Rekontruksi Asas Otoritas Syariah Dalam Hukum Perbankan: Studi Komparasi Beberapa Negara Muslim

ABSTRAK   Rekonstruksi asas dan model otoritas syariah dalam hukum perbankan di Indonesia dan berbagai negara muslim berada  dalam  tarik  menarik  antara prinsip legalitas, kompetensi, dan independensi. Hal itu dituangkan dalam tiga elemen utama otoritas syariah: otoritas produksi fatwa, proses transformasi fatwa dalam hukum positif, dan mekanisme pengawasan kepatuhan syariah. Formula di Indonesia adalah bentuk kompromi yang mengedepankan prinsip independensi terhadap negara dan meneguhkan praktek living law. Model  ini relevan untuk periode transisi. Namun dalam  jangka panjang, diperlukan model otoritas yang tak hanya independen secara politik hukum, tapi juga legitimated dalam aspek legalitas dan daya ikat produk hukum, serta kredibel dari aspek kompetensi.   Kata Kunci: Otoritas Syariah; Hukum Perbankan Islam; Fatwa.   ABSTRACT   The reconstruction of the principles and models of sharia authority in Islamic banking law in Indonesia and various Muslim countries is in a tension between the principles of legality, competence and independence. This is stated in three main elements of sharia authority: the authority of fatwa production, the process of transformation of fatwa in positive law, and the mechanism of sharia compliance monitoring. Formula in Indonesia is a form of compromise that promotes the principle of independence of the state and reinforces the practice of living law. This model is relevant for the transition period. But in the long period, we need a model of authority that is not only politically independent from the state, but is also legitimated in terms of legality and the binding capacity of legal products, as well as credible in terms of competence aspects.   Keywords: Sharia Authority; Islamic Banking Law; Fatwa

DEKONSTRUKSI FATWA MENGENAI LARANGAN BUNGA BANK (QIYAS VS ISTIHSAN)

Deconstruction is intended to serve as critique to the method of determining the prohibition status of bank interest, which is analogous to usury, as well as reconstructing the issue with other methods to produce a more implementable fatwa, especially in a pluralistic society. Normative legal research is carried out using a historical approach and a conceptual approach regarding usury and interest, as well as the methods and the rationale for the prohibition of both. Application of analogy (qiyas) can bring "unsatisfactory" results as a method of granting the legal status of bank interest in the context of a pluralistic society because this reasoning method is heavily focusing on 'illat (ratio legis, legal cause) and does not consider space, time, and circumstances involved. Meanwhile, the application of istihsan (juristic preference) is possible with justification for emergency (necessity), 'urf (custom) and maslahah (benefit), resulting in different legal status of bank interest that not all bank interest is haram. This provides convenience in its implementation within a pluralistic society

DEKONSTRUKSI FATWA MENGENAI LARANGAN BUNGA BANK (QIYAS VS ISTIHSAN)

Deconstruction is intended to serve as critique to the method of determining the prohibition status of bank interest, which is analogous to usury, as well as reconstructing the issue with other methods to produce a more implementable fatwa, especially in a pluralistic society. Normative legal research is carried out using a historical approach and a conceptual approach regarding usury and interest, as well as the methods and the rationale for the prohibition of both. Application of analogy (qiyas) can bring "unsatisfactory" results as a method of granting the legal status of bank interest in the context of a pluralistic society because this reasoning method is heavily focusing on 'illat (ratio legis, legal cause) and does not consider space, time, and circumstances involved. Meanwhile, the application of istihsan (juristic preference) is possible with justification for emergency (necessity), 'urf (custom) and maslahah (benefit), resulting in different legal status of bank interest that not all bank interest is haram. This provides convenience in its implementation within a pluralistic society

Participation Banking Competitiveness (A Theoretical Review of Pakistan’s Islamic Banking Sector)

This paper theoretically reviews the performance and growth of participation banking industry of Pakistan. Secondary data is obtained from central banks, commercial banks, DFIs and organizations involved in financial research.  In addition, financial data of the four participation (Islamic) banking operating in Pakistan has been sought to determine the issues, bottlenecks and opportunities present in the participation banking sector of Pakistan. In relation to the conventional banking sector, this research finds higher proportional increase and growth for participation banking sector as depicted by their financial indicators like leverage, cost to income ratio, asset growth, financing growth, investment account growth (YoY). In contrast, conventional banks present a far better picture in their financial indicators of total banking assets, financing assets, investment accounts and they performs better with respect to return on assets, return on equity , revenue/asset ratio and non-financing income ratio. Based on the above analyses, it can be concluded that participation banking has a great potential for growth in near future and with better image-building and perceptual shift regarding Islamic modes of finance, extensive growth could be expected. Keywords: Competitiveness, Participation Banking, Conventional Banking, Financial Indicator

Financial Inclusiveness in Islamic Banking: Comparison of Ideals and Practices Based on Maqasid-e-Shari’ah

In this study, we attempt to document the progress in Islamic banking industry of Pakistan towards fostering an egalitarian and equitable financial intermediation. We use a set of quantitative indicators to objectively asses the performance of Islamic banks towards fostering a participative, inclusive, cost effective and real sector oriented financial intermediation. We highlight that currently, the performance of Islamic banks on these fronts leaves much to be desired. We highlight that the low finance to deposit ratio and high average cost of financing is inconsistent with Maqasid-e-Shari‟ah. We also identify various categories of poor people who need finance for their health, education and small business working capital needs, but they cannot be served by Islamic banks by using the available product structures. We give a geographical presence of Islamic banks which shows that they are mainly based in big urban cities. We argue that most of the Islamic banking debt based products are close, but relatively expensive substitutes. Finally, we discuss that the distinctive and preferable imperfect substitute product structures like equity based financing contracts are not acceptable to the major part of the real sector industries as well as to the Islamic banking stakeholders, i.e. depositors and shareholders in their current form

Financial Inclusiveness in Islamic Banking: Comparison of Ideals and Practices Based on Maqasid-e-Shari’ah

In this study, we attempt to document the progress in Islamic banking industry of Pakistan towards fostering an egalitarian and equitable financial intermediation. We use a set of quantitative indicators to objectively asses the performance of Islamic banks towards fostering a participative, inclusive, cost effective and real sector oriented financial intermediation. We highlight that currently, the performance of Islamic banks on these fronts leaves much to be desired. We highlight that the low finance to deposit ratio and high average cost of financing is inconsistent with Maqasid-e-Shari‟ah. We also identify various categories of poor people who need finance for their health, education and small business working capital needs, but they cannot be served by Islamic banks by using the available product structures. We give a geographical presence of Islamic banks which shows that they are mainly based in big urban cities. We argue that most of the Islamic banking debt based products are close, but relatively expensive substitutes. Finally, we discuss that the distinctive and preferable imperfect substitute product structures like equity based financing contracts are not acceptable to the major part of the real sector industries as well as to the Islamic banking stakeholders, i.e. depositors and shareholders in their current form

Systematic literature review on islamic bank customer adoption

The development of Islamic banking has been widespread in Muslim-majority and non-Muslim countries. In the process of such developments, it is known that the adoption of Islamic banking products and services is an interesting phenomenon to study. This study aims to uncover the supporting factors for adopting Islamic banking in various countries. With a systematic literature review approach to publications in databases of reputable journals, this study has recognized that the adoption process of Islamic banking can be understood through the Diffusion of Innovation theory, Theory of Planned Behaviour, and Theory of Reasoned Action, including modifications. The religiosity aspect is a factor that exerts internal influence in the adoption of Islamic banking, while the environmental support factor is an external factor that supports adoption. This study has confirmed that adoption theories have become a powerful platform for understanding the acceptance of religiously motivated products for consumers with different backgrounds of religiosity

Ineffective Awareness of Islamic Banking Products as A Root Cause of Reluctance for the Same by Corporate Customers: A Case Study of MCB – NIB Merger in Pakistan

This paper focuses on the lack of awareness as the major reason behind the reluctance of Corporate Customers towards Islamic Banking Products in Pakistan. Various reasons for avoiding the Islamic Banking products among customers are reflected in the literature reviewed. However, the need for further work analysis is required in the reviewed literature. Hence, the rationale for this study is to know the influence of unawareness about Islamic banking products among corporate customers and employees. This aspect was further explained through a case study. The case is based on the study of customers’ reluctance in being a part of Islamic Banking Branches. This is because M-90 branches of Ex-NIB decided to become part of MCB Islamic after merger. Nevertheless, most of the corporate customers in these branches denied to associate with MCB Islamic, but rather preferred to become a part of Corporate Conventional Banking branches of MCB Bank. Results are extracted on the basis of a detailed review of literature and reviews from the industry experts. This study will be useful to understand reasons for this unwillingness that will provide us ways to avert any shortcomings if required in the products and services being provided by the Islamic Banks

Growth Prospects and Customer Expectations in Islamic Banking

Islamic Banking has gained enormous popularity in Pakistan in a short span of time and still has a huge potential to grow in the market. Many Conventional Banks having Islamic Banking windows and a few full-fledged Islamic banks are striving hard to remain alive in the stiff competition for market share, resulting in more banking choices for the customers. Still there is lot to be achieved and the whole banking system has to get rid of the curse in the form of Riba, which has strongly been denounced and prohibited in the Holy Quran. Islamic Banks at the moment hold merely 9.4% of the whole banking Market which is far below than desired. In this study, an attempt will be made to analyze the growth trends in the Islamic banking and its implications for the society and the economy in particular. Customers’ perceptions & expectations and certain myths regarding Islamic banking will also be captured during the study. This will not only help us in understanding the potential and opportunities available in the industry but also give an idea that what the customers want and expect from Islamic banking. Moreover, the study will also add to the latest pool of knowledge on the subject. There seems a dearth of updated quality research on the matter and this will serve as an important reference and latest work on Islamic Banking in Pakistan

Riba Free Loan in Islamic Finance: Key to Social Development and Welfare

Worldwide Islamic financial institutions (IFIs) do not offer loan for avoiding interest/usury, confine their Shariah interpretations to a particular school of thought and offer products for rich people only. Loans are however demanded by the underdeveloped social actors in economy for welfare and development. As per Islam usury (Riba) free loan (Qard – e – Hassan or Dain) is a key to social development. Modern implicit and explicit shapes of master-servant relation among individuals and institutions are legal phenomena with diversified standards and patterns. As per Jaferia school of thought, Islam allows presetting Hadya (gift) in loans among master-servant. These options were utilized by our study for proposing a Pro-Hadya Riba Free Loan among master-servant. Such model of loaning can help stakeholders of Islamic finance improving the existing landscape from pro-commercial creed to pro - social development approach. It is further a potential replacement of fixed rate of interest/usury with Hadya. Such loan can be utilized for turning pension, gratuity, provident fund and other investment schemes Shariah based easily by taking advantage of master-servant setup. Findings and recommendations of this study contributes novel and further invites future research on its engineered model of loaning