Adakah anda mengetahui siapakah berkuasa menentukan undang-undang halal/haram produk Perbankan Islam dan berasaskan syariah yang lainnya? Adakah ianya berdasarkan fatwa? Adakah ianya Majlis Ulama? Kesemuanya tidak.
Kuasa membuat undang-undang ini terletak di bawah ‘Syariah Advisory Council’ dan dibentuk di bawah Bank Negara Malaysia. Badan ini tidak mengeluarkan fatwa, tetapi mengeluarkan resolusi. Syariah Advisory Council juga boleh membuat undang-undang bertentangan dengan fatwa atau pendapat majoriti, jika mereka mendapati terdapat keperluan perkembangan ekonomi mengikut sistem ekonomi kapitalis.
Bank kemudian boleh mengendalikan dan menentukan sendiri polisi dan undang-undang daripada resolusi ini. Bank berkuasa mengeluarkan arahan yang tidak bercanggah dengan resolusi ini. Oleh itu apakah peranan majlis agama atau ulama-ulama? Tiada apa-apa! Sekadar keluar fatwa kosong, dan sepertimana berlambak fatwa tetapi Perbankan Islam tidak goncang dan beroperasi seperti biasa (malahan bertambah pesat). Mari kita lihat kembali kuasa membuat undang-undang perbankan Islam di Malaysia:
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
Dato’ Dr. Abdul Halim Haji Ismail – 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:
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
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.
Affin Islamic Bank Berhad
Assoc. Professor Dr. Said Bouheraoua
Prof. Madya Dato’ Dr.Md Khalil Ruslan
Dr. Asyraf Wajdi Dato’ Dusuki
Al Rajhi Banking & Investment Corporation (M) Bhd
Burhanuddin Bin Lukman
Dr Azman Bin Mohd Noor
Dr Saleh Abdullah S.Allheidan
Prof Madya Dr Ashraf Md Hashim
Alliance Bank Malaysia Berhad
Assist. Prof. Dr. Wan Sabri Wan Yusof
Assoc. Prof. Dr. Abdul Rahman Awang
Prof. Dr. Zainal Azam Abd Rahman
AmIslamic Bank Berhad
Associate Professor Dr. Noor Naemah Binti Abd. Rahman
Dr. Amir Husin Bin Mohd Nor
Encik Adnan Bin Yusoff
Asian Finance Bank Berhad
Sheikh Dr.Waleed Bin Hadi
Sheikh Prof. Dr. Ali Muhyealdin Al-Quradaghi
Sheikh Dr Abd Sattar Abu Ghuddah
Bank Islam Malaysia Berhad
Dato’ Haji Daud Muhammad
Dr. Abdullah Haji Ibrahim
Dr. Ahmad Shahbari @ Sobri Salamon
Dr Asmak Abd Rahman
Dr. Yusof Ramli
Ustaz Mohd Bakir Haji Mansor (Chairman)
Bank Kerjasama Rakyat Malaysia Berhad
Dato’ Alim Panglima Hj Mat Jahya bin Hj Hussin
Dato’ Setia Hj Mohd Tamyes bin Abd Wahid
Datuk Abu Hassan bin Lebai Din
Dato’ Hj Kamaruddin bin Hj Zakaria
Prof. Madya Mohd Radzi Othman @ Abdul Rahman
Bank Muamalat Malaysia Berhad
Azizi Che Seman
Dato’ Hj. Md. Salleh Hj. Md @ Hj. Ahmad
Dr. Mohammad Sabri Haron
YM Engku Ahmad Fadzil Engku Ali
Bank Simpanan Nasional
Dr. Mohd Fuad Bin Md Sawari
Dr. Fauziah Binti Mohd Noor
En. Ramawan Bin Ab. Rahman
En. Zainudin Bin Ismail
CIMB Islamic Bank Berhad
Dr. Hj. Zainudin bin Hj Jaafar (Chairman)
Dr. Shafaai Musa
Hj Mohd Na’im Hj Mokhtar
Prof. Dr. Mohammad Hashim Kamali
Prof. Hafiz El Zaki
Sheikh Nizam Muhammad Seleh Yaqubi
EONCAP Islamic Bank Berhad
Dr. Akhtarzaite Bt Abdul Aziz
Dr. Samsuri Sharif
Prof. Dr. Sano Koutob Moustapha
Hong Leong Islamic Bank Berhad
Assoc. Prof. Dr. Ab. Mumin Ab. Ghani
Dr. Muhammad Humayon Abbas Dar
Dr. Uzaimah Ibrahim
Ustaz Muhamad Rahimi Osman
HSBC Amanah Malaysia Berhad
Associate Professor Younes Soualhi
Dr. Rusni binti Hassan
Khairul Anuar bin Ahmad
Kuwait Finance House (Malaysia) Berhad
Sheikh Adnan Ali Ibrahim Al-Mulla
Sheikh Dr Anwar Shuaib Abdulsalam
Sheikh Prof. Dr. Mohammad Abdul Razaq Al-Tabtabae
Maybank Islamic Berhad
Dato’ Seri (Dr) Hj Harussani Hjj Zakaria
Dr Ismail Bin Mohd@ Abu Hassan
Dr Mohammad Deenn Mohd Napiah
OCBC Al-Amin Bank Berhad
Assoc. Prof. Dr. Mahamad bin Arifin
Dato’ Mohd Mokhtar Shafii
Prof. Dr. Abdullah @ Alwi bin Haji Hassan
Public Islamic Bank Berhad
Assistant Prof Dr. Mohd Afandi bin Awang Hamat
Assoc. Prof Mohd Ridzuan bin Awang
Prof. Dato’ Dr. Mahmood Zuhdi bin Haji Ab Majid
RHB Islamic Bank Berhad
Asst. Prof. Dr. Abdulazeem Abozaid
Prof. Dr. Hj Abdul Samat Musa
Prof. Dr. Joni Tamkin Borhan
Dr Aznan Hasan
Standard Chartered Bank Malaysia Berhad
Dr. Hikmatullah Babu Sahib
Dr. Nurdianawati Irwani Abdullah
Dr. Shamsiah Mohamed
Bank Negara Malaysia
Dr. Mohd Daud Bakar – Chairman
Assoc. Prof. Dr. Abdul Halim Muhammad
Tan Sri Datuk Sheikh Ghazali Abdul Rahman
Tun Abdul Hamid Haji Mohamad
S.S. Dato’ Haji Hassan Haji Ahmad
Datuk Haji Md. Hashim Haji Yahaya
Dato’ Dr. Abdul Halim Ismail
Assoc. Prof. Dr. Engku Rabiah Adawiah Engku Ali
Dr. Mohd Parid Sheikh Ahmad
Dr. Aznan Hasan
Dr. Muhammad Syafii Antonio
Securities Commission Malaysia
Tan Sri Datuk Sheikh Ghazali Hj Abdul Rahman – Chairman
Datuk Hj. Md Hashim bin Hj. Yahaya
S.S. Dato’ Hassan Hj Ahmad
Dato’ Dr Abdul Halim Ismail
Prof. Datuk Dr Abdul Monir Yaacob
Dr Mohd Daud Bakar
Prof. Madya Dr. Abdul Halim Muhammad
Dr. Mohd Ali Hj. Baharum
Dato’ Abdul Hamid Haji Mohamad
Cecep Maskanul Hakim