Volume 18, Number 2, 2018

EDITOR-IN-CHIEF
Khamami Zada
EDITORS
Fathudin
Maman R Hakim
Windy Triana
Nur Hidayah
Ahmad Bahtiar
INTERNATIONAL EDITORIAL BOARD
Tim Lindsey (University of Melbourne Australia)
Nadirsyah Hosen (Monash University Australia)
Ahmad Hidayat Buang (Universiti Malaya Malaysia)
Raihanah Azahari (University Malay Malaysia)
Mark Elwen Cammack (Southwestern University)
Razeen Sappideen (University of Western Sydney)
Carolyn Sappideen (University of Western Sydney)
Nik Ahmad Kamal bin Nik Mahmod (International Islamic Universiti Malaysia)
Ahmad Tholabi Kharlie (UIN Syarif Hidayatullah Jakarta)
Muhammad Atho Mudzhar (UIN Syarif Hidayatullah Jakarta)
Masykuri Abdillah (UIN Syarif Hidayatullah Jakarta)
Muhammad Amin Suma (UIN Syarif Hidayatullah Jakarta)
M. Arsykal Salim GP (UIN Syarif Hidayatullah Jakarta)
Asep Saepudin Jahar (UIN Syarif Hidayatullah Jakarta)
ASSISTANT TO THE EDITORS
Kamal F. Musa
Erwin Hikmatiar
ENGLISH LANGUAGE ADVISOR
Bradley Holland
Umi Kulsum
ARABIC LANGUAGE ADVISOR
Amany Burhanudin Lubis

AHKAM has been accredited based on the determination of Director General of Research
Reinforcement and Development, Research, and Technology Ministry of Higher Education
of Republic of Indonesia, No. 36/a/E/KPT/2016 (valid until 2021).

AHKAM Jurnal Ilmu Syariah (ISSN: 1412-4734) is a periodical scientific journal
published by Faculty of Sharia and Law of Syarif Hidayatullah State Islamic University
Jakarta in collaboration with Indonesian Scientist and Sharia Scholar Association (HISSI).
This journal specifically examines the science of sharia and obtains to present various
results of current and eminence scientific research. The administrators receive articles as
contributions Sharia and Islamic law disciplines from scientists, scholars, professionals, and
researchers to be published and disseminated.

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Table of Contents

251

Arifuddin Muda Harahap
Rules on Wage Standard to Improve Workers’ Living
Needs in the Perspective of Maqasid Al-Shari’ah

265

M. Ikhsan Tanggok
Circumcision Law in Christianity and Islam

285

Abdul Rohman Zulfikar Alfarouq & Nurhasanah
The Positivisation of National Sharia Board Fatwa About
Mudaraba into Financial Service Authority Regulation

305

Muhamad Isna Wahyudi
Women Dealing With the Law in Religious Courts

321

Arif Hidayatullah & Anita Priantina
Toward Zakat Management Integration in Indonesia:
Problems and Solution

347

Muhammad Adil & Muhamad Harun
Fiqh Melayu Nusantara in the Palembang Darussalam
Sultanate Period

375

Sugiri Permana
Implications of Hazairin and Munawir Sjadzali Thoughts
in Establishment of Islamic Inheritance in Indonesia

395

Rifqi Qowiyul Iman
The Competence of Religious Court in Indonesia and
Syahadah Istifadhah (Testimonium De Auditu) in Case of
Itsbat Waqf

417

Mustapa Khamal Rokan & Kama Rusdiana
Configuration of Costomary Law Related to Economy
(Economic Adat Law Study in North Sumatera,
Indonesia)

433

Yayan Sopyan & Muhammad Shofwan Nidzami
Nyabek Toloh Marriage Proposal Tradition in Madurese
Culture: A Review of The Sociology of Islamic Law

453

Nuryani & M. Musyafa
Linguistic Review on Marriage Age Regulation

463

Wetria Fauzi
Regulation of Sharia Insurance After the Enactment of
Law No. 40 of 2014 Concerning Insurance

The competence of Religious Court
in Indonesia and Syahadah Istifadhah
(Testimonium De Auditu)
in Case of Itsbat Waqf
Rifqi Qowiyul Iman

Abstrak: Tulisan ini mengkaji tentang bagaimana sejatinya kompetensi
absolut Pengadilan Agama dan pengguanaan kesasian syahadah istifadhah
(testimonium de auditu) dalam hal perkara itsbat Waqf yang diajukan ke
Pengadilan Agama sebagai institusi peradilan yang berada di bawah naungan
Mahkamah Agung Republik Indonesia. Pada pembahasan ini dijelaskan
bagaimana sesungguhnya kompetensi Pengadilan Agama terutama dalam
perkara itsbat Waqf sebagaimana di atur dalam Undang-Undang No 3
Tahun 2006 Tentang Peradilan Agama digandengkan dengan UndangUndang Nomor 41 Tahun 2004 Tentang Waqf. Selain itu tulisan ini juga
mengkomparasikan konsep syahadah istifadhah dengan konsep testimonium
de auditu serta kekuatan hukumnya dalam hal pembuktian di Pengadilan
khususnya dalam perkara itsbat Waqf. Tulisan ini menyimpulkan bahwasanya
penetapan itsbat Waqf merupakan kewenangan absolut Pengadilan Agama.
Selain itu, berdasarkan fiqh syahadah istifadhah dapat digunakan sebagai alat
bukti dalam penetapan itsbat Waqf.
Kata kunci: itsbat waqf, pengadilan agama, syahadah istifadhah, testimonium
de auditu
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396 - Rifqi Qowiyul Iman

Abstract: This paper examines how exactly the absolute competence of the
Religious Courts and the application of syahadah istifadhah (testimonium de
auditu) in the case of waqf determination submitted to the Religious Court as
a judicial institution under the Supreme Court of the Republic of Indonesia.
In the discussion, it is explained how the competence of the Religious Court
especially in the case of waqf determination as arranged in Law No. 3 Year
2006 About Religious Courts combined with Law Number 41 Year 2004
About Waqf. In addition, this paper also compares between the concept of
syahadah istifadhah and testimonium de auditu also its legal force in the case
of verification at the court especially in the case of waqf determination. This
paper concludes that the assignment of Waqf is the absolute authority of the
Religious Courts. In addition, according to Islamic jursiprudence syahadah
istifadhah can be used as a means of proof in waqf determination.
Keywords: waqf, Religious Court, syahadah istifadhah, testimonium de
auditu

‫ تبحث هذه الورقة يف مدى كفاءة االختصاص املطلق للمحاكم الدينية وتطبيق‬:‫ملخص‬
‫"شهادة االستفادة" يف قضية الوقف املقدم إىل احملكمة الدينية كمؤسسة قضائية تابعة‬
‫ يشرح كيفية اختصاص احملكمة الدينية‬، ‫ يف املناقشة‬.‫للمحكمة العليا جلمهورية إندونيسيا‬
‫ حول احملاكم‬2006 ‫ لعام‬3 ‫خاصة يف حالة حتديد الوقف حسب الرتتيب يف القانون رقم‬
،‫ اضافة إىل ذلك‬.‫ حول الوقف‬2004 ‫ لعام‬41 ‫الدينية جنبا إىل جنب مع القانون رقم‬
‫يقارن هذا البحث أيضاً بني مفهوم شهادة االستفادة و "شهادة السماعية" وكذلك قوهتما‬
‫ ختلص هذا البحث إىل أن تعيني‬.‫قانونية يف التحقق عند احملكمة خاصة أو احملكمة الوقف‬
،‫ وفقاً للفقه اإلسالمي‬،‫ باإلضافة إىل ذلك‬.‫الوقف هو السلطة املطلقة للمحاكم الدينية‬
.‫ميكن استخدام شهادة االستفادة كوسيلة لإلثبات يف حتديد الوقف‬
‫ شهادة السماعية‬،‫ احملاكم الدينية شهادة االستفادة‬،‫ الوقف‬:‫الكلمات املفتاحية‬

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The Competence of Religious Court in Indonesia and Syahadah Istifadhah - 397

Introduction
In this modern era, waqf as one of Islamic philanthropy has started
to be regarded as a strategic means of national economic development.
In this case, waqf actually has a significant role after zakat especially
in terms of poor community empowerment. Moreover, among the
characteristics of waqf that the nominal amount of waqf must remain
was in contrast to others which were directly discharged after use.
The philosophy of waqf which maintain the asset which is different
form zakat, infaq and shadaqah considered as more superior. With the
persistence of waqf assets, the benefit for community will be achieved
countinously. From the aspect of eternity objects and values, waqf can
provide benefits to the widest public mob for the long term. Besides the
management of waqf may be distributed or used by rich people who are
not entitled to receive zakat (Kencana, 2017; p.5)
Various studies have been innumerable in order tu discuss the
potential of waqf in Indonesia. Based on data collected by Indonesian
Ministry of Religion per March 2016, the number of waqf land in
Indonesia reached 4.359.443.170 m² spread over 435.768 locations
in 33 provinces. That number increased by almost 100 per cent when
compared with the data of waqf land in 2007 which amount to
2.686.536.657 m² and spread over 366.595 locations (Badan Wakaf
Indonesia, 2018). This amount does not include cash waqf collected by
Zakat Institutions in Indonesia. According to Badan Waqf Indonesia,
asset of cash waqf has been collected in Indonesia reached 145.8 M per
December 2013. This number will continusly grow as the potential
of cash waqf in Indonesia amounted to 120 trillion per year (Noor,
Fathoni & Cholil, 2017; p. 13).
Both rapid development and increasing potential are not
happening without consequences. The greater potential for disputes
occur as the proliferation of waqf transactions occur. Proven in the
past five years, the case of disputes waqf into the Religious Courts
showed an increasing trend, although the amount is not as much as
heritage and divorce case.
Problems of waqf disputes in Religious Courts are rarely discussed,
one of them because only a little amount of disputes of waqf resolved
through litigation path. Although Article 62 of Law Number 41 Year
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2004 about waqf and its explanation states that the dispute of waqf
settlement through adjudicative path at Religious Courts / Mahkamah
Syar’iyah is the last step (not an option) after the mechanism of
consensus, mediation and arbitration failed. After all it is predicted
that future waqf disputes will increase and become more complex.
This plus the fact that 34 percent of the total waqf land in Indonesia
does not have a certificate. In fact, one of the most common causes of
disputes in waqf is about absence of a valid certificate on the donated
land (Direktorat Jendral Badan Peradilan Agama, 2017; p. 3).
In this current era, the legal acts of waqf must be evidenced by
the deed of waqf statement. The deed of waqf statemet in this case
serves as a proof of authenticity at the same time guarantees to prevent
misuse or pilferage rights. In fact, in some communities many waqf
practices in the past were found without any written evidence. Among
the causes is because waqf on past only based on feelings of sincere
struggle to raise religion Islam without requiring authentic written,
besides the cause of fiqh perspective, the past also did not oblige written
evidence in any waqf legal acts. Therefore, in these days there are many
application made in order to determine waqf throught Religious
Courts. Furthermore, the question arises of how exactly the Religious
Courts absolute competence in handling this case.
Other problems connected with proceedings of itsbat waqf is about
application of istifadhah witness (as-syahadah bi al-istifadhah) as the
basis of itsbat waqf acceptance. It is known that the waqf in the ancient
times only made orally also the witnesses as well as either perpetrator
or nazhir had passed away. Based on this, it is necessarly need to
understand depthly how the actual concept of syahadah istifadhah in
terms of determinating itsbat waqf in the Religious Court of Indonesia.
Absolute Competence of Religious Court in Indonesia
Competence means absolute authority of a court to judge based
on the material law (Mardani, 2009; p. 53). Absolute competence
or attributie van rechtsmacht (in Dutch) is the authority concerning
the division of powers between the judicial bodies (Sutiantio &
Oeripkartawinata, 2009; p. 11). In other words, the absolute
competence is the authority on the problem areas that have specifically
been regulated in the legislation to be the right of examining, decidinng
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and judging. Judging authority of these case areas is absolute, meaning
that what has been determined to be the power jurisdiction of courts,
become the absolute authority without being able to be intervened by
other jurisdictions (Harahap, 2005; p. 102).
Mukti Arto (2004; p. 6) said that there are two priciples to determine
the absolute competence of Religious Courts, these principles are as
follows:
1. If a case involves the legal status of a Muslim, and / or
2. A dispute arising from an act or event of law made or incurred
under Islamic law or closely related to the legal status as Muslims.
And in adjudicating cases that became their authority, the Religious
Court must adhere to the principles of Islamic personality (Mahfud
M.D, 1993; p. 40), as stated in Article 2 of Law No. 3 Year 2006 as
amending Law No. 7 Year 1989 on the Religious Court;
“Justice Religion is one of the institutions of judicial power for
Moslems people seeking justice regarding any particular case ruled by
this legislation “.

This means that the litigant parties should be equally Muslim or in
the event of legal relations, the two sides are both Muslim.
As a judicial institution based on Islamic law, the Religious Court
is called a special court. It is because the Religious Courts judge cases
that are determined exclusively by the legislation, which is specifically
authorized only to judge certain case matters or about specific group of
people. In this case, the Religious Court is only authorized in certain
areas of civil, not including the criminal field and also just for Moslems
in Indonesia, in cases of Islamic civil law (Djalil, 2006; p. 9). It is
because the majority of Indonesian people are Moslims.
Amendments of Law No. 7 Year 1989 by Law No. 3 Year 2006 and
Law No. 50 Year 2009, is essentially to adapt to Law No. 48 Year 2009
on Judicial Power and Law No. 3 Year 2009 on the second amendment
of Law No. 14 Year 1985 on the Supreme Court. The amendment
means also that the basis of overall policy has been laid and hence all
matters concerning the Religious Courts, whether related with the
technical judicial or non judicial such as organization, administration
and finance are under the authority of the Supreme Court. Besides,
changes in Law No. 7 of 1989, will further strengthen the position and
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existence of the Religious Court itself in the system of law in Indonesia
(Rahmi, 2013; p. 3).
One of the changes which is also considered as significant towards
Law No. 7 Year 1989 is the Article 49 concerns the absolute authority
of the Religious Courts. As stated in Law No. 3 of 2006 Article 49
explains that:
“The Religious Court duty and authority are to examine, decide and
resolve cases at the first level among people who are Muslims in the
areas of: (a) marriage; (b) heritage; (c) testament; (d) grants; (e) waqf;
(F) zakat; (G) infaq; (H) shadaqah; and (g) Shari’ah economy“.

In such changes expanded the authority of the Religious Courts.
These expansion would include zakat, infaq, and object of disputes over
property rights with the subject of legal between Moslems and also
Shari’ah economic.
Istbat Waqf, Syahadah Istifadhah and Absolute Competence of
Religious Court
Itsbat Waqf
Itsbat waqf consists of two Arabic syllables both are al-istbat and alwaqf. Al-istbat etymologically means assume that something is always
upright / fixed and correct (Ibn Manzhur, 1968; Vol. 2, p. 20). While
the terminology of al-itsbat as stated by Moslem scholar means filing
legal evidence (ad-dalil ash-shar’i) in the presence of the judges (qadhi)
on a truth or a particular event. While in the Big Indonesian Dictionary
the word “itsbat” is defined as the determination of the truth (validity)
of a case.
While al-waqf literally means “holding” (al-habsu), it can also
be interpreted as “prohibiting” (al-man’u). The word waqf in Arabic
language can also be interpreted as an object of waqf (Wizarat Al-Awqaf
wa As-Syu’un Ad-Diniyah, 1983; vol. II, p. 323)
While the term of waqf have varied definitions as will be explained
as the following:
1. The jurists of Hanafi stated that waqf is to resist the material
possessions on the legal basis of ownership of God and distribute
benefits to whom He wills. This definition is expressed by two
companions of Abu Hanifah.
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2. Abu Hanifa stated that waqf is to resist material on the legal
of waqif ownership of property and distribute although overall
benefits (means includes waqf for personal self, poor, or rich
people as stated in Rad al-Mukhtar) (Ibn Abidin, 2003; vol. 6, p.
519).
3. Ibn Arafah form Maliki jurist gives the definition of waqf by
classifying words as a verbal noun (al-mashdar) and noun (alism). Waqf as verbal noun means giving the benefit of an object
during the period its existence while maintaining ownership of
waqif even limited only by recognition. While waqf as noun (alisim) means an object which taken its usefulness as long as its
existence (Wizarat Al-Awqaf wa As-Syu’un Ad-Diniyah, 1983;
vol. 44, p. 108).
4. Syafi’iyah scholars stated that waqf is holding treasures that can
be used on things that are permissible, as well as the eternal of
its material by breaking the owner rights of management (AsSyarbini, 1997; Vol. 2, p. 205).
5. Jurists of Mazhab Hambali stated that waqf is to resist a property
that can be used while maintain eternity of the material and break
off management rights of the owner or other party and use it on
good things as a form of approach to Allah SWT (Al-Buhuti,
2000; Vol. 4, p. 329).
6. Pursuant to Article 215 paragraph (1) Compilation of Islamic
Law, waqf is a legal act of a person or group of persons or legal
entities that separates most of her possessions and instituted them
in perpetuity for the benefit of worship or other public needs in
accordance with Islamic thoughts.
Based on the exposure above it can be concluded that itsbat waqf
means to establish and strengthen the identity of the object that has
been endowed by waqif which previously has no signs of written
evidence such as deed of waqf statement or any other certificate.
Syahadah Istifadhah
Definition
Syahadah etymologically means a valid information (al-khabar alqathi ‘), recognition/testimony (al-iqrar). Epistimologically, the word
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“syahadah” has several different meanings:
1. Syahadah means recognition (al-iqrar)
In this case Islamic scholars define syahadah as a statement of a
truth upon yourself to another party.
2. Syahadah means testimony
In this case Moslem jurists define syahadah as a statement of a truth
upon the other parties to the other party before the Tribunal of
judges.
This discussion will be focused on the definition of the syahadah
as telling the truth over someone to the other before a Tribunal judge
(ikhbarun bi haqq al-lilghair ‘ ala ghair fi majlis al-qada).
While istifadhah comes from the word fadha which means
abundance. The word is commonly used to describe the abundant water
overflowed from it place of flow. The word istafadha also means intasyara
and dza’a (spread), in this case the author of Lisan Al-Arab (1968; Vol. 7,
p. 212) described it as the widespread talks (istafadha al-hadeeth).
Based on its etimology meaning, istifadhah can be expressed as the
state where the object of the testimony has been widespread among
audiences where each one of them listen to each other’s information.
Istifadhah usually occurs on a number of things which cannot be known
unless it is based on what is heard.
Levels of Syahadah Istifadhah
In terminology of Fiqh, syahadah istifadhah often referred by
using the term “as- syahadah bit tasamu” (the testimony of the mutual
listening). In this case, the Islamic scholars categorizes them into several
levels, such as the following:
1. Testimony with valid degree of truth and factual information,
this kind of witness also called as-syahadah bis-sima’ al-mutawatir
(testimony form sure hearing). As the examples are testimony to
the existence of a town called Makkah, Madinah, Cairo etc. In this
case the information is certainly undeniable even though it comes
from a man who has never seen the places directly. In this sort of
thing, the testimony must be accepted as well as having the same
position with the actual testimony.
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2. Testimony with the strong level of presupposition to approach the
truth. In such a case, the information (khabar) has been widespread
in the community amount to quite a lot. For example when the
new moon of Ramadan can be seen by many people and the news
about it have been widespread among the inhabitants of a country,
then it is mandatory for anyone wether who saw it or not to fast. In
such circumstances, the testimony before the judge is not needed
as well as no longer validation needed for the information.
3. Testimony with the strong level of prejudice but different from
prejudices mentioned above in terms of the appropriateness of the
source of information.
Requirements to Accept Syahadah Istifadhah
After having explained about definitions and levels of syahadah
istifadhah, hereafter fuqaha provides some requirements to accapte
syahdah istifadhah. In this paper, the author will be presented in
summary some of the terms considered important as follows:
1. The testimony should came from two righteous people (syahidain ‘
adlain) in the famous opinion. However it is argued the testimony
like this should come from four witnesses.
2. The testimony should be unquestioned. For example when there
are three teenagers aged eighteen give one testimony while in the
community there are hundreds of teenagers in their age but did
not know anything, then the testimony rejected instantly. But
when the doubts vanished, then such testimony is acceptable.
3. The news or information has spread widely and become many
people’s knowledge.
4. The people who will testify should take an oath first.
The Cases Where Syahadah Istifadhah Can be Considered Evidence
In fact, there is no difference of opinion among fuqaha about the
validity of syahadah istifadhah although in this case the witnesses not
witnessed what happened by their own eyes. Because the substance of
this kind of testimony is fame and dissemination, where this principle
is replacing personal witness over the things that happen.

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Fuqaha have different opinions about what kind of case that its
witness can be made with this method. Here are some opinions of
scholars about this problem:
1. Cross of opinion occurs between Maliki Scholars about cases that
can be solved using syahadah istifadhah. Al-Qaadi Abdul Wahhab
narrated that syahadah istifadhah applies only to cases that are not
changeable circumstances, or transfer of ownership in it such as the
determination of nasab, death, waqf, and marriage.
		 Meanwhile, Ibn Rusyd al-Jadd quoted four others opinions
on this. The first opinion, syahadah istifadhah can be received
in all types of court cases. The second, syahadah istifadhah is not
acceptable at all. The third syahadah istifadhah is accepted in all
things except determining nasab, qadha’, marriages, and deaths.
And the fourth, syahadah istifadhah is not acceptable except in the
four cases mentioned previously.
		 Next Ibn Syas, Ibn Hajib and the majority of fuqaha stated
that syahadah istifadhah is allowed in some cases that have been
restricted. Some jurists limit it to 20 (twenty) cases, others limit it
to 21 (twenty one) cases, others limit it to 32 (thirty two) cases and
among them who limit it to 49 (forty-nine) cases.
2. In the case of birth and nasab, Moslem scholars as quoted by Ibn alMundhir have consensused about the acceptance of determinating
both of them through syahadah istifadhah.
3. The Hanbilah and some of fuqaha among Syafi’iyah stated
allowance of itsbat through syahadah istifadhah on nine cases
namely; marriages, absolute ownership, waqf and its distribution,
death, asserting independence of slaves, relationship arrised caused
by liberating the slave, guardanship and the release of position (Ibn
Quddamah, 1983; Vol. 12, p. 23).
4. Some other fuqaha Syafi’iyah stated that testimony with istifadhah
can not be used in the case of waqf, the relationship because the
liberation of a slave, slave asserting independence, and husband
and wife bond (Ibn Quddamah, 1983; Vol. 12, p. 23).
5. About this issue Abu Hanifa stated that testimony with istifadhah
is not acceptable except in the case of marriage, death and nasab
(Al-Kasani, 1986; Vol. 6, p. 267).
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Between Testimonium De Auditu dan Syahadah Istifadhah
Etimologically, the testimonium means witness. Campbell (1968;
p. 1646) in his 1899 dictionary defines testimony as:
“Evidence given by a competent witness, under light or affirmation” or
evidence given by a competent witness under oath or affirmation”

Furthermore, Campbell defines de audity as
“Evidence not proceeding from the personal knowledge of the withness,
but from the mere repetition of what he has heard others say”.

It means that the testimony of de auditu is not obtained testimony
through knowledge, observation, and experience by the witness him
self, but from what he had heard from others. Sudikno Mertokusumo
(2009; p. 172) stated that the testimonium de auditu is witnesses
obtained from third parties. For the example a third party knows
firsthand that both parties then in the subject matter of case called
plaintiff and defendant have ever made a debt agreement. The third
party then tells his knowledge to the witness, then the witnesses testified
that he heard from a third party and give information acquired from
him before the judges. While Yahya Harahap (2005; p. 661) define
testimony as witness or information based of hearing from other, also
named as indirect testimony or not eyewitness experience. Related to
this, Subekti (1999; p.42) narrated it with “the testimony from hearing”.
While Mukti Arto (1996; p. 164) define testimonium de auditu as
witness not obtained directly by seeing, hearing and experiencing alone
but rather through other people.
There is a cross of opinions among the experts of civil law about
the power law of testimonium de auditu. The first opinion states
that the testimonium de auditu is rejected as evidence. To reject or
receive testimony de auditu as evidence is the General rules which still
practised untill these days by law practitioners. This is effected by the
rules which state that a witness who is not basing his statement from
a source of knowledge as mentioned in articel 171 paragraph (1) of
HIR and article 1907 paragraph (1) of KUH Perdata is not acceptable
as the tool of evidence. In article 171 HIR mentioned that: “(1) Each
witness must be accompanied by reasons of the knowledge of the witnesses,
(2) Opinions or special persumptions that occurs as a result of thought
are not categorized as the witness”. In this case, Subekti (1999; p. 42)
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added that testimonium de auditu as information which is based on
the views of others has no cost at all. Sudikno Mertokusumo (2009)
gives similar opinion that in general, the testimony of de auditu is not
allowed because the statement does not relate to events experienced
directly. Thus, the witness de auditu is not constitute evidence then no
need to be considered.
Second Opinion stated that the testimony of de auditu can be used
as evidence by the various diverse application, including the following:
1. Testimonials de auditu accepted as evidence that stand-alone
reached the minimum threshold of proof without the need for
other evidence if the witness de auditu consists of several people.
Witnesses who had qualified the formal and material requirements
means that he has the power of free evidentiary value (Vrijbewijs
Kracht). In other words, the judge has the freedom to assess the
testimony in accordance with his conscience, the judge is not
bound by the statements of the witnesses because the judge can
only get rid of the witness testimony as long as he considers it
sufficiently based on strong arguments or even judges may also
receive information though a witness qualified testimonials de
auditu as long as there is an exceptional basis to accept it. When
the burden of proof by witnesses should be presented as the main
witness in the case does not exist, then testimonials de auditu can
be accepted as evidence that stand-alone reached the minimum
limit of evidence if de audotu witness is consist of a few people
or many. It is contained in the decision of the Supreme Court
239 K/Sip/1973 dated November 25, 1975. In its decision, the
Supreme Court confirmed the de auditu testimonials can be used
as evidence which fulfill the material requirement.
		 The testimony of witness in general is according to the message,
but must be considered and almost all of the events or legal actions
that occurred in the past has no letter, but based on hereditary
message, while witnesses who directly face legal actions in the past
no longer exists living now, and thus hereditary messages that can
be expected as information and knowledge, and according to the
judges themselves such a messages by a particular community
considered valid and correct in general. However it should be noted
from whom the message was received, also the person who gives
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information should be those who receive messages directly. It turns
out that the problem was solved where the person who explained
the message in the court was the person who immediately received
the message.
		 There are several factors that become the basis to justify
testimony de auditu as evidence, those are: first, the witnesses who
directly involved in the events or legal actions tried have been died.
Second, the events or legal actions can not be written in the form
of a letter or other evidence that can be read and re-opened, as
well as records, documents and so forth. Third, the information
given by testimony de auditu was a message from the subjet or the
person who is seen in events or disputed legal act and raised again
before the tribunal as what he listens to (Asnawi, 2013; p. 155).
In the matter of testimony de auditu, the underlying problems
are not only about to accept the testimony as the evidence. But
there is something more fundamental, which is how far the value
of strength of evidence attached to it. It means that it is not so
essential to polemize whether the testimonials de auditu can be
admitted as evidence, therefore, it is no lonnger the time to reject
automatically and say that it is not valid as evidence. Supposedly, it
has to be received firstly and then consider is there any exceptional
basis to accept it. If there were any, then consider the extent of the
value of strength of testimony attached to the witness of testimony
de auditu
2. Testimony de auditu is not used as a direct evidence but the
testimony of de auditu constructed as evidence of conjecture
(vermoeden) with objective and rational considerations and that
prejudices can be used as a basis to prove something. Constructed as
a presupposition here means that kind of witness does not disregard
the overall of general rules that prohibits to receiv testimony de
auditu testimony as the evidence. Which is preferred is the judges
analyze the testimony de auditu then constructs the testimony as
the allegation of evidence, and conducted on the basis of objective
and rational (Asmuni, n.d; p. 196). As can be seen in the decision
of the Supreme Court 308 K/ Pdt/1959 of November 11, 1959.
Indeed, the decision still adheres the general rule prohibiting de
auditu testimony as evidence, but to avoid the ban, the testimony
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was not considered as evidence of witnesses but constructed into
evidence of conjecture (vermoeden).
		 In the decision of the Supreme Court dated 11 November
2011, No. 308 K/Sip/1959 states that “testimoniy de auditu”
can not be used as direct evidence, but the use of testimony as a
presupposition then use it to prove something, is not prohibited
(Asmuni, n.d; p. 196). In the decision, it is very firmly stated that
testimony de auditu cannot be used as a means of direct evidence,
but his testimony can be applied as evidence of conjecture
(vermoeden), and the conjecture can be used as the foundation to
prove something.
		 This may be a question mark, but such a legal action is justified.
Based on Article 1922 of KUH Perdata, Article 173 HIR, where
the judge is given the authority to consider whether things can
be realized as a means of allegation proof, as long as it is done
carefully and thoroughly. In the application of de auditu testimony
as allegation, the judge must be careful and precise. In this regard,
it should be guided by the provisions mentioned in article 173
HIR which states:
“Mere presuppositions which are not based on specific legislation,
should only be considered by the judge in making his decission if the
allegation were accurate, specific, and each other has the conformity”.

Presupposition evidence was regulated in article 173 HIR, and
consists of only one chapter. So it can be said that it is brief, and
does not cover all the essence things of the application of that
evidence. Yahya Harahap (2005; p. 684) deciphers the meaning
and process of conjecture as follows; First, the allegation that starts
on the known facts, then the conclusion drawn towards matter with
a concrete certainty which is previously unknown facts. Secondly,
from the fact, then the conlusion is taken which is approaching
certainty about the evidence of other facts previously unknown.
Presupposition in article 1915 of KUH Perdata is divided into two
types namely the allegation by the law or legislation (presumption
of law, rechts vermoeden) and presumption of judges (presumption
of fact, feitelijke vermoeden) (Asnawi, 2013; p. 68). The judge
presupposition is conjecture based on the reality or facts derived
from the facts proven at the trial. This is done by the judges as
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the law itself authorizes the judge in the form of freedom to
compile assumptions (Harahap, 2005; p. 696). The strength of
the evidence by the judge presupposition is free (vrij bewijskracht),
means the judge freedom of how to conclude the allegation. But
it will be strong and perfect proof and binding force if there is
no other evidence that beat proof allegation made by the judge.
Regarding this, the testimony de auditu is included indirectly into
the means of allegation evidence which is not based on legislation
(Harahap, 2005; p. 665). This because the role of judges is more
dominant in reviewing of what has been described by a witness
in order to complete the de auditu evidence in court cases. As for
the strength of the evidence the judge’s allegation is essentially free
(vrij bewijskracht). If the presupposition of judge is unopposed
or not overpowered by other evidence, the strength of the proof
becomes perfect and binding.
3. Indeed, the witness should be more than one person with the
minimum limit is two witnesses, when the limit cannot be fulfilled,
it must be equipped. Unus testis nullus testis (one witness is no
witness) can be encountered in the procedural law of both general
and Religious Court. In this case, testimony de audito can be used as
evidence to fulfill the minimum limit of unus testis nullus testis given
by the witness. Thus the decision of the Supreme Court 818 K/Sip/
1983 dated August 13, 1984. The decision stated that testimony de
audito as useful information to strengthen the testimony of usual
witness. In this case, the witnesses which were directly involved
in the buying and selling only the first witness, while the second
and third witness only qualified as de audito, but even so it turned
out in the trial that information they convey was a result of direct
knowledge derived from the defendant himself. Based on these
facts, the Supreme Court argued that their testimony can be used as
evidence corroborating the testimony of a witness.
Based on the explanation of the testimony de auditu, the authors
find some points of similarities and differences between the concept of
syahadah istifadhah in Islamic literatures and testimony de auditu as
follows:
1. Wether syahadah istifadhah and testimony de auditu is a form of
testimony obtained not from direct knowledge, observation, and
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the vision or the experience, but rather from what have been heard
from others.
2. In the discourse of procedural law, syahadah istifadhah and
testimony de auditu does not have any force of law unless it was
based on several exceptions.
3. In a situation where the information about a certain matter has
been widespread, syahadah istifadhah in fiqh discourse can be
categorized as independent evidence. Likewise, any testimony
de auditu can be used as evidence when the burden of proof by
witnesses should be presented while the main witness in the case
cannot be found and the information which has been spread
in the community customarily considered as valid and correct
information.
4. In the case of syahadah istifadhah, although there is a disagreement
among Moslem intellectuals has set some of the civil cases where
such evidence can be used while testimony de auditu has no any
cases restrictions.
5. In some cases, shahadah istifadhah as it is called istifadhah which
means widespread requires knowledge of many parties would get
the case in order to be categorized as syahadah istifadhah (Wizarat
Al-Awqaf wa As-Syu’un Ad-Diniyah, 1968; Vol. 26, p. 233). It
is different from the concept of testimony de auditu that simply
requires not gotten information directly in order to be categorized
as a testimony de auditu as the antithesis of auditu testimony.
According to the author, this is what led to the pros and cons of
testimonials de auditu status as evidence.
Absolute competence of The Religious Court and Syahadah
Istifadhah in Case of Itsbat Waqf
Absolut competence of Religious Court in Case Itsbat Waqf
These days, the case of itsbat waqf began to be submitted to the
Religious Court. This starts from the provisions of the law, especially
article 17 of Law No. 41 Year 2004 which states that every legal act
of waqf must be recorded and set forth in the deed of waqf statement
by Pejabat Pembuat Akta Ikrar Waqf (PPAIW). In this case the deed
of waqf statement considered as proof of authenticity as well as the
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guarantee in order to avoid fraud or encroachment without rights.
Though the facts and reality of waqf in public in the past do not or do
not have written proof. Among the causes is because waqf act in the past
done only as the manifestation of the religious motivation to get closer
to Allah with sincerity and generosity while the written evidence was
ignored. Besides viewed from the perspective of Islamic jurisprudence,
the past also did not require written evidence in any legal actions of
waqff. It is then pushed many application to determinine waqf at some
of the Religious Courts these days.
After many of itsbat waqf case submitted into the Religious Courts,
the question arises related to the absolute competence of Religious
Courts in handling such a case. It is because the provisions of Article
49 letter (e) of Law No. 3 Year 2006 arranged that Religious Court has
a duty and authority to examine, decide and resolve cases at the first
level among people who are Muslims in the areas of: (e) waqf.
In fact, Article 49 of Law No. 7 Year 1989 About the Religious
Court and Article 49 of Law No. 3 Year 2006 on changes to Law No.
7 Year 1989 on the Religious Courts as the basis for determining the
absolute competence of Religious Court did not explicitly explain the
limitations of Religious Court authority to judge the case of waqf is it
confined only to the format of a lawsuit (contentiuse) or also include
application case of waqf ratification (volunteer).
The authority of the Religious Court in deciding the case of itsbat
waqf all this time is only based on the result of decision of a National
Working Meeting of MARI year 2007 in Makassar which among the
formulations was deciding that the Religious Court is authorized to
receive, examine, and decide upon confirmation of waqf with no deed
of waqf statement, so the confirmation of itsbat waqf can be considered
as basis for making the waqf land certificate.
The provisions of the procedural law court petition (voluntair)
only under the authority of the Religious Courts when set explicitly
in the legislation. While the case of itsbat waqf does not yet have any
clear and certain legal basis unless the form of interpretation and the
formulation of the National Workshop in Makassar year 2007 (Fanani,
Fauzi, & Abdurrahim, 2017; p. 15).
Those problems of course quite a dilemma, on the one hand the
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potential for Indonesian waqf is quite large. Other side, a legal vacuum
occures in terms of authority of Religious Courts in dealing with itsbat
waqf application. Therefore, it is necessary to study the solution of this
problem, especially in order to optimize the role of waqf for national
development. Here are some solutions for the problems found by
author towards the problem of absolute authority of Islamic Court in
terms of waqf determination (volunteer):
1. Related to Article 49 of Law No. 7 Year 1989 About the Religious
Court and Article 49 of Law No. 3 Year 2006 on the change of
Law No. 7 Year 1989 concerning the Religious Courts, as the basis
for determining the absolute competence of courts that do not
explicitly describes limitation of its jurisdiction is it confined only
to the format of a lawsuit (contentiuse) or also include application
case of waqf ratification (volunteer). In the event of a legal vacuum in
this case, it can be overcome with the legal construction by analogizing
(qiyas) itsbat waqf with itsbat nikah (marriage determining) as
stipulated in Article 7 paragraph (2) Kompilasi Hukum Indonesia;
“In the case of marriage can not be proved with a marriage certificate,
it can be submitted to the Religious Court in order to confirm its
legitimation”

In Islamic jurisprudence it is supported by a legal basis that the
determination of wedlock (al-’alaqah az-zaujiyah) as same as waqf
is a kind of civil cases that its validity can be proven by the istifadhah
testimony as stated by some Malikiyah, Hanabilah jurists and
friends As- Shafi’I (Wizarat Al-Awqaf wa As-Syu’un Ad-Diniyah,
1968; Vol. 26, p. 233).
2. By referring article 49 Law No. 7 Year 1989 about the Religious
Courts and article 49 of Law No. 3 year 2006 regarding changes to
the Act No. 7 Year 1989 About the Religious Courts with article
58 paragraph (1) letter (c) of regulation Government No. 42 Year
2006 on the implementation of Law No. 41 Year 2004 About Waqf
which requires the existence of “determination” from the Court
to register waqf objects that have not been registered according
to the legislation. This is as stipulated in determinatin No. 281/
Pdt.P/PA/2011/PA.Clg that use that kind of law interpretation as
consideration of the absolute authority of Religious Court about
this matter.
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Syahadah Istifadhah in Case of Itsbat Waqf
In handling these cases of itsbat waqf, obstacles often faced is
related to the absence of witnesses who know directly legal acts of waqf
that occurred in the past, because there are witnesses who have died.
In this case, the available evidence is usually only witnesses who know
that act of waqf indirectly based on information from others that have
circulated widely in the community. Such testimony can be categorized
as syahadah istifadhah (Asmuni, n.d; V. 3, No. 2, p. 198)
Syahadah istifadhah which is in some literature of Islamic
jurisprudence referred by several terms such as syahadah bi at-tasamu’
(testimony through mutual heard) or shahadah bi al-istifadhah
(testimony with information which has been widespread) or alistifadhah min khalqin Ghafir (spread massively in widely) have the
power as evidence. Muslim intellectuals have agreed on this point
despite disagreement on which civil cases to use syahadah istifadhah
(Wizarat Al-Awqaf wa As-Syu’un Ad-Diniyah, 1968; Vol. 26, p. 233). It
is of course different from the concept of de auditu testimonials that do
not require massive dissemination of information among the people. In
addition, in order to be classed as a testimonials de auditu it is enough to
hear information from others (including litigants) so that the statement
is not based on the visions or her own experience. According to the
author of such testimony is not the same as the principle of wide-spread
information is the essencial key of syahadah istifahdhah to be accapted.
In any condition, testimony de auditu can meet the criteria of syahadah
istifadhah when the principle of wide-spread information was fulfilled.
Otherwise, testimonium de auditu which cannot meet those criterias
is more likely to be categorized as-syahadah bit-tasamu’ (witness by
hearing from others) which is more general than syahadah istifadhah
(Wizarat Al-Awqaf wa As-Syu’un Ad-Diniyah, 1968; Vol. 26, p. 233).
In case of itsbat waqf, some jurist of Malikiyah such as Qadi Abdul
Wahab, the ‘alim of Hanbali, and some of Shafi’iyah scholars stated that
syahadah istifadah is an evidence that can be used as long as the specified
requirements have been fulfilled. (Wizarat Al-Awqaf wa As-Syu’un
Ad-Diniyah, 1968; Vol. 26, p. 233). Therefore, the establishment of
itsbat waqf request with syahadah istifadhah as the evidence is the right
decision.

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Conclusion
Optmalisation of waqf in order to support national development is
a necessity. In this case the Religious Court as an authorized institution
in judging cases related to waqf has such a quite crucial role. In addition
to present legal certainty, a Religious Court judges are also required to
product the decission that also strengthens the role of waqf such as the
determination of itsbat waqf with regard to the existing data and the
law fact.
Determination of itsbat waqf with istifadhah testimony is such
a quite impressive breakthrough. This suggests that the various legal
determination methodology used by classic Islamic scholar in the
past are still relevant today. In this case, the authors concluded that
the sacrality of fiqh (Islamic jurisprudence) products should always be
maintained, but the task of the judge is not fixated on the jurisprudence
products. Judges are required to explore the methodology, the study
scope of Islamic scholar, in order to achieve maslahah as the objectives
of the law. Wallahu a’lamu bisshawab.[]
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Rifqi Qowiyul Iman, Religious Court of Ciamis, West Java. Email: rifqi1914@gmail.com
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