RELOCATION MODEL OF WAQF LAND AND BUILDINGS IMPACTED BY SIDOARJO MUD BLOWOUT

This research aims to analyse the validity relocation of land and buildings that cannot be used according to the aim of waqf stipulated in the Islamic Sharia and the Law on Waqf, as well as the relocation model of land and buildings that are impacted by the Sidoarjo mud blowout. This is juridical-normative research that uses statutory and conceptual approaches. The results show that there are dissents among Islamic law experts on the permissibility of waqf object relocation. Then, the Law on Waqf prohibits waqf diversion, except for public interests. Then, the Presidential Decree No. 14 of 2007 and its changes do not regulate waqf object replacement. Even so, in 2020 the government has relocated 8 out of 50 waqf objects outside of the Map of Impacted Area through build swap (ruilslag), whereas none of the waqf objects within the Map of Impacted Area that is the obligation of PT Lapindo Brantas company have been substituted. According to Article 15 clause (1) and (3) of the Presidential Decree No. 14 of 2007, the waqf land or buildings should be relocated using the sales transaction scheme. Its proceeds will then be used to buy substitute waqf objects elsewhere.


Introduction
More than 15 years ago, specifically on May 29 th , 2006 an environmental disaster in the form of an underground mud blowout occurred around the exploration area of PT Lapindo Brantas at Porong District, Sidoarjo Regency, East Java Province, Indonesia. This disaster has damaged road infrastructure, electricity network, gas pipes, rivers, agricultural land, arable land, people's houses, etc. It also destroyed or wiped out waqf land and buildings such as mosques, mushola (small mosques), graveyards, and education facilities. Waqf itself is an endowment of a Muslim to a religious, educational, or charitable cause. As a response to the social and economic impacts from the still-ongoing Sidoarjo mudflow, the government has issued Presidential Decree No. 14 of 2007 on the Si- The problem is that there are also damaged, destroyed, and dysfunctional waqf land and buildings by the Lapindo mud disaster inside the map of the impacted area or inside the Sidoarjo Mud embankment. This problem happened because the government policy that is stipulated in the PD 14/2007 and its changes do not clearly regulate the responsibility of the PT Lapindo Brantas and the government to buy or to exchange the waqf land and buildings impacted by the Sidoarjo mudflow in and outside of the MIA. The vague legal norms (vage normen) on PT Lapindo Brantas' obligation to "buy" waqf land and buildings impacted by the mud in the MIA and the governmental obligation to buy" waqf land and buildings impacted by the mud outside of the MIA in Article 15 clauses (1) and (3) of PD 14/2007 implies on the vague responsibilities of PT Lapindo Brantas and the government to "buy" or to carry out ruilslag to the waqf land and buildings both in and outside of the MIA on March 22 nd , 2007. Because of that, this research on the relocation of the waqf land and buildings impacted by the Lapindo mud tries to find the ideal model in resolving the relocation of waqf land and buildings around the gas and oil mining exploration area of PT Lapindo Brantas in Sidoarjo is highly urgent.
Based on the background above, the interesting legal issues to be analyzed in this research are: (1) How is the validity of relocated waqf land and buildings according to the Islamic Sharia (Fiqh) and the Law on Waqf? (2) How is the relocation model of the waqf land and buildings impacted by the Sidoarjo mud?
This research aims to analyze and describe the relocation process of waqf land and buildings impacted by the Sidoarjo mud to find the ideal relocation model of waqf land and buildings impacted by the Sidoarjo mud. It is hoped to become a reference for the government to revise PD 14/2007 and other related laws. This is a juridical-sociological type of research that analyzes the issues on the relocation of waqf land and buildings impacted by the mud disaster in Sidoarjo based on the constitutional regulations and the empirical reality in the society or the field. In line with that, this research uses the statutory approach and the sociological approach. The research was carried out in several villages at the Porong and Jabon Districts of Sidoarjo Regency, East Java Province, Indonesia, that was impacted by the mud around the gas and oil mining exploration area of PT Lapindo Brantas in Sidoarjo Regency.

The Validity of the Relocation of Waqf Land and Buildings according to the Islamic Sharia and the Law on Waqf
Waqf is a highly recommended type of worship for Muslims as the rewards will keep on flowing even after the death of the person. 3 The term "waqf" comes from the Arabic word waqofa, meaning "to stop", "to withhold", or "to stay". 4 Generally, this term means a type of endowment whose implementation is carried out by withholding the original ownership (tahbishul ashli) on the object given for waqf to not be inherited, sold, or pawned and so that its benefit is for the public according to the willingness of the waqf giver (waqif) without obtaining honorariums. 5 Waqf means withholding the legal actions of the waqf giver on the object given for waqf to be used for the good of the public, 6 or to withhold wealth from using its benefits for the sake of getting closer to Allah (God On the position of the waqf object, Islamic scholars of the Hanafi sect opine that the waqf objects are still owned by the waqif. Also, Maliki sect scholars state that the waqf objects are returned to the waqif at certain periods according to the pledge. Then, scholars of the Shafii and the Hambali sects state that the waqf objects are cut or no longer owned by the waqif. It is owned by Allah or the public. As a consequence, since the statement of the waqf pledge, the waqif no longer has the authority to manage the waqf objects. 8 Then, the management of the waqf objects for worship or public use is shifted to the hands of the nazhir (waqf managers) according to the waqf pledge.
Experts of Islamic law (fuqaha) have differing opinions on the validity (the permissibility) of the exchange of waqf land and buildings objects that are no longer usable according to the aim of waqf as they are damaged or destroyed. The fuqaha of the Maliki sect state that these objects cannot be exchanged even though they are destroyed or are unusable. But, some Maliki fuqaha state that exchanging unusable waqf objects is permissible, so long as they are exchanged with other fixed assets. Meanwhile, for waqf objects that are current assets, the Maliki fuqaha permit their exchange so that they become functional. Then, Shafii scholars state that waqf objects in the form of fixed assets cannot be exchanged so as to become more functional. 9, 10 Thus, there is no common ground among the Islamic law experts on the validity of the relocation of no longer usable waqf land and buildings through ex- changes. Some permit it to continue the usability of the waqf objects, meanwhile, some others prohibit it as waqf objects are eternal.
In the Fiqh of Waqf, the exchange of waqf objects is called "Istibdal" or "Ibdal". Al-Istibdal means the sale of the waqf object to buy other objects as the substituting waqf. It also means releasing an object from the waqf status and exchanging it with other objects. Then, al-Ibdal is the exchange of waqf objects with other objects whose functions are either similar or not, such as exchanging agricultural land with land for buildings. 11 Fiqh scholars have dissents in responding to the "Istibdal" or "Ibdal" of waqf objects. Some complicate it, while others ease it. Some even prohibit it except in emergency conditions as exceptions (ahwal istisnaiyah). Those who prioritize the "Eternality principle" (ta'bidul ashli) state that it is absolute to maintain the continuality of the waqf objects (mauquf), meaning that the objects cannot be exchanged with anything else, moreover if the waqf object is a mosque. But, the Hambali sect believes that in emergency cases, mosques may even be sold or exchanged. The proceeds will then be used to buy new waqf objects in exchange. But, the fuqaha who prioritize the "Principle of Benefit" (tasbihul manfaah), waqf object exchange may be carried out for certain reasons. For example, that object can no longer give benefit as intended by the waqif; it is damaged; or there are other goals with greater benefit or maslahah for the public, for example, to extend mosques or to extend roads that are highly required by the society. 12 In the Law on Waqf, the case of Istibdal is categorized as a "law of exception" (al hukmu al ististna'i) as stated in Article 40 and Article 41 clause (1) of the Law on Waqf. According to Article 40 of this law, principally, "Waqf objects are prohibited from: a. becoming collateral; b. being confiscated; c. being 11 Tholhah Hasan, "Istibdal Harta Benda Wakaf," accessed on April 11 th , 2021, https://www.bwi.go.id/ 502/2010/10/27/istibdal-harta-benda-wakaf/ 12 Ibid.

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Vol. 21, No. 2, December 2021 238 granted; d. being sold; e. being inherited; f. being exchanged; or g. being substituted in the form of other transfer of rights." But, Article 41 clause (1) of the Law on Waqf states that the prohibition of Article 40 letter f is an exception if the waqf objects are used for the public according to the General Spatial Plan based on the constitutional regulations that apply and without contradicting the sharia.
Differences of opinion among the Imam Mazhab regarding the validity (permissible and not) of exchanging immovable waqf objects by means of exchanging (relocation), including according to the Law on Waqf, can be described in the following table. In terms of legal procedure, the change of status or the exchange of waqf objects according to Article 41 clause (2) of the Law on Waqf may be carried out under certain circumstances and after obtaining a written permit from the Ministry of Religion with the approval of the Indonesian Waqf Agency. The waqf object whose status has changed must be exchanged with another object whose benefit and transactional value are at least the same as the original object. Thus, according to the Law on Waqf and the Executing Laws, basically, the waqf items cannot have their legal status or own-ership changed by selling, inheriting, granting, exchanging, or transferring through other manners. But, change of status or transfer of waqf objects may be carried out through exchanges under certain circumstances and conditions. This applies to the condition of the mud disaster due to the exploration of PT Lapindo Brantas in Sidoarjo, which made waqf objects no longer usable. This waqf object exchange is carried out based on a written permit from the Ministry of Religion with the consideration of the Indonesian Waqf Agency.
The change of status or the relocation of waqf land and buildings impacted by the Sidoarjo mud may be carried out by exchanging (ruilslag) them with other objects with similar functions based on the Islamic sharia and the constitutional regulation that apply, namely the Law on Waqf. This exchange is carried out as the condition is ur- Al-Risalah 239 gent since the waqf objects can no longer be used due to the mud disaster.
Up to now, more than 15 years since the mudflow of the Sidoarjo mud, the government has only exchanged 8 out of 50 waqf object locations (land and buildings) impacted by the mudflow outside of the Map of Impacted Area (MIA) based on the Presidential Decree No. 14/2007 by exchanging them (ruilslag). The Ruilslag on these eight waqf buildings and land is carried out based on the Decree of the Ministry of Religion based on the application proposed by Nazhir who has obtained approval from the Indonesian Waqf Agency, according to the procedures of the Law on Waqf and its Executing Regulations. Since PD 14/2007 does not clearly regulate the exchange of waqf land and buildings impacted by the Sidoarjo mud, there is no clear information on the relocation of the rest of the waqf land and buildings both in and outside of the MIA.
The Decree of the Ministry of Religion on September 2020 that determined the relocation of 8 out of 50 waqf objects impacted by the mud outside of the MIA is a governmental response based on the applications for the exchange of the waqf objects impacted by the mud disaster that was proposed by waqf nazhir before the Sidoarjo Mud Control Agency was disbanded. 13 This exchange should be carried out to all waqf objects. It should not only be carried out to the waqf objects outside of the MIA that is the responsibility of the government but it must also be carried out to those in the MIA that is the responsibility of PT Lapindo Brantas. But factually, most of the waqf land and buildings impacted by the mud have not yet obtained compensation in the form of exchanges (ruilslag), even though this exchange is carried out so that the waqf functions and aims as amal jariyah (eternal re-13 Interview with Lukmanul Hakim, Head of the Coordination in Handling Social Impacts Sub-Sector, Sidoarjo Mud Center of Control (Surabaya, April 12 th , 2021). ward) from the waqif are sustainable and so that it does not stop even though the object is impacted by the mud.
Based on the description above, it can be concluded that according to the Law on Waqf, the relocation of the waqf land and buildings impacted by the Sidoarjo mud through exchanges (ruilslag) is permissible (valid). Even, the government has implemented it in 8 locations outside of the MIA. The exchange of the waqf land and buildings are obligations of PT Lapindo Brantas and the government according to their portions based on the PD 14/2007 and its changes. The governmental relocation of the eight waqf land and buildings impacted by the Sidoarjo mud was carried out based on the Law on Waqf and its Executing Regulations (positive law).

The Relocation Model of Waqf Land and Buildings Impacted by the Sidoarjo Mud Blowout
The term waqf land and building "relocation" in this paper is used concerning the agreement or the practice of exchanging waqf land and buildings at some locations that are impacted by the Sidoarjo mud blowout with the waqf land and buildings at new locations (relocation) based on the Decree of the Ministry of Religion. The waqf land and building relocation are carried out by "exchanging" the original waqf land and buildings with new ones at other locations through "exchange", "build swap", or "swap" which is commonly known as ruilslag.

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Vol. 21, No. 2, December 2021 240 (letterlijk) means "exchange of a plot of land". According to the Indonesian-Dutch dictionary, the term "persil" in Indonesian came from the word "perceel" in Dutch, meaning "a plot of land with a building", 15 or "a plot of land with a certain size (for plantations or residential houses)". 16 Initially, the term ruislag was terminologically defined as a legal action in the form of a Build Swap Agreement whose objects are land and/or buildings owned by the center or the regional governments. But, in its development, the ruislag object also includes private-owned land and buildings (individuals or private companies) 17 Even, this build swap may also be carried out to waqf land and buildings, such as the ruilslag of waqf land and buildings that are used to build highways or those impacted by the Sidoarjo mud outside of the MIA. In this case, the swapping of the eight waqf land and buildings outside of the MIA of Sidoarjo Mud was based on the Decree of the Ministry of Religion, as a follow-up of the nazhirs' proposal with the agreement of the Indonesian Waqf Agency. The build swap was carried out by the Sidoarjo Mud Center of Control by buying the exchange of waqf land in a new location (relocation) based on the Decree of the Ministry of Religion and also building the waqf objects according to their original functions. This was carried out based on the PD 14/2007 that has been changed several times, with PD 34/2012 as the most recent version.
According to Fauzia, "swapping" (ruilslag) is the exchange between one item and another, either by buying the first item 15 S. Wodjowasito then exchanging it with a new one or by relocating it. In the context of waqf, waqf swapping is called istibdal in the fiqh term. It has entered the discourse of scholars of Islamic sects in their fiqh books since the Middle Ages. The scholars have different opinions on this. Imam Shafii does not allow it, though some of his students do. Generally, Indonesians follow the Shafii sect. There are more and more cases of waqf swapping in line with the acceptance of modernization and rationalization in practicing waqf. It means that slowly, the waqf practice transformation in Indonesia becomes more developed, in line with the social and economic developments. 18 In reality, the relocation of the waqf objects impacted by the Sidoarjo mud blowout using the ruilslag model is not holistically practiced. Based on the field observation, not all of the waqf land and buildings in that area are legal-formally registered as waqf objects. Apart from that, through PD 14/2007 on March 22 nd , 2007, the government differentiated victims of the mud disaster into two, namely those inside and those outside of the MIA. This causes differing implications on who is responsible for the waqf land and buildings in and outside of the MIA, and how the realization of the waqf object build swaps are at these two locations.
In the reality in the field, the building swap of the waqf land and buildings are not carried out to unregistered or uncertified waqf land, namely those whose ownership rights are still under the name of the waqif or the descendants, including the waqf buildings such as mushala or madrasah (Islamic schools) that are built on it. This independent waqf relocation is relatively quick and easy. It is carried out under the personal name of the owner whose asset was given for waqf under the supervision of society as the waqf beneficiaries. Ironically, it is difficult to sell or to obtain compensation on the certified or registered waqf land in or outside of the MIA since March 22 nd , 2007. In reality, up to now, the waqf land and buildings located in the MIA have not yet been bought by PT Lapindo Brantas. This may be due to PD 14/2007 that does not clearly explain the obligation of the PT Lapindo Brantas to buy waqf land and buildings. Up to now, there has not been any clarity on the relocation process of waqf objects that are no longer functioning due to the mud disaster in the MIA through "Build swap" (ruilslag). Then, there are only 8 out of 50 certified waqf land and buildings outside of the MIA that has been granted compensation elsewhere by the Ministry of Religion through the build swap mechanism in September 2020. Since then, there has not been any certainty on the continuality of the building swap of the rest of the waqf objects.
The exchange of the 8 waqf land and buildings was carried out by the Sidoarjo 19  Affairs and Residential Houses. According to that Ministerial Decree, the main task and function of the Sidoarjo Mud Center of Control is to control the Sidoarjo mud, including controlling its social, economic, and environmental impacts. 20 This law does not clearly stipulate the Sidoarjo Mud Center of Control's authority to carry out build swap on waqf land and buildings impacted by the mud.
Some factors cause the difficulty in the build swap process of waqf land and buildings impacted by the Sidoarjo mud, including the regulatory issue of the Sidoarjo Mud Center of Control's authority to handle waqf issues. This agency does not have the authority to handle waqf issues, as its job and authorities are only directly related to controlling the mud, so as to not cause social, economic, and environmental impacts to the surrounding area. So far, this Center of Control only handles the waqf exchanging process because it follows up the process carried out by the Sidoarjo Mud Response Agency. 21 Article 15 clause (1)  Stipulations of Article 5 letter a of PD 21/2017 cause multiple interpretations. Does the term, "the people's land and/or buildings" also include waqf land and/or buildings? It is still vague. Also, stipulations of Article 5 letter b of PD 21/2017 do not state whether or not the "land and/or buildings" also include "waqf land and/or buildings". It only reconfirms that the land and/or buildings impacted by the Sidoarjo mud that is outside of the MIA that is purchased by the government using the state budget becomes "State-Owned Objects". Ideally, the legal status of the waqf land and/or buildings impacted by the mud both in and are outside of the MIA on March 22 nd , 2007 have the same legal status as the mud victims' personal-owned land and/or buildings, meaning that both have the same rights to obtain compensation, even though they have different forms and they have different people responsible.
In the aspect of legal liability, there is no difference between waqf land and buildings owned by legal entities and those owned by individuals. Ideally, if these waqf objects are damaged, broken, or unfunctional due to the mud disaster, they have the right to obtain compensation. PT Lapindo Brantas must purchase them if they are located in the MIA, meanwhile, the government must be responsible if they are located outside of the MIA. Even though according to the Shafii sect, waqf objects are regarded as cut from the waqif's ownership since it is pledged to be "owned by Allah", but the Hanafi and Maliki scholars regard the waqf objects as the ownership right of the waqif, whose usage is carried out by the nazhir for the public interest, either forever or for a certain period according to the waqf pledge. Anyhow, the waqf objects impacted by the mud originated from personal ownership that is used for public interest according to the waqf pledge.
In practice, the waqf land and buildings that are required for the development of public facilities, for instance, to build the Trans Java highway, 24 are relocated using the ruilslag method. Thus, there is no excuse for PT Lapindo Brantas and the government to not exchange the waqf land and buildings impacted by the Sidoarjo mud according to their portions of responsibilities as stated by PD 14/2007.
With the granting of the building swap (ruilslag) of 8 waqf locations outside of the MIA of March 22 nd , 2007, it means that the government has acknowledged the legal status of the waqf land and buildings impacted by the Sidoarjo mud to obtain compensation using the build swap mechanism is basically a result of an extensive interpretation on the mandate of these waqf locations. Even though, up to now, only 8 out of 50 waqf locations outside of the MIA have been carried out based on the exchange permit (ruilslag) of the waqf land and buildings from the Ministry of Religion, namely for (1)  Based on the description above, the relocation of waqf objects in the form of damaged or destroyed land and buildings affected by the Sidoarjo mud blowout that has been carried out by the government is only limited to waqf objects that are outside the Map of Impacted Area (MIA) which according to PD 14/2007 is the responsibility of the government. Meanwhile, waqf objects that are in the MIA, which according to PD 14/2007 is the responsibility of PT Lapindo Brantas, have never been carried out. The relocation of waqf objects carried out outside the MIA are carried out by the government with the aim of being in the public interest by way of exchanging buildings (ruilslag) with new waqf objects in other places as replacements (ibdal) in accordance with the provisions of Islamic law (Sharia) and the Law on Waqf.
Based on the description above the relocation model of waqf land and buildings impacted by the Sidoarjo mud both in and outside of the MIA stipulated in the Presiden-tial Decree revision is carried out using the following principles: 1. The waqf objects are principally owned by Allah/God (for eternal waqf) and personally-owned by the waqif (for waqf with certain periods) whose functions are for the good of the people according to the aim stated in the waqf pledge. Because of that, whoever carries out actions that cause the waqf objects to no longer function according to the waqf aim, they are legally responsible to replace it or paying for its compensation. 2. Referring to stipulations of Article 15 clause (1) of PD 14/2007, PT Lapindo Brantas is obliged to purchase the land and buildings of the mud disaster victims located in the MIA. Because of that, this company also has the responsibility to buy the waqf land and buildings there. The proceeds will be used to buy land and to build waqf facilities in other locations according to the Islamic sharia and the Law on Waqf.

RELOCATION MODEL OF WAQF LAND & BUILDING IMPACTED BY SIDOARJO MUD BLOWOUT
Ibdal (Waqf Objects Substitution)