THE IMPLEMENTATION OF THE REGULATION OF CASH WAQF MANAGEMENT IN HIGHER EDUCATIONAL INSTITUTION IN INDONESIA AND MALAYSIA (A STUDY OF LEGAL SYSTEM THEORY)

Purpose of the study: This article aims to elaborate on the practice of cash waqf management in a higher educational institution in Indonesia and Malaysia. In further explanation, it will elaborate on the effectiveness of regulation application on cash waqf management by applying Friedman's legal system theory. This paper also explores some obstacle factors towards the implementation of cash waqf regulation in higher education. Methodology: This study applies a qualitative approach by using two main data resources, primary and secondary data. The data collection method applied in this research is by conducting documentation and interviews with stakeholders of cash waqf managers in higher educations in Indonesia and Malaysia. The collected data were analyzed by the legal system theory. Main Findings: In the level of legal substance, both Indonesia and Malaysia have been sufficiently rigid and representative. The regulation of waqf in Malaysia gives discretion to waqf administrators to improve waqf management. Meanwhile in Indonesia, the implementation of the regulation on waqf management is still plagued by social norms and religious norms that are believed by communities. Applications of this study: The result of the study aims to contribute to cash waqf management and its development in Indonesia, particularly in higher education. The study is expected to be a platform and foundation in the implementation of cash waqf regulation and its management model. Furthermore, the results of this study are expected to be considered in strengthening the development of legitimacy and regulation in the education sector. Novelty/Originality of this study: This study focuses on the implementation of waqf regulations in the higher education institution in Malaysia and Indonesia based on the perspective of legal system theory. The implementation of the waqf regulation in both countries is analyzed by three aspects; substance aspects, structural aspects, and legal culture aspects.


INTRODUCTION
The role of waqf in Islamic education has been existing since the era of Abasyiyah and the Ottoman Imperium (Azra, 2004, pp. 55-67). Waqf is currently developed for social needs such as health, religion, education, and other purposes, (Sya'bani, 2016, p. 174) such as relief of poverty, public and religious constructions (Ghazaleh, 2011, p. 23). The use of waqf is optimized to support the education sector such as in some universities and non-formal education as in Pondok Pesantren (Islamic boarding school) (Fanani, 2011, p. 183). The waqf assets are also used for educational development starting from primary level to higher education level, for example as Institut Agama Islam Negeri (IAIN), Universitas Islam Negeri (UIN), Universitas Islam Indonesia (UII), Universitas Muslim Indonesia (UMI), Universitas Muhammadiyah Jakarta (UMJ), Universitas Islam Sumatera Utara (UISU) and many more (Tim Direktorat Wakaf-Dirjen Bimas Islam Kemenag RI, 2013, p. 86).
Today's waqf development can be said entering into the professional period, on which the empowerment of waqf assets is developed productively without decreasing its original values (Suryani & Isra, 2016, p. 23). The benefits of the waqf are also used for other needs that are relevant to the purpose of waqf (Qahaf, 2006, pp. 33-34). In general, Muslim countries have specific units in managing waqf property administration (Ab. Rahman, 2009, pp. 121-122). In Indonesia, waqf is managed by the government and other institutions particularly Indonesia Waqf Council or Badan Wakaf Indonesia (BWI) (Anonim, 2005). Meanwhile, in Malaysia, waqf is managed by Jabatan Wakaf, Zakat dan Haji (JAWHAR) (Hamid, 2016 In Malaysia, waqf administrator is under the authority of the Religious Council in each state that has a department and unit to manage the administration of waqf properties (Dahlan et al., 2014, p. 59). This policy aims to give independence to each state in improving waqf development. Concerning the regulation of cash waqf in Malaysia, because this study is located in Sembilan State and Selangor State, thus the regulation mentioned in this research is the regulations that apply in both States.
This study is a comparative study that is conducted both in Indonesia and Malaysia. This study aims to elaborate on the effectiveness of cash waqf regulation that is applied in higher education both in Indonesia and Malaysia by the approach of Lawrence M. Friedman's legal system theory.

LITERATURE REVIEW
Cash Waqf is popularized by MA Mannan (Maksum, t.t., pp. 6-7). Cash Waqf is one type of productive waqfs. Cash waqf provides an opportunity for people who want to contribute but have little capital.
Cash Waqf (Waqf al-Nuqud) is a waqf made by a person, group of people, institutions, or legal entities in the form of cash, including the securities. Cash waqf is jawaz (allowed). The principal value of the cash waqf and its sustainability must be guaranteed, may not be sold, granted, and / or bequeathed. ( The studies on the use of cash waqf for the development of higher educational institutions have been done a lot. Mu'alim examines the effect of waqf management on al-Azhar educational institutions on waqf management at the Universitas Islam Indonesia. This study found that normatively there were no rigid provisions regarding the management of waqf for educational institutions. This research implied that the management of waqf in educational institutions can be applied more flexibly, and placing the foreign educational institutions as a role model (Mu'allim, 2015). Unfortunately, the management of waqf in Indonesia is performed rigidly through various rules -law to the fatwa of the Indonesian Ulema Council (MUI).
Hasan found that the implementation of regulation implementation on cash waqf still is constrained by the social paradigm toward waqf, and understanding and interpretation of waqf regulations in Indonesia (Hasan, 2010). In Indonesia, the implementation of cash waqf regulation has different policies between an institution and other institutions. This problem occurred because of different understandings and interpretations of the existing rules. Besides, the practice of cash waqf management is also different from the concept of the constitution (Hilmi, 2012) as well as the implementation of waqf in higher education. For instance, cash waqf at Universitas Muslim Indonesia (UMI) the application has referred to Law Number 41 the Year 2004, however, the existing rules in the constitution have not been fully implemented (Mughnisani & Lutfi, 2013). This research will not investigate the problems of rules implementation on cash waqf management at UMI.
Othman et al did a scientific review on the development of higher education that used the fund of cash waqf. This study was done at Universiti Insaniah. The waqf implementation by any organization must obey the regulation of Religious Affairs. This covered the implementation of waqf in higher education in Malaysia that used waqf as alternative financing sources. The implementation of cash waqf that was used to fund Kolej Universiti INSANIAH (KUIN) will follow the same law process as waqf center council of higher educational institutions (Othman et al., 2017).
Masdar researched the implementation of cash waqf law in Indonesia by using legal system analysis. However, Masdar in his study did not only mention the constitution and other regulations but also mentioned the Standpoint of Majelis Ulama Indonesia and BWI's regulation as a legal substance of cash waqf. This research summed up that in the implementation of cash waqf regulation, both in the aspect of legal substance and legal structure had no problem. However, it also mentioned that the legal culture aspect became a barrier. Society's perception has not indicated positive thought towards cash waqf and institution of cash waqf administrators such as Badan Wakaf Indonesia. Some of them Law enforcement in cash waqf administrators is constrained by the legal culture that goes into an important component of law enforcement. The legal culture components in legal system theories are (1) structure, (2) substance, and (3) legal culture (Yunus, 2015, p. 40). Those three components in law enforcement are often used as a standard reference to measure law enforcement in a country.
The legal system in Friedman's theory at least contains three elements, they are the legal structure, legal substance, and legal culture. These structures become a fundamental element of the legal system. The substances (regulations) are other elements. The structure of the judicial system is interpreted as judges, court jurisdiction, on how the higher court is above the lower court and other kinds of court. Meanwhile, the substances are arranged from regulations and provisions on how institutions should act (Friedman, 2013, pp. 15-16).
The structures and substances are real components of the legal system, but all of them are just a blueprint or prototype, not a working machine. The legal system that is described as formal structure and substance is like a silent courtroom because of bewitched, frozen, and stopped under a magic spell towards an odd occasion. The thing that gives spirit, color, and reality in legal is external social, a culture of a community. Legal culture is the attitude element and social value. The term "social powers" is an abstract; however, those powers indirectly drive the legal system. People in a community have needs and demands; these all sometimes don't cover and reach the legal processdepends on the culture (Friedman, 2013, pp. 16-17).
"Law operates not only on the level of doctrine or legal officials, but also infuses culture and is fused to it, creating a culture of law" (Admiral, 2018, p. 233). A community lives in social behavior because culture covers a pack of values and attitudes that relate to law, which decide questions of what, why, and when community approaches legal system or government or avoid both of them (Yunus, 2015, p. 41). It needs to be emphasized that the law needs political authority as a condition for its enforcement; it also needs moral authority as a condition for its social recognition (Guibentif, 2007, p. 633).
A system is not isolated or alienated, it relies on external inputs. Without cases, there will be no court. Without problems and efforts to solve it, there will be no inmates. This social element melts down the rigidity of problems above, and drive the system (Friedman, 2013, p. 17).

METHODOLOGY
The method used in this research is a qualitative method by putting forward a deep understanding of the concept of cash waqf, cash waqf regulation in Malaysia and Indonesia, and its contribution to developing higher education. The main step of the study is to unify researchers' perceptions because this research involves three researchers. This aims to have the same direction which can result in research outcome as expected.
The data in this research generally consists of two data, primary data such as interview, and secondary data such as written data of the relevant document. The sources of primary data are informants of waqf fund administrators that use waqf to fund education in both Indonesia and Malaysia. Meanwhile, the sources of secondary data are documents and written references of journals, research results, books, magazines, electronic data sources, and other relevant sources that relate to cash waqf management used to develop the higher educational institution.
The data collection technique used in this research is by interviewing research participants in person that are located in Malaysia and Indonesia to dig knowledge and information in-depth as well as data needed. After collecting data, the researchers classify data based on each country by the aim to ease data analysis and result in good data analysis.
The method used in this research relates to two things; data collection method and data analysis method. The data collected in this research used two data collection methods.
First, it used a semi-structured interview. A semi-structured interview is a method of an interview that is done by the interviewer by asking a series of questions that have been structured and prepared, which then asked in-depth to gain further information (Arikunto, 1993, p. 197) and in-depth interview is a method used to gain accurate information the relates to the problem researched (Koentjaraningrat, 1991, pp. 138-140).
Second, it used documentation. Documentation is used to gain secondary data by collecting documents and literature that relate to this research, particularly on cash waqf management that used its fund to develop higher education.
Regarding data analysis, qualitative data in this research is analyzed by a descriptive-analysis method that is a method in researching a group of people, an object, a situation and condition, and a thought system. Descriptive research aims to describe a figure systematically, factually, and accurately regarding the facts and its relation to phenomena that are researched (Nazir, 1988, p. 10;Soekanto, 1986, p. 10).
Data analysis data is done by several steps as follows: The first is collecting data that is an activity to find and compile sources of information that are relevant to the research. The second is Interpreting data that is a step in arranging facts of the logical and harmonious framework, thus becoming complete data. The third is writing, that is a step when the interpretation result is written systematically, logically, harmoniously, consistently, either in terms of words or plot of discussion. Theoretically, data analysis is a process to arrange, categorize, and search the pattern or theme of data by understanding its meaning (Moleong, 1989, pp. 4-8).
In this qualitative research, three main components will be gone through by researchers, they are data reduction, data display, and conclusion drawing (Sutopo, 1988, p. 34). These three analysis components apply to ensure each other either before, during, and after collecting data in parallel. This analysis generally is mentioned as a flow model of analysis.
The data gained directly from the research object has been equipped with a theoretical study that is specialized only for the theory of cash waqf. In short, the method above will be explained through the following chart: Nevertheless, law enforcement is not only decided by its legal structure but also relates to legal culture in a community (Nuzul, 2017;Hoecke & Warrington, 1998). The legal culture that is meant here is the external legal culture that relates to values, perceptions, behavior, and habit of society towards cash waqf and its management.
The three elements mentioned by Friedman has not been implemented very well, especially in legal culture and legal structure. For example, the community is reluctant to pay cash waqf because the only thing they know is object waqf not cash waqf. The community does not get used to doing waqf with the publication, certification. Besides, they also don't want to pay waqf, zakat, or infaq through official procedures, moreover, they should be registered to LKSPWU.
In comparison to Malaysia, there are different terms, regulations, and legal systems (Islamic law) between Malaysia and Indonesia that bring a significant influence on the development of cash waqf. Malaysia uses the term 'wakaf tunai' to mention cash waqf or waqf in the form of money. The use of the term of cash waqf in waqf regulation implies psychologically to the community who want to do waqf. No matter what the purpose is, whether, for productive assets, investment, or in any form, the community can do waqf in cash. It is different from Indonesia in which the term of cash waqf applies if only used for investment or purchase of productive assets. If it is not productive, even though it is given in the form of cash, this will note mentioned as cash waqf but mentioned as waqf in the form of money.
Although each state in Malaysia has different regulations on waqf (Enactment), in general, the regulation gives freedom to those who want to do cash infaq.
The analysis of the legal structure on cash waqf looks different between Indonesia and Malaysia. In Malaysia, every state has Majelis Agama (Religious Council), this council sometime can be asked for giving the point of view about waqf, including cash waqf. The point of view made the Religious Council is binding as Enactment (Ansori, 2017;Mehmood et al., 2015).
The legal substance application both in Indonesia and Malaysia has been quite rigid and representative. However, waqf regulation in Indonesia applies in all regions in Indonesia, meanwhile, in Malaysia, the regulation is made by Majelis Agama in each state. Indonesia has the same Religious Council namely Majelis Ulama Indonesia (MUI) in each region, however, the point of view of MUI is not binding as the constitution or government regulation.
Waqf regulation in Indonesia is sufficiently rigid. Moreover, to regulate waqf, Minister of Religious Affairs made specific regulations regarding cash waqf administration as mentioned in the regulation of the Religious Affairs Minister. Meanwhile, in Malaysia, cash waqf is only regulated as part of State Enactment.
The existence of rigid waqf regulation in Indonesia aims to protect waqf assets and guarantees asset security. Moreover, cash waqf in Indonesia must be used for a productive thing, including investment, thus legal certainty should be protected by the constitution. In contract, this made cash waqf development obstructed, including cash waqf management in higher education.
In Malaysia, waqf regulation gives freedom to people to choose kinds of waqf, such as khas (specific) waqf, 'aam (general) waqf, cash waqf, tapak waqf, moreover, cash waqf is divided into several sectors; education, health, investment. Malaysia also offers several methods to pay waqf such as bank transfer, salary cut, and mobile application that is currently developed (Norzilan, 2018).
In the matter of legal culture, there is no significant difference between Indonesia and Malaysia, particularly waqf problem. This is because both countries are adequately similar. In terms of religion, worship, and mu'amalah, both countries are also the same as the Muslim majority in Malaysia follow madzhab of Syafi'i as in Indonesia. However, regarding waqf culture, Malaysia has a positive perception and supports its practice.
Legal substance about waqf in Malaysia implies legal culture in the community, including higher education. Even though the regulation is so rigid, but Malaysia gives discretion to waqf administrators to improve its management. This is also supported by adequate facilities to implement cash waqf, particularly for the development of education in higher institutions (Yaacob, 2013).
In higher education in Malaysia, either mutawalli or nazhir is ready to give adequate infrastructures to people who will do waqf. Various facilities for waqf fundraising or investment are provided by waqf administrators (Harun & Possumah, 2016).
Malaysian Government seriously supports waqf development program in every organization willing to be nazhir, mutawalli, or agent. Not only does the aid provide waqf regulation, but also provides waqf development infrastructure, fund, as well as human resources. Malaysian Government fully supports cash waqf management in higher education. This support made a synergistic relationship among three main elements of waqf regulation managers, based on Friedmann's theory mentioned above, a legal substance, legal structure, and legal culture. The support of government and the synergistic relationship of three elements on the implementation of cash waqf regulation in higher education can be seen in the following figure: Figure 2: The support of government and the synergistic relationship of three elements; legal substance, legal structure and legal culture

CONCLUSION
Waqf regulation in Indonesia has not been effective, moreover can be said as a barrier for waqf development. The regulation has not been understood by the community, including policymakers, and waqf administrators. Waqf regulation in the form of registration, certification, distribution of cash waqf has not been maximized in higher education.
Meanwhile, in Malaysia, cash waqf management and system in higher education is more advanced compared to Indonesia. Cash waqf regulation is made by the Religious Council in each state which further is decided as binding law or Enactment. This regulation made waqf administration easier in developing waqf management in higher education.
Indonesia and Malaysia have some differences in terms of 'cash waqf', either in its regulation and implementation. Cash waqf regulation in Indonesia must be in the form of money, but it also has the limitation that it must be used productively. Cash waqf also must be protected, not be a sale, not be granted, and not be bequeathed. Meanwhile in Malaysia, all waqf in the form of cash can be said as cash waqf, whether it is used for a productive thing or not. These different terms imply the implementation of waqf in both countries.
In the level of legal structure, Malaysia gives authorities to the community to manage cash waqf, Religious Council has full authority to make cash waqf regulation in legal substance, both in Indonesia and Malaysia is adequately rigid and representative. However, waqf regulation in Indonesia applies in all regions in Indonesia. Meanwhile in Malaysia, the regulation is made by Majelis Agama in each state. Indonesia has the same Religious Council namely Majelis Ulama Indonesia (MUI) in each region, however, the point of view of MUI is not binding as the constitution or government regulation. Legal substance about waqf in Malaysia implies legal culture in the community, including higher education. Even though the regulation is so rigid, Malaysia gives discretion to waqf administrators to improve its management in higher institutions. Meanwhile in Indonesia, cash waqf regulation is limited by sociological norms and religious norms believed by the community. The community also doesn't obey the regulation because they believe that this all is mentioned in the classical fiqh.

LIMITATION AND STUDY FORWARD
This study is limited to the implementation of cash waqf regulation management in higher education. It is needed to conduct further research to review cash waqf implementation in the wider institution.

ACKNOWLEDGMENT
The current research was funded under the center of Research and Community Services-Islamic State Institute Metro, Lampung Indonesia.