Kuasa Halalkan Produk Perbankan Islam
1 Votes
Central Bank of Malaysia Act 1958
Section 16B. (1) The Bank may establish a Syariah Advisory Council, which shall be the authority for the ascertainment of Islamic law for the purposes of Islamic
banking business, takaful business, Islamic financial business, Islamic
development financial business, or any other business which is based on
Syariah principles and is supervised and regulated by the Bank.
Section 16B. (9) Any ruling made by the Syariah Advisory Council pursuant to a reference made under paragraph (8)(b) shall, for the purposes of the proceedings in respect of which the reference was made—
(a) if the reference was made by a court, be taken into consideration by the court in arriving at its decision; and
(b) if the reference was made by an arbitrator, be binding on the arbitrator.
Kesemua produk Perbankan Islam dan produk berasaskan syariah yang lain adalah di bawah peguasaan dan nasihat mereka.
Central Bank of Malaysia Act 1958
Section 16B. (7) The Bank shall consult the Syariah Advisory Council on Syariah matters relating to Islamic banking and is supervised and regulated by the Bank, and may issue written directives in relation to those businesses in accordance with the advice of the Syariah Advisory Council.
business, takaful business, Islamic financial business, Islamic
development financial business, or any other business which is based on
Syariah principles
Kini siapakah ahli Syariah Advisory
Council? Adakah mereka-mereka ini ulama? Biarkan anda tentukan sendiri
siapakah mereka ini. Ahli-ahli Syariah Advisory Council ialah:
Yang Amat Arif Datuk Sheikh Ghazali Abdul Rahman – Chairman
Dr. Mohd Daud Bakar – Deputy Chairman
Datuk Haji Md. Hashim Haji Yahaya – Member
Sahibus Samahah Dato’ Hj Hassan Hj Ahmad - Member
Dato’ Dr. Abdul Halim Haji Ismail – Member
Yang Arif Dato’ Abdul Hamid Haji Mohamad – Member
Assoc. Prof. Dr. Abdul Halim Muhammad – Member
Dr. Mohd Parid Sheikh Ahmad – Member
Dr. Aznan Hasan – Member
Dr. Muhammad Syafii Antonio – Member
Assoc. Prof. Dr. Engku Rabiah Adawiah Engku Ali – Member
Prof. Datuk Dr. Abdul Monir Yaacob – Member
Dr. Mohd Ali Haji Baharum – Member
Associate Prof. Dr. Joni Tamkin Borhan – Member
The late Emeritus Prof. Tan Sri Datuk Ahmad Ibrahim – Member
Prof. Dato’ Dr. Haji Othman Haji Ishak – Member
Dato’ Dr. Haron Din – Member
Dr. Abdullah Haji Ibrahim – Member
Di bawah ini pula di antara resolusi dan asas membenarkan produk perbankan Islam untuk tatapan kita bersama.
Di antara persoalan yang timbul adakah
ini kaedah dibenarkan Islam untuk menghalalkan produk perbankan Islam?
Persoalan lain ialah kaedah menghalalkan produk perbankan Islam. Di
antara contohnya ialah menghalalkan Bai’ Inah (contohnya pinjaman
peribadi Bank Rakyat).
Majoriti ulama berpendapat jual al-Inah
adalah haram, dengan berdasarkan dari pegangan sahabat seperti Abdullah
bin Abbas dan Aisyah. Dari kalangan tabi’in pula ialah al-Hassan
al-Basri ibn Sirin, al-sya’bi, al-Nakha’i dan Rabi’ah bin Abd
al-Rahman. Dari kalangan imam-imam mujtahid pula ialah al-Thawri,
al-Awza’i, Abu Hanifah, Malik, Ishak bin Rahawaih, Ahmad bin Hanbal dan
lain-lain. Namun itu Syariah Advisory Council mempunyai pendapat yang
berbeza dan mengeluarkan resolusi seperti di bawah:
Resolution
The Council in the Regional Shariah Scholars Dialogue on 29th June 2006 / 3rd Jamadil Akhir 1427 resolved that:
i. The permissibility of bai` `inah and tawarruq is still a matter of juristic disagreement among the Shariah scholars backed by their own basis of justifications;
ii. The basis relied upon to justify the permissibility of tawarruq is similar with the basis to justify the permissibility of bai` `inah. Therefore, both concepts shall be ruled similarly;
iii. Bai` `inah contract is still necessary in the context of local Islamic finance development.
However, the market players are required to strengthen and enhance the
operational processes and documentation to comply with the features of
bai` `inah as permitted; and
iv. Since bai` `inah concept is still regarded as a matter of juristic disagreement among the Shariah scholars, it is more desirable that Islamic financial institutions to limit its use in products which face difficulty in structuring them based on other consensually accepted contracts.
Adakah ini boleh diterima? Di dalam
Jurnal The Application of Bay’ Al-’Inah and Bay’ Al-Dayn in Malaysian
Islamic Bonds: An Islamic Analysis; International Journal of Islamic
Financial Services Vol. 1 No.2: Penulis menerangkan seperti di bawah:
4.1.1 The Meaning of Bay’ al-‘Inah
Bay’ al-‘Inah is generally known as sale based on the transaction of Nasi’ah (delay).
The (prospective) debtor sells to the (prospective) creditor some
object for cash which is payable immediately; the debtor immediately
buys simultaneously the same object for a greater amount for a future
date. (13) Thus the transaction amounts to a loan.
The difference between the two prices represent the interest.
Such contract was evolved in the early period of Islam and it exists
for the fundamental reason that a loan for interest is forbidden
because it is equivalent to usury (riba). (14) In this contract, there
is an economic interest for both the borrower and the lender, which at
the same time circumvents the prohibition of usury.
The issue which concerns us here, is how
does Islamic law view such contract: whether the sales be allowed prima
facie, or disallowed because the motive behind the sales is to legalize
that which is illegal or usurious.
4.1.2 The Shafi’I View
According to Shafi’i school such sales are to be allowed because, in the words of Imam Shafi’I, contracts are valid (Sahih) by the external evidence that they were properly concluded: the unlawful intention (niyya or qasd) of the parties is immaterial, it does not invalidate their act, unless expressed in that act.(15)
Al-Shafici illustrated his teachings with following example which
concerns the marriage of a man who intends to keep his wife for only a
short period of time. That marriage is valid whereas a mutca (16)
marriage is invalid (Batil).
As the foregoing example illustrates, the
Shafi’s considered that the intention of the parties is taken into
account only when the invalid intention is explicitly mentioned in the
contract.
4.1.3 The Maliki and Hanbali Views (18)
The Maliki (19) and Hanbali jurists hold that the contract of ‘Inah are not valid (Sahih) because, according to them the motive of the parties to the contract determines the legality or illegality of the contracts, and in the sale
under consideration the motive of the parties is illegal and,
therefore, the sales are not valid because they constitutes a legal
device (Hilah) to get a loan with interest which should be averted at all costs according to the Sharicah. (20)
Ibn Qayyim, (21) a Hanbali author states that intention influences legal acts: the formality of legal act can be the same but end results depend on the intention.
Another Hanbali (22) author noted that
if the vendor of a quantity of juice of grapes knew, either directly or
owing to circumstantial evidence that the buyer intended to use the
juice in order to make wine, then the contract is void. According to
the Maliki Ibn Rushd, the marriage of a muhalil ( a man who marries a
woman divorced three times by her husband only with the intention to
divorce her afterwards and make lawful her remarriage to her previous
husband) is to be cancelled (Batil).(23)
Maliki (24) is also of the opinion to
cancel the sale of any article when the contracting parties intend to
make use of that article for an unlawful purpose, such as the sale of
arms to people already at war or to bandits. It is explicit in the
opinions of above noted jurists that the intentions are to be taken
into account in relation to legal acts as they are in the matters of
faith, Islam does not tell Muslims to define an objective, and then use
what means they observe fit in order to attain it. Instead, it tells
them that if the means are correct, the ends will look after
themselves. Islam does not teach us to overcome usury by competing with
usurer at his own game.
4.1.4 Conclusions Based on the Above Foregoing Discussions
From the foregoing discussion, we my draw the following conclusion:-
1 It is obvious
that Bay’ al-‘Inah is a legal device in order to overcome the
prohibition of riba, (no person would effect such sale if he cannot
realize profit), and is not deemed to be an act of sale, as there is clear evidence that such act amounts, in effect, to a contract of loan. Thus, it is forbidden as it is based on unjustified enrichment (fadl mal bil a ‘iwad) or “receiving a monetary advantage without giving a countervalue”.
2 The second point is that behind al-Shafi’i’s
recognition of the validity (sahih) of Bay’ al-‘Inah as his personal
opinion (Ra’y) and not based on interpretation of any authentic Islamic
authority. However, according to other schools the prohibition
of such sale was based on the consensus of the jurists (Ijma’
al’ulama’) on the authority of Islamic law sources. As Ibn Qayyim
prohibited Bay’ al-‘Inah quoting the following Hadith that Allah’s
messenger says: “A time is certainty coming to mankind when they legalise (Yastahillun) the Riba under the name of Bay’ “ (26) (trade concerning that intending usury by words of a sale).
Ibn Umar said: (27) I heard the Prophet of Allah (S.A.W) say “when
you enter into the ‘inah transaction, hold the tails of oxen, are
pleased with agriculture, and give up conducting jihad, Allah will make
disgrace prevail over you, and will not withdraw it until you return to
your original religion”.
Wasil b. ‘Ata (28) is reported to have said that a right judgment can be arrived at through four sources:
the express word of the Book, authentic Hadith, Qiyas and consensus of
the ulema community. Bay’ al-‘Inah, is a violation of the established
consensus. Since this sort of sale agreement constitutes the taking of
usurious interest as most jurists hold that such transaction should be
forbidden.
Furthermore, Ibn Taimiyyah divides sales into three groups according to the buyer’s intentions, namely:
i that he purchases the goods in order to use or consume them such as food, drink and the like, in which case this is sale, which God has permitted.
ii that he purchases the goods in order to trade with them; then this is trade, which God has
permitted
iii that the reason for purchasing the goods is neither the first nor the second, then the reason must be dirhams (money) which he needs,
and it was difficult for them to borrow, so he purchases the good on
credit (with an increased dirhams) in order to sell it and takes its
price. This, then, is ‘inah which is Haram according to the most eminent of the jurists.
The third point is that there
is hardly any satisfactory evidence which enables one to say that al
Shafi’i has expressly declared that al-’Inah to be (Halal). It should be pointed out that al Shafi’I’s method of determining the validity of any contract by its formal evidence
that they are legally concluded, cannot be cancelled on account of the
intention of the parties, although he had to recognize such intention
as forbidden (Haram) but the contract remains valid unless the intention expressed in the contract. As not every valid contract is a Halal contract, the
Shafi’i may, thus permits contracts because its legal preconditions are
fulfilled, but forbids the transacting act of the parties when it
conflicts with Shari’ah principle. The following example can
illustrate his teaching. Al Shafi’i (30) states that it is not
disallowed to sell a sword to a person who could use it to commit an
unjust killing, however, that sort of sale is valid (Sahih), for that
person might not use the sword for that purpose, but in the same time Shafi’i recognizes such transacting act as forbidden
(Haram) and the person is not allowed to take possession of the sword
(Tamlik), thus preventing the contract from producing its effects.
(31) Conclusively speaking, one can say that al Shafic’s teaching has
reached a level which is similar to the other Muslim schools although
the methodology which he adopted appears to be different. Al-Qaradawi (32)
states; in relation to this question of Bay’ al-‘Inah that it is a
clear case of usury and the device: why should we practice transaction
which contains elements of devices while we are in position to have a
clear and apparent alternative transaction? Furthermore, mu’amalat
which contains elements of device deviates form the true objective of
Shariah.
The use of legal device is therefore an evidence that the niyyah factor is undermined or made secondary in the securitization process.of Islamic bonds in Malaysia. It is apparently
clear that most underlying assets used in the Malaysian Islamic bond
securitization have no direct relation with the actual project itself.
These assets were simply collaterals, that serve as guarantees to the
debt issued. To retain the basic structure of traditional bonds
in Islamic finance, that is providing fixed return to investors,
practitioners and the relevant Shariah experts may have wrongly applied
Shariah laws, which implies now that the legitimacy of Islamic bonds
issued using bay’ al-’inah is suspect.
Bagaimanapun kita dapat lihat motif
dan perlaksaan produk perbankan Islam hari ini tidak berbeza dengan
kaedah digunakan Knights Templar.
“…The Knights’
involvement in banking grew over time into a new basis for money, as
Templars became increasingly involved in banking activities. One
indication of their powerful political connections is that the Templars’ involvement in usury did not lead to more controversy within the Order and the church at large. Officially the idea of lending money in return for interest was forbidden by the church, but the Order sidestepped this with clever loopholes, such as a stipulation that the Templars retained the rights to the production of mortgaged property. Or as one Templar researcher put it, “Since they weren’t allowed to charge interest, they charged rent instead“…” Sistem Perbankan
“..Banking as we know it today was an institution founded by the Knights Templar… In a world where the pope and the Catholic Church made the rules, usury, the charging of interest, was banned. For the Templars there were several ways to skirt the laws forbidding the charging of interest. One way was simply to charge a commission to procure the loan, but such a thinly disguised fee would still attract the condemnation of religious members. Another way was to call usury by a different name. The order was allowed to charge a “crusading interest” for loans. Its clients were often the same nobility that donated lands to the Temple, for which they received an income from the properties. Nobles, often the kings of England and France, needed to borrow money to fight wars and the Temple was willing to lend—for a fee. Where usury was a practice not allowed even for the Temple, the Temple would earn a profit by currency changing.
For instance, wool from France that was carried on Temple ships and
sold to a buyer in England was subject to a currency change that often
placed less value on the payment currency..”; Secret Societies of America’s Elite – From Knights Templar to Skull and Bones
Apakah operasi perbankan Islam hari
ini? Tiada bezanya dengan amalan Kinghts Templar. Mungkin atas sebab
ini berbaris bank bukan Islam kini menukarkan perniagaan mereka sebagai
bank Islam, keuntungan lebih lumayan melalui sistem Knights Templar.
Kini hinggakan terdapat bank OCBC Al-Amin, HSBC atau Hong Leong dan
pelbagai bank cina islam, bank hindu islam dan pelbagai lagi. Orang dan
bank kafir mengamalkan bank islam, dan orang Islam sendiri percaya
dengannya? Sungguh pelik dan dunia sudah terbalik. Inilah fitnah zaman
Dajjal.
Sila kemukakan pendapat anda mengenai
resolusi dan kaedah digunakan untuk menghalalkan/mengharamkan produk
perbankan Islam di bawah Syariah Advisory Council, iaitu badan yang
ditubuhkan Bank Negara Malaysia dengan kepentingan 90% pemilik saham
dirahsiakan.
Wassalam.
Rujukan Tambahan
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