By: H. Ismul Azhari, Lc, S.Kom
4.1. Commodity Murabahah Product In Perpektif legal economy islam
Based on the description in previous chapters, so in this chapter will be presented and discussion of the results of the analysis on the CMP and the things associated with it.
4.1.1. In the akad Used CMP.
In CMP there are some combinations that are used akad akad wakalah among others, bai 'musawamah, and bai' murabahah
If a customer opens a deposit account using the CMP system at least perform a combination of the three contract as follows;
1)
2) Sell-buy murabahah
The sale and purchase with the purchase price on the basis of cost plus a profit and the like. Buy a commodity in the customer's stock is sold to the bank with the sale and purchase system in which the murabahah akan paid downright (deffered) according to customer agreement. Or customers to the bank to depute menjualkannya back to the broker B with murabahah system. Here means that the position of the bank as agent for the second time. And the bank just to get out of this transaction fee. Islam in the sale and purchase in a way allowed by sharia murabahah.
3) The akad akad wakalah
This happen on two conditions, when the first customers to dibank. Deputize for the bank that is buying a commodity for money yng ditabungkan kebank. When both the client appoints the Bank as representatives to sell the commodity in return. Wakalah in Islamic law is a legal contract, which can be done with the wages or commissions, or free of charge / free.
4) Wa'ad
Besides the above there is a clause in the note that this contract is a combination of unilateral promise. Namely unilateral agreement (wa'ad) to purchase the commodity from the customer, which is still in debate, whether the promise can be forced to obey or not. If both parties make a joint agreement for the sale and purchase transaction will be done later, Imam Shafi'i said, if the transaction is not valid. However, if only one party promises to buy these commodities, this will not affect too much. Some of the Ulama say that the promise can not be unilaterally forced to implement, while the contemporary Ulama-the concept of this pro-feel for the sake of smooth transaction in the commercial at this time, the unilateral promise to be binding
4.2. Commodity Murabahah Porduct Mechanism (CMP)
In the discussion chapter is focused on understanding the flow on this product, analysis of the second pillar and the terms of the contract digunkan. the third discusses the motif of this transaction, and the last on the concept of the tawarruq both pro and kotra, and in accordance with the initial goal of writing a scientific paper will be focused on mafsadah caused about this concept in general
4.2.1. Procedure or transaction flow CMP for short-term deposit
Product is the short-term deposits with a fixed margin. and the core of the transaction is carried murabahah to claim tetapnya margin (fixed return). Before untangle the issues contained in this product, I will explain how this transaction flow can be set so that the margin deposit is fixed in accordance with sharia.
In concept and practice, there are 2 slightly different scheme. The concept became the first bank agent when buying and selling the concept and only the second bank to be representative for the purchase only. Below is the first bank in the position of Figure 4.3 Flow Chart of determining margin fixed (fixed return)
From the image above can be explained as follows.
1. First Customer is to come to open a bank account of the short-term deposits Rp.1.000.000 with returnnya 3% in a period of 3 months for example. Question here is how the show can determine the price of deposits with 3%?. The answer is because this product is based murabahah. This can be seen in the picture above. The relationship between customer and bank is the first transaction as the agent bank, and banks as commodities buyers. Wakalah consequence of this is to buy a bank to sell to customers disandarkan must be using either the name or the name of the customer's bank.
2. From the picture above on the 2 after the agreement between the bank and the bank customer's going to ask the broker to buy a number of commodities with funds Rp.1.000.000, - in cash.
3. Then brokrer implement the bank. So that the broker get the voucher transaction (Warrant), which was then given to the bank. Then the bank told customers that have purchased komoditasnya. Thus, customers have had these commodities. After that the customer ordered the bank to sell To return to the cost plus margin (murabahah).
4. After that commodities purchased become the property of the customers, then sell the commodity at the price Rp.1000.000 +3% Rp.1000.000, - = Rp1.030.000 (murabahah) to deputize the bank to the broker to sell B. So that customers can margin of 3% of the funds didepositokannya. Is the origin of 3% and the return to be fixed. Here on the bank's position as an agent again not principle. If the bank as the buyer will buy the bank for over Rp.1030.000, -. Then sell the bank to broker the original price is Rp. 1000,000. Flow from all over have some things to be criticism over this practice from both sides subtansi and motivasinya.
4.2.1.1 The fixed margin.
For example, over a hoard of customers Rp.1.000.000 with returnnya 3% within 3 months. Margin is determined when the contract before the opening of new accounts. If you see this from the flow above the reasonable results of which 3% was obtained. And no one glance, or this transaction in accordance with the sharia, because this is a sale and purchase with the profits (murabahah).
In commercial transactions it is natural that the two karateristik certain contracts (NCC) and the uncertain natural contracts (NUC). Which of two karateristik is in terms of results. NCC benefits are defined in the NUC benefits can not be determined. One of the contract is a sale and purchase NCC murabahah specify where the benefit in advance. Darisini and we often terjebab therefore, need to remember that the benefits can be determined when the contract to sell or buy it happen. CMP transaction is in this return is determined by the bank-the bank's position here not as a seller but as with the agent-client agreement. This means that sale and purchase transactions have not occurred here, but will still happen later. So there is still potential for failure in the sale and purchase will be done.
This transaction does not have anyone with the practice of usury dibank now-conventional bank, the difference is I use frill sharia. Because of how the bank or the customer may be able to determine returnnya are fixed in the transaction are not selling belinya occur. Moreover, if we see more customers alike referred to as traders because it will make buying a commodity and will be selling a commodity. Remember the trade is a person who has to sell to buy, benefits that they can not depend on certain market conditions at that time. So, in trading profits can not be determined beginning this is incompatible with the principle of al-khoroj bi dhoman (business results appear along with the cost) and al ghunmu bil ghurmi (benefit risk appear together). Beginning with the determination and the determination to make this entry in the later category nasi'ah lap.
4.2.1.2 Problems of the third party purchase.
The problem is when a third party bank here once again as a customer representative to sell komoditasnya. In the concept that the occurrence of murabahah that is when the client sells the commodity he is buying with the price plus the broker B. Here, when the broker B that can not be and can not be found until the time limit. then this transaction is a deposit that provide fixed benefits (fixed return) of 3% for 3 months (or 1% and 12% a year). The advantage is still the same lap as the bank is prohibited.
If the broker was not found to limit the time that the bank will buy the sale and purchase enter this category can be forced to sell to buy. Because the bank is forced to buy commodities to fulfill the promise to give him Percentage agreeing that you have. According to scholars syafi'iyah buy and sell hanabilah is not valid because no keridhaan in the contract.
4.2.1.3 The form of savings customers.
When forming a third-party funds, the union funds that are based transaction Murabahah no basis fatwanya. In Fatawa No. 1, 2 and 3/DSN-MUI/II/2000 mentioned that the union funds in the form of a gyro, and savings deposits is based on the transaction Wadiah or Mudharabah; there is no fatwa which allows the deposit of the akad akad murabahah. Although some time ago was to allow DSN for CMP transksi deposits.
In concept murabahah profits over the customer is certainly obtainable. And transactions that occur is once in a period that has been determined. Savings in various forms has a distinctive legal consequences tasharruf up (legal action) on the funds. To wadi'ah have savings that can be used by the bank without any compensation to the customer but may mengasih bonus to him (wadi'ah yad dhomanah). that there can not be used (wadi'ah trust), and to deposit the funds collected can be used with the fate and loss (mudharabah and musyarkah).
In a draft CMP, the sale and purchase occur only once in the tempo of time. Reverse of the previous question is how to buy it if the sale occurs within a few days it means that the funds saved in the form of deposits dibank the unemployed. If these funds are used again by the bank to make a sale and purchase benefits already enjoyed by certain banks. And perhaps this is sought by the bank because he was so fresh funds are very liquid and cheap. If this does not leave the owner to buy this food sale including sale and purchase fudhuli. According to scholars malikiyah buy and sell hanfiyah suspended until there is permission from the owner. Hanabilah are buying and selling syafi'iyah is not valid.
Other reasons why the benefits of this can still be done because the bank transaction is dynamic so that the determination of margin can be made. If you like this then the reason for this is that the strengthening of uncertainty to gain advantage is very high.
Practice the short-term deposits or deposit Commodity murabahah is similar (similar) with a certificate of depsosit conventional. This means that the product can diperjualbelikan between the client (the bank / institution). So this product may include product category derivatives issued by the bank. With this product it is likely to increase speculation akan large financial institutions for sharia. Then what is the difference with the conventional pattern of transactions at this time.
4.2.1.4 Between Murabahah, ba'i dain bi offseting or dain?
If more and more we cermati we associate with the previous sale and purchase, the sale and purchase made by the bank to the broker.
لا تبع ما ليس عندك (رواه الخمسة عن حكيم بن حزام)
"Do not sell something that does not have you"
(from the Judge David HRAbu bin Hizam)
Indeed, the concept murabahah allowed by sharia. However, in practice objeknya not the property is meant by sharia. In concept deemed given transaction object (deemed to have qualified and rukunnya). In fact, if viewed from the transaction flow process dibursa measure transaction object does not exist.
Because this transaction comes from the exchange, this transaction murabahah with the akad ofsetting or reversal of earlier positions on the change in the long and short positions of vice-offsetting has been described in chapter 3 beginning on futures-talk. The question here is where the moral values didengung-dengungkan as pembeda with the conventional concept of sharia in sematkan? The purpose of sharia is being made towards human Falah.
From this concept seems memperturutkan carnality that benefit in any way (hilah) despite the fact that usury is prohibited. Abdullah saeed in his book menyoal bank syariah criticism over the neo-revivalis have been discussing how long the danger of usury, if not moral and ethical aspects, as important hilah to achieve the objective.
4.2.1.5 Tawarruq
Transaction as known by the name above Tawarruq, as approved by the perpetrators-is sale and purchase transactions made with the goal not to use goods, but to generate cash for the buyer (in this case the bank). DSN not set a fatwa on Tawarruq. Contemporary scholars who joined in islamic fiqh academy was this transaction that is prohibited in its annual conference to the 17 2003. For more details of this problem will be described in sub chapter apart.
4.2.2. Implementation Rukun And Terms For Deposit At the CMP
From the data that appeared in the draft CMP consists of several well akad akad akad primary and secondary. Main contract is named as the Commodity murabahah akad jual beli murabahah, other major contract is musawamah sale and purchase contract and the last is the default wakalah. Akad-akad this can not be separate-separate in the analysis, all interconnected. So can not see the partial. For the analysis of flow and the procedure above, we can provide in the table following the inter-related;
Based on the above table there are conditions that are not well met in Siga, the contract, and the object akadnya. On sighah requirements are not met the requirements and consent qabul occur in one chamber. This means keduabelah parties to sell and buy a present to discuss the same topic. This transaction occurred dibursa measure where the buyer and the seller did not know who the opponent transactions. They only see the list on the electronic board.
Then on the basis muta'aqidain there is no problem with the requirements that must be fulfilled by both parties that berakad. To ma'qud 'alaih there are 4 conditions that are not fulfilled the first holy object and price, in stock items that have not only have underlying assets only, and based on the price of the currency did not exist. Second requirement is not fulfilled can be used in syara '. Technically in the goods and the price can not be used according to syara 'because they are never there and never have to shift ownership dimnafaatkan by both.
Third requirement is that goods sold are owned by the seller. In commodity exchanges are in a place and never move dilondon-especially gold-sellers do not have many more items for sale barga the issue is not the seller clearing institutions. Position to buy or sell can be done by anyone who does not even have the goods. The last condition is not fulfilled can be either goods or diserahterimakan price. According to the survey, only about 2% occurred The receipt of goods. Most of the cash settlement is the withdrawal gambling (zero sum game). And the main transaction is not delivering the goods and prices, so in general there is no consignment of goods and prices.
Sell murabahah like this is a continuation of the first sale and purchase made with the bank broker. See the above table it can be concluded that this contract is not valid because it can be said in some condition is not fulfilled with perfect good of the shighoh, ma'qud 'alaih and additional requirements specific to murabahah.
Murabahah this transaction in terms that are not met from the ma'qud alaihnya is the same as the previous sale and purchase of the item and the price is not pure, can not be used in syara ', can not diserahterimakan, goods that are sold not owned by the seller. Specific requirements for additional murabahah on one condition that is not fulfilled this happens because the result of previous transactions. Terms of the transaction is legitimate before should, in the transaction are murabahah this transaction before the transaction is not valid because the first transaction includes bai 'dain or dain bi bai' bi times the time prohibited by Syariat.
View from above the third contract, it can be concluded that the concept and mechanism of this transaction is entirely legal and not prohibited by Syariat. Because there are conditions that are not fulfilled in the akad-akad akad primarily on the bai 'musawamah and bai' murabahah.
4.1.2. Motif Or Transaction Goal The CMP
It has been described above that the early appearance of this product is the lack of means of bank liquidity and financial sharia sharia. Kemudain to develop not only liquidity but also to pembiyaan and short term deposits. The primary purpose of all this is to obtain the liquid fresh funds but also beneficial for the people concerned.
Special deposits for short-term purpose is how to get bank funds are fresh and cheap customers still get the results from the funds loaned to the bank. This concept is the same as the actual interest rate (fixed return) to avoid but that does not use hilah said riab namely dperantarai sale and purchase murabahah. So the goal from the beginning of the bank intend to get the cash, with a number of funds that pay more in the future with hilah through contract, the appointment of representatives and the MoU as if this transaction is permitted by sharia. So basically this transaction motive is the same with the conventional.
Figure 4.2
Position of the product CMP views the bank's balance sheet
From the image can be seen for the discussion of the CMP margin deposits remain in the entry category pasiva, in the management of bank entry in syariah bank fund management. Based on the picture of the purpose of this product is the selectivity of public funds to save more kebank sharia. Featured margin offered is fixed or fixed return guaranteed by the bank.
Has been mentioned above that seen when the determination of margin does not have anyone with usury. But the reason this is different from the lap due to a hilah that allows freedom from usury because the procedures are made in such a way. To use hilah transaction, the legal scholars-holds valid only as long as does not damage the fundamental, basic principles of the sharia principles, or impair the benefits. However, the most important problem is the intention, any act occurred basically because of the intention, and everyone will get a reward based on the intention to do all things.
When someone good intention, can be done in the receipt, what if the intention is wrong, say it can be done wrong.
The scholars make a rule; "The standard in each transaction is the meaning of meaning (which dikandung) and goals (it) is not in the form of formal or text-lafalnya"
Connection with this Qoyyim Ibn Al-Jauziyyah as cited by Haroen Nasrun states; "who examine the (understand) in depth resources syara 'akan clear that for asy-syari' cancel spelling-pronunciation dituju by the perpetrator (a contract) is not the fact and meaning of actual goods ........ who does not memperhatikantujuan-purpose bebragai the contract and the (running) in accordance with the contract will result in the form of formal to leave (not melaknat) people of the wine rack ((used for wine) and let each person to do so, despite clear objective unutk khamr ..... make that goal a goal-confidence and confidence can be a benchmark in many different forms of legal action and the expression-expression, as well as problems that occur in practice with brkaitan-taqarrub and practice of worship (Allah). The purpose, intent, and confidence to create something to be halal, haram, valid, imperfect, obedient, maksiat, as was the goal in ibdaha make it mandatory, is recommended (circumcision), forbidden, valid or imperfect.
Indeed intention can not be seen by eye but if the intention can be so has become a trend or a motif so that together with this trend indicate intention. In exchange measure this problem can not be seen only from individuals in the meilhat what motive and purpose, but must view the macro.
From the beginning that the intention is clear Sharia bank products glance This is not the remote berbedda with conventional products. menghalalkan With the many different ways or hilah so that their destination is reached. Had this product CMP objeknya changed kepasar spot is no longer interesting for the perpetrators of this tranasksi, because it is not liquid anymore.
Has been mentioned above that the practice Commodity murabahah similar deposit at this time (similar to / like) with a certificate of deposit, which means you can diperjualbelikan again. Because this product is similar to the product said it could be the conventional goal of this product is also used to make speculations. Where is speculation at this time contains many more aspects of gharar (vagueness). With this product will increase the concentration of money pda monetary sector.
4.2.3. Akad Tawarruq Implementation
In Kekinian To this the scholars still argue about the transaction between tawarruq this can not and this transaction. The main reason for allowing the problem is related illat. If illat the mengharamkannya has been removed hilah with the way the transaction is allowed are more on the counter and intention maslahah mafsadahnya incurred from the transaction.
Islamic fiqh Academy, the state of Islamic countries that joined in OKI its annual conference in the session to 15 in the city of Mecca, has issued a resolution in support perbolehkannya transaction tawarruq, provided, the buyer does not re-sell the goods that have been in belinya with the seller first a lower price, directly or indirectly, that is the case, it is entered in a transaction that contains usury. However, the general Academy Jeddah Islamic fiqh, on the session to the 17 annual conferences, a look that Tawarruq practiced by Financial Institutions for Sharia law is illegal or prohibited.
Tawarruq structure in the adoption of Financial Institutions by Sharia (LKS) is now the structure is different from the classical tawarruq or tawarruq fighi. Tawarruq structure that has been modified by the banks and sharia have a variety of different purposes between the Bank syariah banks with sharia the other, which is known by the name of tawarruq munazam or regulated tawarruq or organized tawarruq. Stock tawarruq fiqhi or classic and tawwaruq munazam can be summarized as follows:
The scholars who allow the implementation of this tawarruq munazam holds that if each step of the procedure in lalui in processnya accordance with the principles of sharia. then there is no reason not to say that all procedures are valid. The scholars who support tawarruq munazam that the transaction is very similar to the tawarruq fighi, only the more well oranized (regular) to be more smooth and quick process.
The arguments of the scholars on the contra tawarruq Munazam namely: If the seller sells the goods with the price is higher than the market price to mutawarriq, as a result of the pending payment / installment with. With such means tawarruq munazam are indications of cooperation between the Bank and its customers that aims to provide fresh funds to the credit obligations nasbahahnya or banknya. So that the principle of intention-objektifitas of intention has been described in the discussion of the motives-in this context is relevant. Hilah second problem that is used by scholars who see the existence of contra hilah or engineering to do the things in the Disallow, the indications to get to the usury which is permanent. Through some process, Bank Syariah only role as a mediator who does not really seriously interested in the sale and purchase commodities or commodities entering international markets. So also its customers, does not intend to have a commodity or in the case of a particular case does not know about the process manahu sale and purchase commodities. Because the main goal is just to get cash from the bank immediately (if the customer's pen-shaped deposits), with debt to be paid with the installment. Therefore, some of the Ulama regard to this transaction is a transaction Ribawi
In relation to point two above is the main illat and hilah. Where to usury or the causes which forbid usury transactions containing pro tawarruq scholars who use hilah. However, the counter not only stop at the hilah they put more trasaksi hidden wisdom behind it. They see morality more the perpetrators rather than the formality transactions. According to the author in setting a legal illat is not enough but also need to see hikmahnya. This is necessary because the connection with the hiyal used to melegalkan a transaction muamalah. So, in the usury law in Islam is only a legal related forms only outside or formalitasnya course, there is no place for the moral to speak. Fiqh law should be able to run its function as a controller formal legal laws and moral ethics also checker community.
Back on the tawarruq munazam, the results of the research Ulama, tawarruq munazam have violated some of the restrictions mentioned in the hadist
5. Explicit with the same formation in inah, because komoditinya back to the original seller.
6. Where on the sale and purchase transaction for this benefit through the loan. So the purpose of the tawarruq munazam this is the exchange of cash with debt greater than value. That's why tawarruq munazam can not meet qualifikasi as a financing alternative to conventional financing on the interest-based (interest / usury).
7. One thing that is also criticized by many of the scholars who do not agree with the implementation of the transaction tawarruq munazam this is: buy commodities in the international market is a reflection of the transaction ribawi, namely al fadl usury, which is prohibited.
8. And last Jeddah Islamic Figh Academy, in its annual conference to the 17, does not give consent on tawarruq munazam practices that apply in some Bank Syariah at this time, karenakan in practice this is just a paper at the top to get the cash.
4.2.4. Why Not The Ulama Previously Said Not On Tawarruq?
This question was also haunt the author. To answer the question that needs to remember is this problem including problems ijtihadi that can change according to changes in place, situation, time, and because of social changes. Ijtihadi be changing the law is Islamic law based on the principle that has been agreed by all fuqaha (fiqh experts) and ushuliyin (fiqh experts ushul) states that;
تغيرالأحكام بتغير الأزمنة و الأمكنة و الأحوال
"Law is the law can be changed according to changes of time, place and circumstances "
الحكم يدور مع العلة وجودا وعدما
" Law rotate with illatnya (the cause of law) whether there is a lack of law and "
M. Nejatulah Sidqi provide answers about the great questions above. First fuqaha the situation is different and the macro-economic analysis tools needed to find mafsadah from tawrruq not have an effect at the time. The second mafsadah's tawarruq the economy as a whole at this time does not exist at that time. As in the case of the benefits of a particular individual easily found.
He reasoned that the economy of debt at that time was not a part of at the moment. Money at the time was not based on debt. No walupun even slightly resemble the debt market as at this time. Vendors speculation at that time focused on the real price of goods and services than intrumrnt debt. Orisil economic fluctuations occur at the time of drought, famine, crop failure or large scale changes in the population than in the financial sector, business debt financing as a second choice etc..
4.2.5. Commodity Murabahah; Maslahah Or Mafsadah?
It has been described above that the contract used in the concept of Commodity murabahah is tawarruq akad. As the author ungkapkan before that to see if this product according to the sharia or not is not only seen from the scheme or akan transaskinya flow but should also be seen from the economic aspect as well. From the writers of literature in general get that this concept gives mafsadah greater than maslahahnya.
Essence of the concept of CMP is to use tawarruq contract and the main goal of this concept is how to obtain liquidity both in terms of the customers in terms of the bank or the bank itself. Authors concur with the M. Nejatullah Sidqi that the concept of tawarruq this mafasdahnya greater than maslahahanya if dilhat in terms of public interest. Below is a mafsadah has Sidqi be by:
1) The establishment of debt Tawarruq which tend to increase in volume.
2) The exchange (exchange) with the money now money dikemudian days is not fair in terms of perspectives, including the risks and uncertainties.
3) This is the Maintenance of debt on a continual basis, such as the direction of the gambling transaction speculation
4) This is based on the financial debt (debt finance), which continuously, increase the stabilan in ekonomy. In debt-based economy, money suplay linked to the debt which is increasing tendency kedepannya (expantion) inflation hikes.
5) This is the injustice in income distribution and welfare. Financial and debt based on ongoing, ketidakefesienan in the allocation of resources.
6) With pengkonsolidasian debt-based financing (debt financing) contribute to increase the levels (level) concerns and damage (destruction) environment.
If viewed from the point of view of banking, mafsadah incurred is as follows:
1. Beginning of the first Islamic bank emerging (sharia) is to eliminate the usury jargonnya profit and loss sharing. To this jargon is not realized. Because the composition of a large murabahah is used. CMP with the short-term deposits that are bound on the derivatives market will steer the bank's initial concept. In the end the paradigm berpikirnya bank syariah same paradigm with the conventional banks.
2. Bale-bale the sharia mengerucut to the development of the concept Tawarruq / Tawriq in the form of Commodity murabahah was only profitable because of the few functions that negate most digembar-rant in the sharia banking as' the true financial intermediary between financial sector and the real sector '. And only this product berkutat in the financial sector only
3. As described beginning on this product to the more focused and institution-korporate example of fact is HSBC bank sharia issue when this product is that customers become Danamon Sharia-bank. This means the funds the bank syariah akan increase the concentration of funds in the financial sector as well as conventional. And that is only a few people enjoy it. Morality-ta 'in the economic-awun not realized that there is profit morality
4. If sharia banks are doing more transactions Commodity murabahah to attract savings / deposits from customers murabahah local purchase and then komoditasnya out-of-kelondon happens is that the cash outflow from the large-scale local to foreign country is in need of funds to finance a major development sectors riilnya. This will increase the suffering people of
5. Diterapakan practice that this is a type of deposit certificate of deposit (CD) means that this deposit can diperjualbelikan again. So there is no difference with the existing conventional. This CD includes products used derifativ form. This means this product on akhirnaya activities will lead to speculation that penuih with gharar aspects.
6. This product will add a gap (discrepancy) between the real sector and monetary (financial) greater. Where is the imbalance the real sector and financial rasionya at this time has been reached 6:500. The greater this discrepancy shows the high level of poverty and unemployment in the real world.
From the description above can be concluded that the author mafsadah incurred greater than that obtained in the maslahah. Given that in one of the sources of law saddu dzari'ah (tidakan preventive) where we must take action before going marabahaya prevention and fiqhiyah under this rule;
درء المفاسد مقدم على جلب المصالح
"Avoiding damage / risk is more interesting precedence over expediency"
الضرار يزال
"Marabahaya is eliminated"
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