The analysis procedure used Milles and Huberman’s flow model with stages; 1. Reduction,
reducing data related to istibdāl both in the concept of fiqh and Indonesian waqf with the analysis
of dhawābithal-mashlahah al-Būthi; 2. Data display, the author will describe the data obtained
regarding istibdāl waqf in the form of tables, charts and others with the aim of making it easy to
understand. Furthermore, 3. Conclusion drawing/verification, from the results obtained in the last
step analysis was to draw conclusions (Satori & Komariyah, 2017). With the data analysis,
research will be more focused and organized than other methods that were often used by many
researchers.
Conceptualization of Ibdal-Istibdāl of Waqf Objects
Waqf is a charitable investment whose rewards will continue to flow (amal Jariyah) to
wāqif as long as the waqf object is still there. Therefore, the immutability of waqf objects (baqāu
'ainihi) is always a consideration in waqf. So that changing waqf objects sometimes becomes a
complicated issue, because preserving the sustainability and existence of waqf objects is a
necessity for anyone and rewards will always flow to waqif (Rahman & Amanullah, 2016). Waqf
assets may not be traded, cannot be inherited, cannot be granted and so on. However, in order to
maintain the lasting benefits of the waqf objects, the waqf assets can be transferred on the grounds
that they are no longer productive, damaged, neglected, obsolete and so on which can reduce the

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benefits of these waqf objects. So that the objects that have been donated do not function as they
should. The transfer of status of waqf property is known as the exchange of waqf property.
Exchanging in the Civil Code is known as Ruislagh, which means a change based on
government approval (Tim Redaksi Kamus Besar Bahasa Indonesia, 2005). In the Big Indonesian
Dictionary (KBBI) exchanging over means exchanging goods without adding money (Tim
Redaksi Kamus Besar Bahasa Indonesia, 2005). While in the study of Islamic law (Fiqh) the
exchange of waqf property is known as ibdal and Istibdāl.
Etymologically (lughat) kataibdāl (‫ )إبدال‬is taken from the root word ‫ بدال‬- ‫ يبدل‬- ‫ بدل‬which
means to change or replace something (Anis, 1987). Whereas the word istibdāl (‫ )إستبدال‬is a mash-
form with the same root word, it’s just that there are additional hamzah washal (‫)أ‬, sīn (‫ )س‬and ta
'(‫)ت‬, so that initially ‫ بدل‬becomes ‫ إستبدل‬by following wazan ‫( إستفل‬istaf'ala), one of the faidah
meanings of the wazan is al-tahawwul (to move) (Bin Ali, t.t.). So etymologically (lughat) the
word istibdāl itself means to divert or replace something.
Al-Kabisi revealed that ibdal is the sale of waqf objects to buy other goods to replace them
(exchange), while Istibdāl is more about the practice of replacing other goods in exchange for sold
waqf objects (Al-Kubaisi, 1977). Ahmad Sidiq as quoted by Furqan, the meaning of istibdāl is
implemented into two meanings; first, in a broad sense, it is the purchase, sale and exchange of
waqf objects; second, in a narrow sense, it is a cash purchase as a waqf object (Furqon, 2017).
From the above statement, it can be understood that the exchange of waqf objects (istibdāl)
in classical fiqh is closely related to practice or an example not an independent textual definition.
al-Sayyid Sābiq emphasized that the istibdāl in question is the exchange of waqf objects that are
already deemed inappropriate (the benefits) by selling or exchanging them, with the proceeds from
the sale the money is bought for similar goods (form and benefits), but more feasible with previous
waqf objects. . This is intended for the benefit. Even in this case, Imam Ahmad argued on the
incident of Umar bin Khattab who moved the old Kufah mosque to another place, by making its
original place a market (Sābiq, 2004).
The dynamism of waqf always creates problems, various problems in the problem of waqf
continue to develop, including the problem of istibdāl. The existence of an exchange (istibdāl) of
waqf objects between whether or not it is still a problem, so that the management of the waqf
object becomes more comprehensive. Istibdāl itself is a form of maslahah in preserving or the
existence of waqf objects as charity. In Indonesia, the waqf regulation itself is progressive, starting
from Government Regulation (PP) Number 28 of 1977 concerning Ownership of Land and BUKU
III of the Compilation of Islamic Law (KHI) regarding Waqf Law as a result of Presidential
Instruction No. 1 year 1991 dated 10 June 1991. In addition to that, there is Law no. 41 of 2004

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concerning Waqf is also the color of the urgency of empowering waqf assets in Indonesia. In
order for the rule of law to be more binding, the government makes regulations through PP. 42 of
2006 concerning the Implementation of Law no. 41 regarding Waqf. Then, in 2018 there were
improvements to PP No. 42 of 2006 became Government Regulation (PP) Number 25 of 2018.
In the provisions, assets that have been donated under Article 40 of Law Number 41 of
2004 concerning Waqf, the prohibition of making waqf objects as collateral, confiscation, besides
that waqf objects are also prevented from being gifted, sold, inherited, exchanged and transferred
in the form of other rights transfer (Undang-Undang Republik Indonesia Nomor 41 Tahun 2004,
t.t.). Based on the provisions of Article 40, exchanging or transferring waqf objects is not
permitted, because basically the things that are donated must be eternal (baqāu 'ainihi).
This shows that in donating goods or objects, an immortality principle is required as in the
terms of waqf itself. al-Anshārī stated that there are about six conditions in the implementation of
iru waqf itself, including: 1) the existence of shighat or contract; 2) Wāqif (person who donates)
is an expert in worship (expert al-Tabarru’W); 3) the thing that is waqf (mauqūf bih) is in the
implementation of waqf (obviously); 4) not intended for things that are forbidden or immoral; 5)
recipients of waqf (mauqūf ‘alaih) must have a sense of belonging (ahlan li al-milk); and 6) objects
that are donated to be beneficial and eternal (baqāu ‘ainihi) (Al-Anshārī, t.t.). As with objects in
general, waqf items will also experience an increase in value and decrease over time. Therefore,
the provisions of article 40 letter f can be exempted through article 41 paragraph (1): ... if the waqf
assets that have been donated are used for the public interest in accordance with the general spatial
planning (RUTR) based on the provisions of the applicable laws and regulations does not conflict
with shari’ah (Undang-Undang Republik Indonesia Nomor 41 Tahun 2004, t.t.).
Article 41 paragraph (3) states: “waqf assets whose status has been changed due to the
exemption provisions as referred to in paragraph (1) must be exchanged for assets whose benefits
and exchange rates are at least the same as the original waqf assets”. Based on this article, it shows
that it is permissible to exchange waqf objects whose designation is no longer the same as the will
of wāqif (unproductive) for proper use (according to the RUTR). In carrying out the exchange of
the waqf object or what is known as istibdāl as explained earlier. Written permission is needed
from the minister with the approval of the Indonesian waqf agency (BWI) As stated in Article 41
Paragraph (2) of the Waqf Law No. 41 of 2004.
The existence of waqf regulations through Law No. 41 of 2004 is expected to be able to
solve the socio-economic problems of the people, because actually waqf itself is closely related to
the economy of the people. In the waqf law, new fiqh concepts have been introduced into
Indonesia, such as the existence of waqf objects in the form of moving objects and immovable

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objects as mentioned in Article 16 paragraph (1). From some of the explanations above, it can
be understood that the state provides an opportunity for the exchange of waqf assets (istibdāl) as
mentioned, namely when the waqf objects are not the same as wāqif's will. Not only that, istibdāl
can be done if it has received written permission from the minister with the approval of the
Indonesian Waqf Agency (BWI).
The Principles of Compilation of Islamic Law (KHI) article 225 paragraph (2) regarding
the implementation of changes to waqf objects received written approval from the Head of the
District Religious Affairs Office based on suggestions from the District Ulama Council and the
local Camat for the following reasons:
a. Because it is no longer in accordance with the purpose of waqf as promised by wakif;
b. Because of the public interest (Tim Redaksi Nuansa Aulia, 2015).
This shows that in the implementation of istibdāl itself, several parties’ approval is required
as mentioned above, in order to determine the feasibility result, both technically, economically and
financially. So that it can be determined between maintaining waqf objects or doing istibdāl. So,
it can be understood that the existence of istibdāl itself is essentially aimed at perpetuating waqf
objects and making waqf objects more productive (more useful) in accordance with the demands
of the times with several provisions that have been explained.
The View of Ulama on Waqf Objects in Istibdāl Practices
Regarding the reduced use of waqf objects, damaged or not in accordance with the previous
function, a way out must be found so that the assets do not decrease and continue to function. Even
selling or exchanging these waqf objects for other objects that can fulfill their original purpose is
not prohibited (Suhendi, 2002). The substance of the value of the waqf itself lies in the object that
is waqf or mauquf bih. The scholars agree that mauqūf bih (waqf objects) must be in the form of
assets (valuable items), have a nominal value or can be sold (mutaqawwam), visible (not majhul)
or present when waqif is given and the property of wāqif is perfect (Al-Zuhaili, 1985).
Based on these criteria, comply with the provisions of Article 16 paragraph (1) of Law
Number 41 Year 2004 concerning Waqf, that waqf objects consist of two kinds, including,
immovable objects and movable objects. Immovable objects in accordance with Article 16
paragraph (2): a) Land rights in accordance with the provisions of the prevailing laws and
regulations, whether registered or not; b) Buildings or parts of buildings standing on the land as
referred to in letter a; c) Plants and other objects related to land; d) ownership rights to apartment
units in accordance with the provisions of the prevailing laws and regulations; e) Other immovable
objects in accordance with the provisions of sharia and applicable laws and regulations. While the
category of movable objects, as stated in Article 16 paragraph (3), are assets that cannot be used

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up due to consumption, including: money, precious metals, letters valuable, vehicles, intellectual
property rights, lease rights and other movable objects in accordance with the provisions of sharia
and applicable laws and regulations.
In addition, based on Government Regulation (PP) no. 42 of 2006 concerning the
Implementation of Law no. 41 regarding Waqf. Article 15 states that movable objects are divided
into two parts, including: movable objects other than money and movable objects in the form of
money. Furthermore, Articles 19 and 20 explain moving objects other than money by considering
two aspects; first, based on its waqable nature. Such as ships, aircraft, motorized vehicles,
industrial machinery or equipment that are not embedded in buildings, metals and precious stones
or other objects classified as movable objects because of their nature and have long-term benefits.
Second, based on statutory regulations as long as it does not conflict with sharia principles. Such
as securities (shares, Government Securities, bonds and other securities that can be valued in
money), intellectual property rights (copyright, brand rights, patent rights, industrial design rights,
trade secret rights, integrated circuit rights, protection rights plant varieties and others), and other
movable property rights (Peraturan Pemerintah (PP) No. 42 Tahun 2006 tentang Pelaksanaan
Undang-undang Nomor 41 Tahun 2004 tentang Wakaf, t.t.).
Figure 1. Distribution of Waqf Objects
Not moving
Waqf Objects Money
Moving
Others (besides money) Based on character

Based on the law

There was a mistake or a difference in opinion among the scholars regarding the transfer of
status of waqf or istibdāl objects. The following are the opinions of several schools regarding
whether or not it is permissible in istibdāl practice:
1. Hanafi School of Thought
Imam Abu Hanifah confirmed the existence of istibdāl in immovable objects other than
mosques (Al-Zuhaili, 1985). In fact, he stated, even though the mosque was deemed no longer
functioning properly, such as the absence of people praying at the mosque (unproductive),
istibdāl still not allowed (Al-Zuhaili, 1985). However, for waqf other than mosques, there were
differences of opinion among the Hanafi schools. Like the mosque lights that were not used,
according to Muhammad bin al-Hasan, they were returned to their owners (wāqif) or their heirs,

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while according to Abi Yusuf they were moved to another mosque (Al-Zuhaili, 1985). There
are several things to consider whether it is permissible to do istibdāl for waqf objects other than
mosques:
a. Waqf objects (mauqūf bih) as a whole are no longer useful;
b. There is no addition or development to waqf objects;
c. Sales practice does not hide ugliness (defects);
d. The person who replaces (mustabdil) or qadhī must be someone who has knowledge
so that in istibdāl practice there is no falsehood.
e. The object that is replaced is an immovable object (it cannot be money);
f. Waqf objects may not be sold to people who are not accepted by the audience and
have no religion (Al-Zuhaili, 1985).
This shows that the Hanfi school of thought does not allow istibdāl to moving objects
such as dirhams and dīnār (rupiah in the Indonesian context). However, according to some
scholars (ba'duhum) it is permissible to do istibdāl with money on the condition that a mustabdil
is qadhī al-jannah (Al-Zuhaili, 1985).
2. Maliki School of Thought
The measuring point of the waqf object in the Maliki school of thought is that it is of
benefit not the eternal nature of the item. In a broad sense, the priority of waqf in the Maliki
school of thought is eternal benefits (Al-Zuhaili, 1985). Therefore, it is permissible to donate
money because it is eternal, it is not eternal. There are three conditions for doing istibdāl or
transferring waqf objects in the Maliki school of thought: First, this is not a mosque based on
ijma’. Second, immovable objects must not be istibdāl except udzur. Even selling immovable
objects is allowed by observing need or need, for example for road widening. Third, it is
permissible to do istibdāl for moving objects or animals whose benefits or functions are no
longer felt or are not productive (Al-Zuhaili, 1985).
Based on this condition, it is not permissible to perform istibdāl only for mosques, while
movable and immovable objects other than mosques may be sold or transferred (istibdāl)
provided that they are no longer in accordance with their function or benefit (not productive).
3. Syafi’i School of Thought
The Syafi’i school of thought is a school that is very careful, and even tends to
complicate the practice of istibdāl. Regarding immovable objects such as the Syafi'i madzhab
mosque, it does not allow istibdāl, even though it is felt that the mosque cannot be occupied
even though it collapsed. This is because the mosque whose ownership has been donated has

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moved to Allah SWT, and those who are allowed to only maintain or care for the mosque
(Al-Zuhaili, 1985).
The concept of waqf for the Syafi’i school is the eternal value of the waqf itself, in
contrast to the Maliki school of thought (Al-Malībāri, t.t.). It meant that the Syafi'i school
prioritizes the permanence of waqf objects, so it is not permissible to do money waqf, because
dzahir the things will disappear when they are spent as well as not allowed to do istibdāl.
Therefore, if the waqf object is replaced or sold, the wāqif will no longer receive the reward
from the waqf object. In connection with the immovable waqf object other than the mosque,
according to the opinion that is permissible. Such as selling mosque fences that are worn or not
suitable (damaged), which with the proceeds from the seller is intended for the benefit of the
mosque (Al-Zuhaili, 1985).
4. Hambali School of Thought
The Hambali school of thought allows the istibdāl of waqf objects - even the impression
of making it easier - by considering the benefit by not distinguishing between heavy objects or
not (Sābiq, 2004). Apart from that, the Hambali school of thought does not require that the
istibdāl instrument be of the same type. In that sense, it is permissible to replace waqf objects
with other types. Because what is meant by the existence of waqf itself is the benefit, not the
type. Istibdāl ability itself only occurs in a state of dharurah (Al-Zuhaili, 1985). An emergency
can change the law to permitted (originally prohibited). Allowing waqf objects to malfunction
indicates that the goals of muwāqif and mauqūf alaih are not achieved and this is a damage that
Allah does not like (Waluya, 2018). Dharurah is referred to as burning, collapsing, and the
existence of waqf objects that are not productive again (Erden, 2018).
Table 1. Istibdāl of Waqf Objects According to Islamic Schools Ulama
Objects
No Schools Not Moving Moving
Mosque Non-Mosque Money Besides Money
Allowed (with Not allowed Allowed
1 Hanafi Not allowed
requirements) (Khilaf) (Khilaf)
Not allowed
Not allowed
2 Maliki (except having Allowed Allowed
(Ijma’)
Udzur)
Allowed
Not allowed Allowed
3 Syafi’i Not allowed (Does not run
(Muthlaq) (Maslahah)
out quickly)
4 Hambali Allowed Allowed Allowed Allowed

The practice of waqf in Indonesia, as in the prevailing laws and regulations, is more inclined
to an opinion that allows istibdāl. In addition, so that the implementation of istibdāl is effective

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26 Muh. Mujibur Rohman: The Benefit Principles of Istibdal on Wakaf

and seems more productive, in article 41 paragraph (3) of Law no. 41 of 2004 concerning Waqf
states: ... must be exchanged for assets whose benefits and exchange rates are at least the same as
the original waqf assets”. Meanwhile, the istibdāl instrument itself can be classified; 1) Istibdāl
with similar objects (more importantly); 2) istibdāl with dissimilar objects; 3) partial, it is selling
part of the waqf property, with the proceeds from the sale being used to finance the development
of the remaining part of the waqf land that was not sold; 4) collective, the overthrow of
unproductive waqf assets with productive assets (Abdoeh, 2020).
Based on the above discussion, it can be understood from all four schools of thought, all of
which allow istibdāl, only khilfiyah occurs between istibdāl which is applied to immovable objects
such as mosques or non-mosques and is different between money and non-money. On this basis,
it can be seen that the existence of istibdāl itself is an empowerment of waqf objects by observing
the benefit and maintaining the appropriateness of the waqf object itself so that it remains
productive as wāqif wants in its pledge.
Istibdāl Procedure for Waqf Objects in Pancasila Fiqh
Regarding the technicality of istibdāl itself, as in the applicable laws, that there are several
stages that must be passed in carrying out istibdāl itself. The following are the procedural stages
in accordance with the applicable laws:
1. Submission of Written Permits
The implementation of istibdāl itself must have written permission from the related
parties as in the previous discussion. The license referred to is based on Article 49 PP No. 25
of 2018 amendments to PP No. 25/2006 is a written permit from the minister based on the
approval from BWI. To obtain this permit, First, Nazhir applied for a written permission
directly to the Minister (the minister in charge of government affairs in the religious sector).
Second, Nazhir applied for written permission to the Head of the Regional Office. As stated in
Article 51PP No. 25 of 2018.
In applying for the permit, Nazhir must attach several documents: a) The document of
waqf property includes the Waqf Pledge Deed, the replacement deed for the Waqf Pledge Deed,
a certificate of waqf, a certificate of assets, or other proof of legal ownership of assets in
accordance with the provisions of laws and regulations; b) documents of the exchanged assets
in the form of certificates or other proof of legal ownership of the assets in accordance with the
provisions of statutory regulations; c) the results of the valuation of waqf assets to be exchanged
and exchanged by Appraisers or Public Appraisers; and d) Nazir identity cards.
2. Assessment of the Exchanging of Waqf Assets

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Based on Article 50 paragraph (4) PP. 25 of 2018, valuation of exchange of assets or

public appraisal is provided by agencies or parties that will use the donated land in accordance
with the provisions of laws and regulations (Peraturan Pemerintah (PP) Nomor 25 Tahun 2018
Tentang Perubahan Atas Peraturan Pemerintah Nomor 42 Tahun 2006 Tentang Pelaksanaan
Undang-Undang Nomor 41 Tahun 2004 Tentang Wakaf,t.t., t.t.). In accordance with the
contents of Article 49 paragraph (3) PP. 25 of 2018 that the exchange of waqf objects (istibdāl)
has an area of up to 5,000 m2 (five thousand square meters). The valuation of the exchange of
waqf assets also focuses on the value and benefits of the exchanged assets, so that the exchange
rate is at least the same as the original waqf property.
3. Establishment of the Determination Team
As stated in Article 50 paragraph (2) PP No. 25 of 2018 the determination team in
question is a team consisting of: a) District/city government; b) district/city defense office; c)
District/city Indonesian Ulama Council; d) district/city office of the ministry of religion; d)
Nazhir; and e) sub-district religious affairs office. The function of the determination team in
this case is in accordance with Article 50 paragraph (1) to determine the value and benefits of
the exchange assets based on the provisions of laws and regulations. Based on Article 51
paragraph (1) PP No. 25 of 2018 The establishment of this determination team is carried out 5
(five) working days after receiving a request from Nazhir, besides that the determination team
will submit a recommendation for the exchange of waqf assets no later than 5 (five) working
days after the appraiser or public appraiser submits the results assessment to the head of the
office and a copy to the appointment team.
4. Approval
After the determination team has received the results of the assessment of the exchange
of waqf assets, the results of the assessment will be sent to the Minister or Head of the Regional
Office (according to the path of permit application from the start) and to BWI within 4 (four)
working days. After that, BWI gives approval to the Minister or Head of Regional Office no
later than 5 (five) working days after receiving the results of the valuation of the exchange of
assets for waqf assets. As stated in Article 51 paragraph (1) and (2) PP No. 25 of 2018.
5. Written Permission
After all channels and procedures are carried out and fulfilled, the Minister or Head of
Regional Office on behalf of the Minister (according to the path of the permit application from the
start) issues a written permit to exchange waqf assets no later than 10 (ten) working days after
receiving approval from BWI provention.

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That is the flow of the process of the practice of rolling over or istibdāl for waqf objects
based on the provisions of the applicable legislation.
Mashlahah and Its Boundaries According toal-Būthi
Allah SWT is shari’ (lawmaker), where every law is Allah SWT determine whether an
order (amr) or prohibition (nāhī) contains mashlahah in it. The purpose of the syari’at itself is to
realize what is called benefit or in other words the laws are made for the benefit of humans both
in the world and in the hereafter (Syarifuddin, 2011). More explicitly, Abu Zahrah said that
essentially the goal of Islamic law itself is benefit, he even revealed that the law is Allah SWT
stipulate what is contained in the Qur’an and Sunnah all for the purpose of mashlahah (Abu Zahrah,
1958).
Etymologically or the language meaning (lughat) the word mashlahah (‫ )مصلحة‬is a masdar
form of the word shaluha-yashluhu- Shulāhan (‫ صالحا‬- ‫ يصلح‬- ‫ )صلح‬which means eliminating
ugliness or something useful, is the opposite of fasada (‫ )فسد‬which means bad (Anis, 1987). In that
sense, the word mashlahah itself always connotes good deeds. In terms of al-Ghazali defines
mashlahah with things that bring benefits and keep away from harm (damage), and maintains the
goals of syara’ (Syarifuddin, 2011). Mashlahah is part of the discussion of ushul fiqh which is
included in mashādir al-ahkām al-syar'iyah. The mashlahah was so incessant that it disturbed
several Muslim scholars and academic practitioners to develop this mashlahah in the development
of Islamic law methodology, one of which is Sa'īd Ramadhān al-Būthi.
Muhammad Sa'īd Ramadhān al-Būthi was born in Jeilka Village, Buthan Island in 1347
AH or to coincide with 1929 AD. Shaykh Hasan al-Jabnakah al-Maidani. Two years after that, he
completed his undergraduate education at the Faculty of Syari’ah al-Azhar University with the
degree Lc. The following year he attended lectures at the Faculty of Arabic at the same University
and successfully earned a Diploma. Then he continued his career as a student at the Syari'ah
Faculty of Damascus University (1960). At the end of his study, he continued at al-Azhar
University again to hold a Doctor of Islamic Law (1965). Furthermore, his life was continued for
a career as an academic as Deputy Dean of the Faculty of Syari'ah Damascus University (1965
after graduating from the Doctoral program), lecturer at the Faculty of Syari'ah Damascus
University (1970), and in 1975 he won the title of professor, became Dean (1977) and in 2002 he
served as Chair of the Department of Aqidah and Religion at the same University. He mastered
four languages, including Arabic, Turkish, Kurdish and English. He died Thursday night Friday
March 21, 2013 at the Jamik al-Iman mosque in a suicide bomb explosion while filling out a
routine study of the book “al-Hikām” by Ibn Athaillah al-Askandari (Fauzi, 2016).

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al-Būthi concerned seeing that mashlahah freely became material for study which was
felt to be no longer in accordance with maqāshid al-syarī'ah. In that sense, mashlahah will later be
made as an analytical knife that deviates from Islamic studies, as it is known that mashlahah is the
essence of the implementation of sharia. For his concern he then composed a book as a result of
his dissertation entitled “Dhawābith al-Mashlahah fī al-Syarī. ‘ah al-Islamiyyah”. This book is
divided into three discussion chapters. First; specifically, to discuss the arguments that
complement benefit, and their rejection of scholars who classify mashlahah into mashlahah in the
world and the hereafter. Second; discuss the limitations of the mashlahah al-Syar'iyah in detail into
five things. 1) not allowed to support maqāshid al-syarī'ah; 2) do not disguise the al-Qur’an; 3) not
covering al-sunnah; 4) do not support qiyās shahīh; 5) does not eliminate the mashlahah which is
stronger or equivalent. This chapter also discusses the rules of al-musyaqqah tajlib al-taisir,
tabaddul al-ahkām bi tabaddul al-azmān and the concept of hīlah law. Third; discusses mashlahah
al-mursalah (Al-Būthi, 1982).
al-Būthi itself defines al-mashlahah etymologically as something that contains benefits,
whether the benefits are obtained by bringing benefits or even by rejecting evil. Therefore he
equated al-mashlahah with al-manfa’ah both in terms of measure (wazan) and meaning (Al-Būthi,
1982). While mashlahah in terms is defined as:

‫ طبق ترتيب معني‬،‫ وأمواهلم‬،‫ ونسلهم‬،‫ وعقوهلم‬،‫ ونفوسهم‬،‫ من حفظ دينهم‬،‫"املنفعة اليت قصدها الشارع احلكيم لعباده‬
."‫فيما بينها‬
“Al-mashlahah is a benefit which is the goal of syāri’ (Allah and His Messenger) to his servants
with the aim of preserving religion, soul, intellect, descent and property according to the level of
its usefulness” (Al-Būthi, 1982).
In accordance with the purpose of this book being written, the concept of mashlahahal-
Būthi broke the opinion of those who divided mashlahah into two levels, including mashlahah
dunyawiyah and mashlahah ukhrawiyah. According to him, the essence of syari’ah al-Islamiyah
(akidah, ibdah and mu’amalah) is all aimed at realizing the benefit of my servants, both for the
purposes of the world and the hereafter. He also emphasized that the work of the world as in terms
of mu’amalah if it is intended for worship, then the world will come to benefit, and in the hereafter
will get the pleasure of Allah SWT and heaven. Likewise, people who hold on to worship work
such as increasing dhikr and obey, then in the afterlife he will get His reward and pleasure. While
in the world he will find it easy because he maintains the syari’at (Al-Būthi, 1982). Therefore,
there is no advantage in dividing mashlahah into mashlahah dunyawiyah and mashlahah
ukhrawiyah.

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In addition, al-Būthi also rejected the concept of mashlahah al-Thūfi. In his concept, al-
Thūfi prioritizes reason in the concept of benefit, so he insists that if maslahah and text are in
conflict, then the mashlahah will be won. This is certainly not a good thing for al-Būthi. If
mashlahah must be won over the text, then there are likely times when lust becomes a priority in
sparking laws on behalf of mashlahah. To stem this, al-Būthi rejected the concept of mashlahah
al-Thūfi for four basic reasons: First, it is impossible to prioritize mashlahah over texts because
the text itself was revealed to contain benefits for beings. Second, the text is al-dalīl al-kullī
(standing alone) while mashlahah is part or juz of it. Third, al-Thūfi thinks that mungkar al-ijma’
(people who deny ijma’) still use maslahah, in the sense that mashlahah is superior to ijma’.
However, if we examine more deeply, al-Thūfi himself makes ijma’ a strong argument among the
nineteen arguments that he admits to exist. Fourth, al-Thūfi argues that the texts contradict one
another, as is the difference between fiqh scholars. al-Būthi denied that the differences among the
schools of thought were only in the interpretation of the texts. After all, if the text is different, it
shows the text does not come from Allah SWT. but they are not (Al-Būthi, 1982).
So that mashlalah is not used freely, in the book “Dhawābith al-Mashlahah fī al-Syarī'ah
al-Islamiyyah”, al-Būthi limits the use of mashlahah to five principles. First, it is included in the
scope of maqāshid al-syarī'ah based on the measurement of the needs of darūrī, hājī and tahsinī.
Second, it does not contradict the Qur'an. Third, it does not conflict with al-Sunnah. Fourth, it does
not conflict with qiyās and the fifth does not conflict with other benefits which are stronger and/or
higher or equal (Al-Būthi, 1982).
Based on this discussion, al-Būthi seems to have narrowed the space for using mashlahah.
The construction he carried out was intended so that the mashlahah was not freely used as the basis
for legal istimbath. By not ruling out any misuse of use, it will lead to the freedom of legal products
that are not in accordance with the concept of mashlahah itself.
Istibdāl in Dhawābith al-Mashlahahal-Būthi Analysis
Istibdāl in Indonesia gets space or legality from the government. This is justified by the
existence of laws regulating it. All scholars agree that there is no istibdāl, but if the things being
donated are deemed no longer productive or not in accordance with what the wāqif wants in their
vows, then the scholars allow istibdāl on the pretext of benefit. Ibn Taymiyyah, as quoted by al-
Sayyid Sābiq, emphasized that istibdāl can be carried out based on the consideration that there is
a desire and that there is a superior benefit (Sābiq, 2004).
Like the previous discussion, that mashlahah is the estuary of the syari’at that Allah applies
to his servants. This includes istibdāl practices. In this research, the author will further examine
the existence of istibdāl practices in Indonesia as legal and justified by the state from the point of

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view of dhawabit al-maslahah al-Būthi. In the previous explanation al-Būthi limited the use of
mashlahah to five principles (dhawābith al-mashlahah) (Al-Būthi, 1982):
1. Entering the Coverage of Maqāshid al-Syarī'ah
Maqāshid al-Syarī'ah or what is known as al-kulliat al-khams is the purpose of
implementing the syari’at, in this case there are five objectives of the syari’at, including
guarding religion (‫)حفظ الدين‬, guarding the soul (‫)حفظ النفس‬, maintaining reason (‫)حفظ العقل‬,
guarding offspring (‫)حفظ النسل‬, guarding property (‫)حفظ المال‬. Al-Būthi emphasized that a thing
that aims to realize maqāshid al-syarī’ah either collectively or partially it is said to be mashlahah
(Al-Būthi, 1982). In the practice of overthrowing or transferring the status of waqf property
(istibdāl), it is the scope of maqāshid al-syarī’ah which is included in the part of maintaining
property (‫ )حفظ المال‬to remain productive. Safeguarding these assets is also included in istibdāl
objectives based on the principle of benefit (Iqlima et.al., 2017).
The benchmarks in maintaining the benefit, to determine the benefits and not of a thing
to be in accordance with the objectives of the Shari’ah, is to review the basic needs of humans.
Human needs are stratified and sequential. The needs rating includes; darūrī (primary) is an
absolute and fundamental need that must exist for human life. Hājī (secondary) is a need that if
not fulfilled does not damage human life itself (not to the primary level) and tahsinī (tertiary)
needs that only beautify life (Syarifuddin, 2011).
Figure 2. The Pyramid of Mashlahah

Tahsinī (tertiery)

Hājī (secondary)

Darūrī (primary)

The need to do istibdāl can be justified on the grounds that in accordance with the
maqāshid al-syarī'ah in the form of safeguarding property (‫)حفظ المال‬. However, to measure the
level of benefit it is necessary to consider the existence of waqf objects (mauqūf bih). that is,
not moving and moving. Including immovable objects is a mosque. Doing istibdāl in a mosque
can be justified if it is not productive, besides that the mosque is also a place of worship (the
needs of many people) so doing istibdāl includes benefits at the dharūriyah level. While doing
istibdāl at other than the mosque (whether moving or not) with religious purposes can be
justified if it reaches the dharūriyah level. If it is still in the level of need for hājī (secondary)
and tahsinī (tertiary) then what is enforced is the maintenance of non-istibdāl waqf objects.

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2. Not being in conflict with the Qur’an

The meaning of not being in conflict with the Qur'an is that benefit does not contradict
the text either dzahir or implicitly (Al-Būthi, 1982). In literature there is no text of the al-Qur’an
which prohibits or orders the existence of istibdāl. In the sense that istibdāl is a legal formulation
that has developed among scholars by interpreting texts in the form of hadith. However, in the
context of donations from Allah SWT. openly recommending the existence of infak with things
loved (mimmā tuhibbūn):

َّ ‫لَ ْن تَنَالُوا الْر َِّب َح ََّّت تُنْ رف ُقوا رِمَّا ُرُتبُّو َن َوَما تُنْ رف ُقوا رم ْن َش ْي ٍء فَإر َّن‬
.‫اَّللَ برره َعلريم‬
By no means shall you attain Al-Birr until you spend out (for Allah) of what you love; and
whatever you spend (from what Allah provides you, what you spend for Allah), Allah surely
knows it (Al-Qur’an, Ali ’Imran (3): 92, t.t.).

The above verse according to the ulama’s view is a general verse explaining the
existence of infak with good things, while waqf is an act of giving wealth in goodness (Al-
Zuhaili, 1985). Based on this verse Allah SWT. ordered to donate something that is loved or
the best. If it is returned to the definition of waqf, it is clear that the benefits and permanence
of waqf objects are the highest priority. So that the existence of istibdāl with the aim of benefit
is justified, because it maintains the usefulness and immutability of the object being donated
(principle of benefit).
3. Not being in conflict with al-Sunnah
The Sunnah referred to the words, deeds and decrees which are continuous with the
Prophet Muhammad, both in the form of hadith mutawatir and Hadith Ahad (Al-Būthi, 1982,
hlm. 161). There are several traditions on which the basis for the prohibition of istibdāl.
However, on the other hand there is a hadith which explains the existence of the istibdāl
commandment. This is what is the pros and cons of the ulama in istibdāl practice. Examples of
hadith on which to base istibdāl:

.‫ أنه ال يباع أصلها وال يورث وال يوهب‬...

This hadith tells that during the khaibar war Umar bin Khattab got booty in the form of land,
then he asked the Prophet Muhammad’s opinion on the land. Rasulullah Saw ordered to donate
the land or donate the land. Umar chose to donate, then the Prophet said: “... the things that are
donated basically cannot be sold, cannot be inherited and cannot be given” (Al-‘Asqalāni, t.t.).
Based on this hadith, it is clear that the practice of istibdāl waqf objects is not justified.
Another hadith as the basis for the existence of istibdāl is:

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‫ لنقضت الكعبة و أللصقتها‬،‫ لو ال أن قومك حديثو عهد جباهلية‬:‫أن النىب صلى هللا عليه و سلم قال لعائشة‬
.‫ و ابابخيرج منه الناس‬،‫ اباب يدخل الناس منه‬،‫ابألرض و جلعلت هلا اببني‬
Prophet SAW. said to ‘Aisyah: “if it wasn't for the existence of your people who were still
attached to ignorance, of course I would have ordered that the Ka'bah be torn down. And I will
wake up with two doors from it, one entrance being the other as the exit” (Sābiq, 2004,).

This hadith is used as the basis that the Prophet had wanted to change the ka’bah because
the ka’bah that existed at that time was not that stood exactly like in the time of Prophet Ibrahim
As. but because the Arabs at that time were still adhering to the era of ignorance, he did not do
it.
The two traditions above are equally strong, narrated by Bukhari. However, if we
examine it in depth, there are differences between the two traditions. The first hadith prohibits
the sale, inheritance and gift of waqf objects. Meanwhile, the second hadith shows that it is
permissible to change the waqf object because there are things that have changed from the waqf
object. Mafhum Mukhalafah, the reverse pradikma of the second hadith is that if there was no
change in the ka’bah from the time of Prophet Ibarahim to the time of Prophet Muhammad,
surely the Prophet would not have changed the ka’bah. However, the desire to change is there
because there is a change. Likewise, with istibdāl, it will be carried out if the waqf object which
was previously no longer productive.
4. Not being in Conflict with Qiyās
Istibdāl in this case is in line with qiyās, as the two traditions above contradict. The
existence of istibdāl is qiyās against the actions of the Prophet who wanted to change the ka’bah
building because there is the same illat, it is the waqf object has undergone a change - not the
same as what wāqif has promised - then the law is permissible to do istibdāl. al-Būthi
emphasized that qiyās is the keeper of mashlahah in branch matters (furu’iyah), qiyās also has
a law of origin which is based on the naqli argument (Al-Būthi, 1982). Therefore, making the
above hadith as the basis for the existence of istibdāl is a practice of using qiyās itself.
5. Not being in conflict with other benefits that are stronger or higher or equivalent
It is common sense that the law enacted by Syāri‘ contains benefits, to measure the level
of benefit it is necessary to consider the level of benefit, consider the scope of the mashlahah
and consider the strength of the conclusion (natījah) (Al-Būthi, 1982). Maintaining waqf
objects as they should be a benefit, but if the waqf objects have been assessed for their reduced
benefits and are not in accordance with what the wāqif wants in their pledge, then doing istibdāl
is certainly more mashlahah than leaving it malfunctioning or unproductive. This is in
accordance with the rule:

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.‫املصلحة العامة مقدم على املصلحة اخلاصة‬

This rule emphasizes that if there is a conflict between two mashlahah, it is the general
mashlahah and the special mashlahah, then what is favored is the benefit in general (Al-
Syathibi, 1973).
From the author’s analysis on istibdāl practice which is reviewed with the dhawābith al-
mashlahah (limitation of benefit), the perspective of al-Būthi mainly in fiqh Pancasila shows that
the argument of benefit as a istibdāl consideration can be justified and in accordance with the
principle of al-Būthi's dhawābith al-mashlahah. Departing from this, the need for special principles
that are built into istibdāl practices, especially in Indonesian fiqh. The istibdāl principles that the
author built are:
a. There is benefit at the dharūriyah level;
b. For urgent religious purposes;
c. Waqf objects are intended for the general public;
d. There is an inadequacy or not in accordance with the will of the wāqif in the vow;
e. There is agreement of wāqif and nazhir;
f. Replaced at least with the same from the rest with better.
g. The existence of research on the exchange of waqf objects in a thorough manner
involving figures and several elements of society;
h. Follow the provisions of the syari'at and applicable laws.
Based on these principles, it is hoped that istibdāl practice in Indonesia, which has obtained
legality with the existence of several laws, will not be in the interests of the parties concerned to
carry out their intention. In that sense, the use of benefit as an excuse in istibdāl is really for
mashlahah purposes.
Conclusion
Istibdāl is an exchange of waqf objects to ensure that waqf objects become more lasting so
that they are more productive based on the demands of the times. The results of the research
showed that based on the concept of fiqh, the existence of istibdāl is legal with the aim of
mashlahah. The mashlahah scale based on dhawābith al-mashlahah al-Būthi shows that: First, the
practice of exchanging waqf objects is in accordance with the maqashid sharia concept in the form
of hifz al-mal (safeguarding property) with mashlahah levels at the dharurah level; Second, in
accordance with the demands of the Qur’an, it is the existence of istibdāl can make waqf objects
even more useful (productive); Third, in line with al-Sunnah where the Prophet had intended to do
istibdāl to Ka'bah building; Fourth, do not violate the qiyās, even the practice of istibdāl can be

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 Muh. Mujibur Rohman: The Benefit Principles of Istibdal on Wakaf 35

equated with the wishes of the Prophet in changing the Ka’bah; Fifth, the existence of istibdāl
is a form of mashlahah that is favored because it can make waqf objects more productive.
Therefore, the mashlahah principle that must be achieved is; It must be in a state of dharurah, for
urgent religious purposes, for the general public, there is an inadequacy, through the agreement of
wāqif and nazhir, replaced at least with the same, the object of waqf is examined by involving
figures and several elements of society and following the provisions of the Shari'ah and applicable
law.
References

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