Tawarruq Munazam as Mode of Financing in Malaysia

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1. TAWARRUQ MUNAZAM AS MODE OF FINANCING IN MALAYSIA STEVANI ADINDA NURUL HUDA Universitas Gunadarma , Depok (stevani@staff.gunadarma.ac.id) ABSTRAK Literally, it is derived from the word al-warq or al-wariqu or al-waraqa, which means ‘darahim madrubah’. According to the Fiqhi Encyclopeadia of Kuwait’s Ministry of Awqaf and Islamic Affairs tawarruq is a buying a commodity deferred payment and selling it to a person other than the buyer for a lower price with immediate payment. Jurists have mentioned three types of tawarruq contracts, such as Al-Tawarruq al-Fardi (Tawarruq on an Individual Basis), Al-Tawarruq al-Munazzam (Organized Tawarruq), and Al-Tawarruq alMasrafi (Banking Tawarruq). In Malaysia tawarruq munazzam used in Bursa Suq Al-Sila’ which is an international commodity platform that is able to facilitate commodity based Islamic financing and investment transactions under the Shari’ah principles of Murabahah, Tawarruq and Musawwamah. There are some challenges and issues of this concept; the main Shari’ah issue with tawarruq transactions, deposit and financing products, ijarah sukuk and Shari’ah compliant securities as underlying asset in tawarruq transaction, and the Debate over Tawarruq by Contemporary Jurists Keyword: tawarruq, finance, and investment. INTRODUCTION In Islamic finance it is very common to use some Shari’ah contracts like wadiah, Ijarah, mudharabah, musyarakah, etc. There any other contract has long been discussed by the Islamic scholars but only recently such concept was being practically implemented in Islamic Financial System. In the centre requirement of manage the liquidity by the individual or institution, the tawarruq concept is now introduced. This concept is regarded as an alternative to bai’ ‘inah concept and is used in financing product, deposits product and financial liquidity management. On 30th April 2009, the International Islamic Fiqh Academy of the Organization of Islamic Conference (referred to hereafter as OIC Fiqh Academy), in its 19th Session held in Sharjah, the United Arab Emirates, declared organized tawarruq or commodity murabahah to be impermissible. The decision, by the institution considered to be the most prestigious and high-ranking body of Shari’ah scholars in the Muslim world, has stirred much debate amongst industry practitioners and academics alike. Although many Muslim countries thought that tawarruq munazzam is haram or prohibited, but there are several countries accept tawarruq and considered it is halal. The concept of tawarruq as organized tawarruq is sought to be used as a financing and liquidity management tool despite differing views from Islamic scholar due to its role in debt creation rather than real economic activity. Country that known to justifies the use of tawarruq is Malaysia. Bank Negara Malaysia (BNM) has revised the concept of tawarruq by introducing new concept of using tawarruq, the concept introduce by them is ‘Bursa Suq AlSila’. This concept organizes between the counterparty how to manage liquidity between the banks.
2. Literal Meaning Literally , it is derived from the word al-warq or al-wariqu or al-waraqa, which means ‘darahim madrubah’. Allah says in the Qur’an (Surah Al-Kahfi, verse 19), “Now send one of you, with this, your silver coin unto the city”. Wariqah means the Kitab or tree and trade for money and awraqa means much money or Dirham and the word of (at-tawarruq) is taken from this, which means lots of money. Technical Meaning According to the Fiqh Encyclopedia of Kuwait’s Ministry of Awqaf and Islamic Affairs tawarruq is a term used by the hanbalites only. For them, its means buying a commodity deferred payment and selling it to a person other than the buyer for a lower price with immediate payment. According to Malikis, tawarruq means selling something on deferred basis, and then buying it back in cash, albeit at a lower price than the deferred price. For example, someone sells his commodity at a price that is already known to be paid by the deferred payment. He then buys it at a lesser price than the deferred price. It is known because of obtaining the money for sahib al-‘inah. This is because al-ain is the present property from the money. This is one of the practices of the Hanafis. According to the Shafi’is, tawarruq means selling something on deferred payment, and then buy it back in cash, albeit at a lower price than the deferred price. The Hanbalis said in kitab Syarh Muntaha Al-Iradat, known as Daqaiq Awla An-Nahyu Li syarhi Al-Muntaha that bai’ al-‘inah by the name of tawarruq is the need for cash, buying the equivalent of thousands and more to expand its price and there is nothing wrong with that and it is known as tawarruq. In Muntaha Al-Iradat Fi Jam’i Al-Muqni’ Ma’a At-Tanqih Wa ziadat, “If someone bought something on credit or he did not pay the price, it then becomes forbidden and the sale is invalid to its buyer by cash purchase less than the first price, and it is a tool to the second, except change its feature and it is known as the problem of ‘inah, because the commodity of the buyer in deferred is taken instead of it.” Jurists have mentioned three types of tawarruq contracts as follows: 1. Al-Tawarruq al-Fardi (Tawarruq on an Individual Basis) The Islamic Fiqh Academy defined it as, “the purchase of a commodity possessed and owned by the seller for a delayed payment, where upon the buyer will resell the commodity for cash to other than the original seller in order to acquire cash (al-wariq).” 2. Al-Tawarruq al-Munazzam (Organized Tawarruq) This is when the seller handles the process by which cash is acquired for the mutawarriq (the seeker of cash). He does so by selling a commodity to him for a delayed payment; then selling it on his behalf for cash, taking the payment from the buyer and delivering it to the mutawarriq. 3. Al-Tawarruq al-Masrafi (Banking Tawarruq) It is the performance by the bank of a formally circumscribed procedure in which a commodity (other than gold or silver) from an international commodity market or some other market is sold to the mutawarriq for a delayed payment, on the binding condition ― 2
3. either by its stipulation in the contract or by the rule of custom ― that the bank will represent him in selling it to another buyer for cash, where upon the bank will deliver its payment to the mutawarriq. The OIC Fiqh Academy in its 19th session held in Sharjah, United Arab Emirates (UAE) from 1st - 5th Jamadul Ula 1430H corresponding to 26-30 April 2009, after reviewing the researches submitted to the Academy pertaining to the topic of Tawarruq; its nature, types (the known al-fiqh type and the organized banking type), after hearing the discussions revolved around it, after studying the resolution of Islamic Fiqh Academy of the World Muslim League in Makkah regarding this, decided the following: Having reviewed the research papers that were presented to the Council regarding the topic of tawarruq, its meaning and its type (classical applications and organized tawarruq), a resolution was passed. Furthermore, after taking into account the discussions that revolved about the applications of tawarruq, presented at the Rabitah (Muslim World League) Council of Fiqh, the following were the resolutions: First: Types of tawarruq and its juristic rulings: 1. Tawarruq from the juristic point of view; A person (mustawriq) buys commodity at a deferred price in order to sell it at cash usually at a lower price to third party other than the initial seller for the purpose of getting cash. This is the classical tawarruq, which is permissible, provided that it complies with the Shari’ah requirements on sale (bay’). 2. The contemporary definition on organized tawarruq; A Person (mustawriq) buys commodity from local or international market at a deferred price. Simultaneously, he (mustawriq) will ask the financier in his own capacity or through his agent or by special agreement with mustawriq to rearrange the sale transaction usually at a lower spot price. 3. Reverse Tawarruq, it is similar to organized tawarruq, but in this case, the (mustawriq) is the financial institution and the financial institution in this case assume the role as a client. Second: Both (Organised and reverse tawarruq) are not permissible because of the MoU that occurs between financier and mustawriq whether it is done explicitly or implicitly or based on common practice. This is considered a deception, i.e. in order to get the additional quick cash from the contract. Hence, the transaction is considered as containing the element of riba. The recommendation is as follows: To ensure that Islamic banking and financial institutions adopt investment and financing techniques that are Shari’ah-compliant in all its activities, they should avoid all dubious and prohibited financial techniques. All transactions must conform to Shari’ah rules in order to ensure it meets the objectives of Shari’ah (maqasid Shari’ah). In addition, such move will ensure the progress and actualization of the socioeconomic objectives of the Muslim world. If the current situation is not rectified, the Muslim world would continue to face serious challenges and economic imbalances that will never end. 3
4. Hukm of Tawarruq The scholars differed concerning the hukm of tawarruq . According to Abu Yusof, bai’ al‘inah is permissible, but not encouraged. According to Muhammad bin Al-Hassan, bai’ al‘inah is impermissible. He said that, “In my heart, this sale is like mountains invented by riba dealers.” Some Hanafi scholars said that, “Beware of al-‘inah because it is evil.” Their evidence is based on what Prophet (SAW) said, “If you practice al-‘inah, then you follow the tails of cows, you becomes humiliated and your enemy becomes stronger than you.” There is no repugnance to deal with it, but there is a contradiction from the good deed of loan. According to the Malikis, tawarruq is impermissible and their evidence is based on what Ahmad said in “az-zuhdi”, narrated from Ibn Umar, “There is a time that comes toward us and we find that none of us says that he has the right of Dinar and Dirham from his Muslim brother.” Then, he said, “I heard Rasulullah (SAW) said, “If people practice ‘inah, then they follow the tails of cows and leave jihad in the way of Allah and Allah will punish them and not forgive them until they come back to their religion.” Ibn Rashid said, “Someone who sells a commodity on deferred basis and then buys it either with it’s specify or before or after and every each of three either buys it same with what he sold either less or more which is different from the two.” This involves buying a commodity in cash and selling it on credit, where the deferred price is less/equals to/more than the cash price. According to Malik and most ahl-madinah, this is impermissible. However, Shafi’i, Daud and Abu Thaur said that this is permissible. And to prevent it, as he drew prevented the second sale of first sale. Then, its accusation is to be paid in Dinar rather than to which riba is forbidden. So, this picture is connected with the forbidden. For instance, someone says to another, “I borrow from you ten Dinar in one month and I pay back twenty dinar and says this would not be allowed, but I sell camel from you at twenty in one month then, I buy it in cash at ten dinar.” Another form is that there is no accusation on it if give more price at the lower deferred which is not accuse and if buy it at a price that is lower than the deferred price. Their evidence is based on a Hadith Aisha (may Allah have mercy upon her) from Aliyah bint Aifa, which she said, “I, a maid and wife of Zaid ibn Arqom went to Aisha, the maid said, ‘I sold a child of Zaid ibn Arqom at three hundred dirham to the Ata. Then I bought it from him for six hundred dirham.’ She (Aisha) said to her, ‘shame to what you bought, tell Zaid ibn Arqom that he had spoilt his jihad with the Prophet until he repents.” (Reported by Ahmad). The Hanbalis sees tawarruq as impermissible, according to what was explained by AlMardawi in kitab al-insof, “If I need cash as buying rights to the equivalent of one hundred one hundred and fifty, then this is impermissible.” This is known among the Hanbalis as tawarruq. What is the difference between tawarruq and bay al-‘inah? The scholars have different in their technical definitions of al-‘inah due to their differences of opinion regarding it s forms. However, one of its most famous definitions among early scholars was, “One person sells a commodity to another for a specific price with payment delayed unt il a fixed date, then buys it back from him at a lower price for cash.” The difference between al-‘inah and tawarruq (on the Hanbali usage) is that al-‘inah implies the act, where a person sells a commodity on credit, then buys it at a current price lesser than the selling price. But as for tawarruq, the buyer is not the seller himself, but rather the first buyer will have to sell the commodity to the third person. The t h ir d p a r t y h a s no 4
5. connection with the first seller . In case of al-‘inah, the commodity will go back to the first seller, while in the case of tawarruq, it will not return to t he f i r s t s e l l e r , bu t r a t he r i n t h e fr e e d i s p o s a l o f t h e b u ye r , i n w h a t he possesses to sell it in the market at a current price, so as to acquire cash, e x c e p t t ha t t ho s e w ho m e nt io ne d it a mo ng t h e fo r m s o f a l - ‘ i n a h , o n l y viewed that it shares things with al-‘inah in commons. First similarity, the f i r s t s e l l e r w i l l s e l l t h e c o m mo d it y o n c r e d it , a t a p r i c e h i g h e r t h a n t he current market price. Second, the aim in both is to acquire cash. Third, both transact ions adopt a trick or way out to avoid any involvement in loaning connected with interest. From the previous definitions, according to the jurists, it has been shown that there is a difference between ‘inah and tawarruq. Bay al-‘Inah consist two parties. First party, the seller is the party who buys the commodity at a certain price. Second party, the buyer is the party who buys the commodity at a higher price on deferred payment. But in tawarruq, there are three parties, i.e. the seller, buyer and the third party. The first party buys the commodity from the seller, and then sells it to the third party who is not the first seller. ‘Inah is prohibited by majority of the jurists, because it leads to riba. It falls within the prevention of things that causes prohibited actions (saddu zhara’i). For example, the path that leads to haram is also haram. ‘Inah leads to riba, because there is a difference in the price, i.e. between the cash and deferred price. The prohibition of ‘inah is reported in the Hadith above. The similarities between tawarruq and bay al-‘inah are as follows:  The first seller will sell the commodity on credit, at a price higher than the current market price.  The aim in both is to acquire cash.  Both transactions adopt a trick or way out to avoid any involvement in loaning connected with interest Application of Tawarruq Munazzam Here is the application of tawarruq munazzam in liquidity management. In Malaysia tawarruq munazzam used in Bursa Suq Al-Sila’ which is an international commodity platform that is able to facilitate commodity based Islamic financing and investment transactions under the Shari’ah principles of Murabahah, Tawarruq and Musawwamah. Formerly known as Commodity Murabahah House, Bursa Suq Al-Sila’, is an initiative spearheaded by the Malaysia International Islamic Finance Centre (MIFC). The trading platform is operated by Bursa Malaysia via it’s fully Shari’ah compliant wholly owned subsidiary, Bursa Malaysia Islamic Services Sdn. Bhd. 5
6. The structure of Commodity Murabahah Programme (CMP) for liquidity management to absorb liquidity comprising several activities is depicted in figure 1. Several mechanism of Commodity Murabahah Programme (CMP) for absorbing liquidity as depicted in figure 1 can be further illustrated as follows: 1. Bank A that faces excess liquidity can manage their liquidity by purchasing commodities from broker A on cash basis. 2. Thereafter, the bank sells the commodities to Central Bank of Malaysia on deferred price (cost price plus profit margin). 3. Central Bank of Malaysia sells the commodity to broker B in on spot at the original price to net off the commodity position that it holds when it purchased from bank A. The Central Bank of Malaysia may appoint the bank as his agent to sell the commodities in the commodity market. On maturity date, bank A will be receiving the amount equivalent to the principal plus the net yield as agreed beforehand. In the final analysis, CMP provides avenue for Islamic banks that face excess liquidity to manage their funds productively, while the Central Bank of Malaysia can obtain funds immediately enabling an efficient and effective cash liquidity management. On the other hand, if any bank faces temporary liquidity problems due to mismatch between assets and liabilities, they can also benefit from this CMP instrument. Several activities of CMP in injecting liquidity to problematic banks are depicted in figure 2. 6
7. As depicted in figure 2 above , a bank faces temporary liquidity problems can use CMP based on the following steps: 1. Central Bank of Malaysia purchases the commodities from broker A on cash basis. Alternatively, the Central Bank of Malaysia can appoint bank B (that faces temporary liquidity problem) as its agent to buy the commodities from commodity market. Bank B will receive the funds for the purchase of commodities on spot basis. The ownership of the commodities is then transferred to the Central Bank of Malaysia. 2. Thereafter, the Central Bank of Malaysia sells the commodities to bank B on deferred price (cost price plus profit margin). Hence, the ownership of the commodities to bank B. 3. Bank B sells the commodities to broker B in on spot at the original cost price to net off the commodity position that it holds when it purchased from Central Bank. On maturity date, bank B will have to pay Central Bank for the funds equivalent to the principal plus profit. In the final analysis, bank B obtains funds on spot which is required to manage its liquidity effectively and efficiently. Challenges of Tawarruq Munazzam There are some challenges and issues of this concept. 1. The main Shari’ah issue with tawarruq transactions is related to the fact that the intention behind the purchase of the commodity is not to own and use the commodity. Instead, the commodity is sold instantaneously in order to obtain the required funds. The majority scholars have approved it subject to certain conditions such as an auditable ownership transfer of the commodity and separation of the purchase and sale arrangements. Some banks that are using tawarruq structures have, not adhered to these conditions. Example by combining the sale and purchase into a single transaction in which the banks buys from, and sells to the same broker as an agent on behalf of the client. But in fact purchase and appointing the bank as agent are all happening in one schedule, it is almost impossible to see who owns the commodity at any point during the execution of the transaction. Consequently, if the transaction falls through at any point ownership of the asset is not clear. 7
8. The Shari ’ah council of the Accounting and Auditing Organization for Islamic Financial Institutions (AAOIFI) has approved tawarruq and has issued a separate standard to regulate this instrument to ensure that it is Shari’ah compliant. 2. Deposit and financing products Islamic financial institution made a proposal to offer deposit product and financing based on the concept of tawarruq or commodity murabahah. In brief, the mechanism of commodity murabahah deposit involves the following transactions. First, the customer (depositor) appoints bank as an agent to purchase metal commodity from metal trader (A) on cash basis in an established metal commodity market. Second, the bank will thereafter purchase the metal commodity from the customer on a deferred sale at a cost price plus profit margin. Third, the bank will sell back the metal commodity to metal trader (B) in the metal commodity market. As an agent to purchase the metal commodity on behalf of the customer, the bank receives cash form the customer for the price of the commodity which is deemed as deposit in the bank’s account. As a result of second transaction above, the bank assumes liability (the cost price of the commodity plus profit margin) to be paid to the customer on maturity. The price of the commodity purchased by metal trader (A) and the commodity’s price when sold to the metal trader (B) are the same. Fourth, the bank purchases metal commodity from metal trader (B) on cash basis. Fifth, the bank sells the metal commodity to the customer on deferred price (cost price plus profit margin). Sixth, the customer may appoint the bank as his agent to sell the metal commodity to metal trader (A) on cash basis in the metal commodity market. While the cash sale price by the customer to the metal trader (A) enables the customer to obtain cash for financing, the deferred sale price from the bank to the customer enables the customer to pay back the financing facility to the bank within an agrees term. The issue is whether the above mechanism of transactions complies with Shari’ah. But the resolution of The Council in its 51 st meeting held on 28th July 2005/21st Jumadil Akhir 1426 resolved that deposit product and financing based on the concept of tawarruq which is known as commodity murabahah is permissible. 3. Ijarah sukuk and Shari’ah compliant securities as underlying asset in tawarruq transaction. There is a proposal to use ijarah sukuk and Shari’ah compliant securities as underlying asset in tawarruq or murabahah to manage liquidity in Islamic financial system. The proposed characteristics of ijarah sukuk include ijarah sukuk which is backed by tangible asset, financial asset and a combination of both tangible and financial asset. For Shari’ah compliant securities, the proposed characteristic is that the securities must be endorsed as Shari’ah compliant. The issue here is whether the use of financial asset like sukuk and securities instead of commodity in tawarruq is permissible in Shari’ah. The resolution from The Council in its 58th meeting held on 27th April 2006/28th Rabiul Awal 1427 resolved that the use of ijarah sukuk and Shari’ah compliant securities as underlying asset in tawarruq or murabahah to manage liquidity in Islamic financial system is permissible. However, such ijarah sukuk shall be backed by tangible asset and not financial asset. 8
9. 4 . The Debate over Tawarruq by Contemporary Jurists The issue of tawarruq has also been addressed by contemporary jurists. The International Islamic Fiqh Academy of the Organization of Islamic Conference (OIC Fiqh Academy) gives their first opinion which issued in the 15th session of the Academy in September 1998 (Rajab 1419H), whereby they permitted the contract, subject to the condition that the customer not sell the commodity to its original seller, in order to avoid direct evidence of ‘inah as a legal trick to circumvent the prohibition of riba. However, in its 17th session, held in December 2003, the OIC Fiqh Academy clarified its stand on tawarruq by distinguishing between two types, tawarruq fiqhi (also known as tawarruq haqiqi or real tawarruq) and tawarruq munazzam (tawarruq masrafi or organized tawarruq). While the former is allowed the latter form, which is widely practiced by Islamic banks today, is deemed to be as synthetic and fictitious as bay ’al-‘ inah and, hence, disallowed. The decision was further reiterated in its 19th session, held in Sharjah, United Arab Emirates in April 2009, in which the Academy banned the application of organized tawarruq because simultaneous transactions occur between the financier and the mustawriq, whether it is done explicitly or implicitly or based on common practice, in exchange for a financial obligation. This transaction is considered a deception, i.e. a dubious transaction in order to get additional quick cash from the contract. Hence, the transaction is deemed to contain the element of riba. In the resolution, the OIC Fiqh Academy also made a clear recommendation that Islamic banking and financial institutions should avoid the instrument as it deviates from the true objectives of the Shari’ah. It is believed that adoption of such a dubious instrument will cause the Muslim world to face serious challenges and economic imbalances that will never end. Conclusion Organised tawarruq is a new form of contract, although it has some characteristics of certain other forms of contract in traditional Islamic law, and the rulings on the forms which have interrelated characteristics are not applicable to organised tawarruq. Therefore, the ruling of organised tawarruq has to be considered fewer than two concepts; the first concept is the ruling of the contracts which are related to organised tawarruq. The second concept is the general rules of Islamic business transactions. Allah stated in Surah Al-Baqarah verse 275, “Allah SWT. has permitted trade and forbidden riba.” From this Surah our opinion is tawarruq munazzam is a form of trade, which the assumption it lawful unless there is proof that prohibits such a particular transaction. Beside that there is a maxim “Neither harm nor reciprocating harm” (la darara wa la dirara), based on this maxim, Imam As-Suyuti stated that there is a need to adopt some controversial contracts like tawarruq as tools for liquidity risk management, without having to resort to conventional riba based borrowing. This is supported by another maxim “Severe harm is avoided by a lighter harm” (al-darara al-ashaddu yuzalu bi darari al-akhaffu) or “choosing between the lesser of two evils” (akhhaf al-dararyn). Even some scholars stated that tawarruq munazzam is unacceptable in Islamic law, but it is better than involvement in usury transaction. 9
10. REFERENCES Bursa Malaysia . 2009. World’s First Shari’ah-Based Commodity Trading Platform to Facilitate Islamic Finance Goes Live! Malaysia: Kuala Lumpur. Dusuki, Asyraf Wajdi. 2010. Can Bursa Malaysia’s Suq al-Sila’ (Commodity Murabahah House) Resolve the Controversy over Tawarruq? Research Paper for International Shari’ah Research Academy for Islamic Finance, No. 10/2010. ----------. Commodity Murabahah Programme: An Innovative Approach to Liquidity Management. Journal of Islamic Economics, Banking and Finance. Kahf, Monzer. 2004. Outlines of A Brief Framework of Tawarruq (Cash Procurement) and Securitization in Shari’ah and Islamic Banking. Written for the Seminar of the AAOIFI in Bahrain, February 15, 2004. Khayat, Abdul Aziz. Tawarruq, its Concepts, its Practices and its Economics Implication on its Promotion by Islamic Banks. NN. Tawarruq. OIC Fiqh Academy Resolution. http://www.isra.my/index.php?option=com_content&view=article&id=355:oic-fiqhacademy-ruled-organised-tawarruq-impermissible&catid=11:tawarruq&Itemid=15 Schoon, Natalie. 2008. Application www.islamicfinanacenews.com. of Islamic Products in Treasury. http://www.scribd.com/doc/38181141/Issues-on-the-Permissibility-of-Tawarruq-ContractsDraft-1#outer_page_3 10
11. Perpustakaan Universitas Gunadarma BARCODE Nomor Pengunggahan BUKTI UNGGAH DOKUMEN PENELITIAN PERPUSTAKAAN UNIVERSITAS GUNADARMA SURAT KETERANGAN Nomor : 9/PERPUS/UG/2021 Surat ini menerangkan bahwa: Nama Penulis : Stevani Adinda Nurul Huda Nomor Penulis : 160805 Email Penulis : stevani@staff.gunadarma.ac.id Alamat Penulis : Jl. Margonda Raya 100, Depok, Jawa Barat Telah menyerahkan hasil penelitian/ penulisan untuk disimpan dan dimanfaatkan di Perpustakaan Universitas Gunadarma, dengan rincian sebagai berikut : Nomor Induk : FEUG/SY/PENELITIAN/9/2021 Judul Penelitian : TAWARRUQ MUNAZAM AS MODE OF FINANCING IN MALAYSIA Tanggal Penyerahan : 28 / 02 / 2021 Demikian surat ini dibuat untuk dipergunakan seperlunya dilingkungan Universitas Gunadarma dan Kopertis Wilayah III. Dicetak pada: 28/02/2021 22:18:07 PM, IP:182.2.132.95 Halaman 1/1