al-Muwaththiq: A Concept of Islamic Notary 
as Registrar on Sharia Contract

Moh. Ihsan Fauzi
mohihsanfauzi@unida.gontor.ac.id
University of  Darussalam Gontor

Iza Hanifuddin
izahanifuddin@iainponorogo.ac.id
State Islamic Institute of Ponorogo

Abstract
Notary public officials are authorized to make authentic deed. The existence of this deed is very important for business activities including contracts in Sharia banking. The notary paradigm born from conventional concepts is certainly different from the concept of commitment in Sharia banking based on sharia principles, so that the problem arises how the competence that must be owned by a sharia notary and the validity of the contract made by non-Muslim notaries and notaries who do not have sharia competence. Al-Muwaththiq as a notary concept in Islam requires the registrar of contracts to have competence on two aspects, i.e. personality and expertise. On the other hand, Undang-Undang Nomor 2 tahun 2014 tentang Jabatan Notaris Perubahan also becomes a notary basis in every operation including contracts in Sharia banking. In order to answer the problem, this study uses the method of literature study by exploring literature relevant to the subject matter of the study. This study concluded that notaries who make authentic deed in Sharia banking must have sharia competence as excavated from the concept of al-Muwaththiq. Because of the contract made by notary public who do not have sharia competence, islamic law has an effect on its validity. Moreover, Notaries must also follow the positive rule of law that applies because Sharia banking as a sub-system of national banking is also subject to state-regulated regulations.

Notaris memiliki otoritas independen untuk membuat dokumen otentik. Kerja-kerja notaris sangat penting dan diperlukan untuk aktivitas bisnis, terutama kontrak syariah, semisal perbankan. Paradigma notaris yang ada masih sangat konvensional meskipun bekerja untuk bisnis syariah. Mestinya berdasarkan prinsip-prinsip syariah, notaris konvensional mesti mengetahui prinsip tersebut. Problem yang muncul ialah notaris seringkali tidak mengetahui prinsip-prinsip tersebut kecuali hanya menyangkut validitas kontrak yang sesungguhnya masih konvensioanl. Dalam Islam terdapat konsep al-Muwaththiq untuk menjelaskan notaris dalam Islam di mana kepribadian dan keahlian menjadi syarat utama pada seorang notaris ini. Di sisi lain, Undang-Undang Nomor 2 Tahun 2014 tentang Jabatan Notaris (Perubahan) dijelaskan bahwa notaris bekerja untuk semua kontrak, termasuk kontrak syariah. Oleh karena itu, untuk menjawab masalah ini, tulisan ini menggunakan pendekatan studi pustaka guna menggali akar notaris dalam konsep al-Muwaththiq ini. Kesimpulan mendapati bahwa dalam konsep al-Muwaththiq seorang notaris mesti memiliki kompentensi kesyariahan karena ketiadaan kompetensi syariah dan hukum Islam akan berimplikasi pada validitasnya. Selain itu, seorang notaris juga harus menguasai hukum positif karena kontrak syariah saat ini sudah menjadi bagian dari regulasi nasional hampir di negara-negara dunia.

Keywords: al-Muwaththiq, Islamic Notary, Sharia Banking

INTRODUCTION
Notary, based on Article 1 number 1 of the Undang-Undang Jabatan Notaris Perubahan (UUJNP) Number 2 of 2014 is a public official authorized to make authentic deed, i.e. a deed that has the power of perfect proof and can provide legal certainty. This act also has a big effect on sharia agreements in order to provide legal certainty on each transaction. As in sharia banking, such as murâbahah, mushârakah, mudârabah, ijârah, sharia guarantees and others. Notary that is developing today is a legal instrument on the basis of conventional paradigm, whose practice refers to the common law and civil law concept schools and different from the competence in the paradigm of Islamic law that becomes the principle of sharia contract transactions. Although there have been recommendations related to sharia certification for notaries, but it has not been followed by clear rules. So that in practice there are still notaries who inaugurate (authentication) sharia contracts without understanding and mastering sharia principles and the terms of sharia contract pillars, including in non-Muslim notaries and notaries who practice on ribawi contracts as well as sharia contracts.
Related to notary in islamic concept, Syamsuddin Muhammad al-Suyuthi in the book Jawâhir al-‘Uqûd wa Mu’aiyyin al-Qudâh wa al-Mawqi’în wa al-Shuhûd uses the term al-Muwaththiq to describe a person who records official documents in an agreement. Al-Muwaththiq must pray to Allah, writing in accordance with the provisions of God's law, provide advice (legal counseling) to the party who uses his services and avoid the use of vague and ambiguous words. Al-Muwaththiq prefers to have the ability in science and religion, integrity, knowing legal issues, based on virtue, moving rationally, knowing divisions in inheritance science, and mathematical calculations including arithmetic, rank numbers and square roots. Al-Muwaththiq must also guard his speech from lies, be just, avoid small or great sins, avoid association with vile people (unless forced) because his profession is honorable and noble, take care of private matters, king's secrets, the affairs of the people, and protect the souls and property of the people with words and deeds based on him.  
In relation to notary public who make authentic deed on sharia contract, al-Muwaththiq as a concept of notoriety in Islam, not only enough to have general knowledge, but also must have competence in the knowledge of Islamic law including principles, terms and pillars of commitment. Because he also serves as a legal counsellor for his clients. Similarly, with the status of faith, notaries must trust In Allah, which means that the notary who records the sharia contract must be Muslim because sharia contracts are products that use the principles of Islamic law and also regulate the affairs of Muslims. Including in the case of notaries moving above "two legs", namely in sharia contracts while carrying out usury-laden contract practices. This is not in accordance with the provisions of al-muwatsiq which prevents small or large sins, as a form of fairness that must be had. Affirmation related to notary with competence in the form of understanding and mastery of Sharia is an important thing, especially for Sharia banking as a bank that uses sharia principles.
Referring to the above problems, it is interesting to examine how the competence must be possessed by notaries who make authentic deed in Sharia banking. Similarly, the validity status of deed in Sharia banking made by non-Muslim notaries and notaries who do not have sharia competence. In order to examine the problem, this study uses literature review method, which is research with a focus on the study and analysis of primary materials from literature (books, reports of research results, reports of devotion results, manuscript records and so on). 

DISCUSSION
Concept of al-Muwaththiq
The rules related to the recording of the contract are contained in al-Baqarah verse 282 by mentioning the word al-Kâtib as the registrar of the contract. Kâtib or al-kâtibu means scribe, writer, author, also has a sense of security with al-sikrâtîr (secretary), al-nasâkh (copy) and al-muwaththiq (notulis). Based on some similarities from the word al-kâtibu, it seems that al-Muwaththiq has something to do with the concept referred to in al-Baqarah verse 282, namely as a registrar of contracts intended to have the power of proof. Al-Muwaththiq itself is an isim fâ'il from the word waththaqa-yuwatththiqu which means ahkâmahu (making it in accordance with the law), waththaqa al-aqdâ means sajjalahu bi al-tarîq al-rasmiyy (making it an official document). 
Al-Muwaththiq as the registrar of contracts has several explanations, namely as a registrar of marriage contracts, registrar of the trade agreement, will registrar, registrar in inheritance affairs, testimony recorder  and registrars of official documents that have the power of proof. The concept of al-Muwatsiq as the registrar of contracts or official documents is comprehensively explained in the book of Jawâhir al-‘Uqûd wa Mua'iyin al-Qudâh wa al-Muwaqqi'în wa al-Shuhûd by Muhammad bin Ahmad bin ‘Alî bin ‘Abd al-Khâliq Shamsuddîn al-Suyûtî, an Egyptian-born Shâfi‘iyah cleric in Jumâdil Akhîr year 813 H.
With regard to the recording of contracts in a wider scope, in fact as-Suyuthi mentions three parties that have a role. Namely al-Mushahid (witness), al-Muwatththiq (registrar) dan al-Muwaqqi‘ (signatories). More clearly, al-Mushâhid acted as a witness who witnessed the making of the contract, then al-Muwatththiq with his role as the author of the contract, as well as al-Muwaqqi‘ as a signatory who gave the legality of the contract. However, among the three parties, it is al-Muwatsiq who has the role of al-Katib as mentioned in al-Baqarah 282, which notes or writings can also occupy positions as well as testimony as well as fiqhiyyah rules, al-kitâb ka al-khitâb, which means writing occupies a position as a speech in testimony, or written evidence is the same as evidence of testimony.
Al-Muwatththiq as the registrar of the contract must meet the requirements in the form of consulting Allah, writing in accordance with the provisions of God's law, giving advice (legal counseling) to those who use his services and avoiding the use of words that are unclear and ambiguous. Al-Muwatththiq prefers to have the ability in science and religion, integrity, knowing legal issues, based on virtue, acting rationally, knowing divisions in inheritance science, and mathematical calculations including arithmetic, rank numbers and square roots. Al-Muwaththiq must also guard his speech from lies, be just, avoid small or great sins, avoid association with vile people (unless forced) because his profession is honorable and noble, take care of private matters, king's secrets, the affairs of the people, and protect the souls and property of the people with words and deeds based on him.
The provisions related to al-Muwatsiq as mentioned above boil down to two general competencies that must be possessed, namely competencies related to personality in the form of faith and aklak. As well as competent expertise in the form of knowledge insights in the field of law and other knowledge that supports its performance.

Notary Position as Registrar of Contracts in Sharia Banking
Notary as a profession can be traced its existence in ancient Rome with the term scribae, tabellius or notaries. The notary's main job is to record speeches that then develop to record and make deed that is not in the executive, legislative or judicial power. Notary institutions applicable in Indonesia is a concept that develops in the civil law system. Its characteristics are appointed by the ruler and aim to serve the interests of the general public and obtain honorarium from the general public. Regulation related to notary public is regulated in UUJNP which in Article 1 number 1 mentions the definition of notary public with the sentence: “Notary public official is authorized to make authentic deed and has other authority as referred to in this Law or other Law”.
Notary authority in making authentic deed makes it as a public official domiciled before the law by having the power of proof on the deed he made. Notary as a legal officer in the field of civil affairs has a very important position and role, namely representing the state carrying out the duties and functions of its position in making authentic deed as a strong evidence tool. In the operation of banking transactions, notary becomes an important element with its authority in the creation of credit/financing deed, debt recognition letter, grosse deed, legalization and waarmerking.  In addition, notaries can also act as legal advice concerning the widespread use of civil law thus the notary can provide legal counseling or legal opinion to his client which is then poured into the deed. 
Theoretically, an authentic deed made by a notary public is a letter or deed that from the beginning is deliberately and officially made as a means of proof. article 1 number 7 of the UUJNP stated that “Notarial deed hereinafter referred to as Akta is an authentic deed made by or before a notary public according to the form and procedure stipulated in this Law”. It shows that authentic deed has mechanisms stipulated in UUJNP and deed of authentic domicile when made by or before authorized officials. The reason for the completion of the authentic deed is because of two things, namely: first, because it is ordered by law and is in the public interest, secondly, it is necessary to be a means of proof on the events that have passed
The development of Sharia banking is also influenced by legal instruments in the field of notary, because every agreement must be recorded before a notary public in order to have legal force. Notary relationship with Sharia banking as a sub-system of national banking is actually affirmed by law No. 2 of 2008 on Sharia Banking which also uses notary legal services in every business activity, ssuch as fiduciary guarantees, dependent rights and others. This shows that authentic deed has a big effect on sharia business agreements and places notaries as an important element in providing legal certainty to transactions in Sharia banking.
Sharia banking in its operations must be based on law compliance and sharia compliance simultaneously which has implications on the competence that a notary must have as an authentic deed maker in Sharia banking. Notary public who become partners of Sharia banking instead of only mastering the positive legal aspects, generally must meet the requirements in the form of sharia certification, although it has no effect on the validity and strength of notarial deed, sharia certification is required to ensure that notaries who become sharia banking partners have sharia competencies. In other words, a notary who wants to make a deed of sharia contract must understand the ins and outs of sharia agreements. The existence of notaries who have sharia competence will guarantee the validity of sharia business in accordance with the principles of Sharia economic law, especially notaries are also responsible if there are errors and violations in the deed made.

Relevance of al-Muwaththiq to the Role of Notary Public as Registrar of Contracts in Sharia Banking
The recording of authentic deed in Sharia banking is a necessity to ensure legal certainty related to business activities carried out. This situation indicates that the official recording of the contract should be done as a form of anticipation of a dispute in the future. Related to this, al-Muwaththiq as a notary concept in Islam has an important role to record official contracts in order to become an agreement that has the power of proof. As it functions as a registrar of marriage contracts, registrar of the trade agreement, will registrar, registrar in inheritance affairs, testimony recorder and registrars of official documents that have the power of proof.
Sharia banking as a banking system based on sharia principles certainly requires a notary with sharia competence, namely the competence of notaries who understand and master sharia principles. This is in accordance with the competence that must be possessed by al-Muwatsiq in the form of laughter to Allah, writing in accordance with the provisions of God's law, giving advice (legal counseling) to those who use his services and avoiding the use of words that are unclear and ambiguous. He must also have skills in science and religion, integrity, know legal issues, be based on virtue, move rationally, know divisions in inheritance science, and mathematical calculations including arithmetic, rank numbers and square roots. In addition, al-Muwaththiq must also guard his speech from lies, be just, avoid sin small or large, avoid association with vile people (unless forced) because his profession is honorable and noble, take care of private matters, king's secrets, the affairs of the people, and protect the souls and property of people with words and deeds based on him.
Based on the requirements related to competencies that must be owned by al-Muwaththiq as the registrar of contracts, it can have implications for al-Muwaththiq to work well and professionally. In relation to the recording of contracts in Sharia banking, with the competence owned by al-Muwaththiq, he can also act as legal advice (extension or legal advisor) who give legal opinions which are then poured into the deed of. Thus, al-Muwatsiq as notary as a law enforcement officer in the field of notary, can ensure sharia compliance in business activities in Sharia banking.

CONCLUSION
Al-Muwaththiq as a notary concept in Islam meets the competency criteria that must be possessed by the registrar of contracts in Sharia banking. This is because the registrar of contracts in Sharia banking in addition to understanding positive laws must also master the principles of Islamic law. Because the role is not just to record the contract to be an official or authentic contract, but more than that, namely as legal advice and law enforcement in the field of notary that ensures sharia compliance in every business activity in Sharia banking.

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