Fatwā on the prohibition of ribā or bank interest was not solely the decision of Dewan Syari‘ah Nasional (DSN, National Sharī‗ah Board) but from MUI which is above it. All this time, the decision of DSN focuses on the answering of the question or gives the solution from the problems which emerged in the practice of the sharī„ah financial institutions. Hence, the decision of DSN to this fatwā is not really have potential impact to the society. Also this fatwā is not only on the behalf of the members of MUI itself but more than answering to the question of the Muslim society and the Muslim entrepreneurs who operate Islamic financial institutions in Indonesia.15
The decision of MUI fatwā on the law of bank interest was not laid as a single decision. It was along with other decisions about terrorism, determination of the first Ramadān, Shawwāl, and Dhulhijjah. Besides that, the decision was not only discussed and decided by the Commission of the Fatwā MUI of Central in a special meeting, but also inviting some of the members of Commission of Fatwā from the local level that the term which was used is not MUI fatwā but Ijtimā„ Decision of the
‗Ulamā‟ of National Commission of Fatwā.16
‟Ijtimā„ Decision of the ‗Ulamā‟ of National Commission of Fatwā determined the law of bank interest that consists of three parts: 1) the definition of interest and ribā, 2) the law of bank interest, and 3) the law of conducting mu„āmalāt with the conventional banking. This fatwā was legalized by the chairman of The Commission Fatwa of MUI, KH Ma‘ruf Amin and the secretary Drs.
Hasannuddin, MAg. The fatwā of MUI to prohibit bank interest is based on three opinions. There are the opinions from individual ‗ulamā‟ fiqh, the opinions from international Islamic institutions by collective ‗ulamā‟, and the opinions of collective Indonesian ‗ulamā‟ by DSN MUI, Majelis Tarjih Muhammadiyah, and Baht al-Masa‘il NU.
The fatwā issued is started with describing the foundation from the Qur‘ān i.e. Al-Baqarah 273- 280 and Āli ‗Imrān 130, hadīth from Muslim, Al-Nasā‘i and Ibn Mājjah, and lastly from ijmā ‗ulamā‟
on the prohibition of ribā. Furthermore, MUI explained the arguments from many ‗ulamā‟ fiqh that interest in the transactions (credit, al-qard wa al-iqtirād) is regarding to ribā. The nine opinions of the
13 Ibid., p. 66-72.
14 Ibid., p. 72-6.
15 Muhammad Ghafur W, Memahami Bunga dan Ribā Ala Muslim Indonesia, Yogyakarta: Bina Ruhani Insan Press, 2008, p. 91-92.
16 MUI Pusat, Keputusan Ijtima ‗Ulamā‟ Komisi Fatwā se-Indonesia tentang Fatwā Bunga Bank (Interest/Faidah), Terorisme, dan Penetapan Awal Ramadān, Shawwāl, and Dhulhijjah, Jakarta, 16 December 2003., in Jaih Mubarok, Perkembangan Fatwa Ekonomi Syari‟ah di Indonesia, Bandung: Pustaka Bani Quraisy, 2004, p. 34.
23
‗ulamā‟ in determining the law of bank interest are Al-Imām al-Nawawī, Ibn al-‗Arabī, Al-‗Aynī, al- Sharkhashī, al-Rāghib al-Isfahānī, Muhammad Ali al-Sābūnī, Muhammad ‗Abū Zahrah, Yūsuf al- Qardawī, and Wahbah al-Zuhailī. Based on these nine ‗ulamā‟ opinions, MUI concluded that bank interest implemented in conventional banking system is related to ribā and prohibited in the Qur‘ān. It is stated in the Qur‘ān that ribā is a practice to conduct an interest to the borrower when somebody cannot pay the debt in time according to the transaction.
In addition, MUI Commission of Fatwā added a foundation for this fatwā with the decisions of international fatwā institutions which stated that bank interest is unlawful. The five decisions used by MUI are 1) Majma‗ al-Buhūth al-Islāmiyah in Al-Azhar Egypt on May 1965, 2) Majma‗ al-Fiqh al- Islāmī conducted on 22-28 December 1985/ 10-16 Rabī‗ al-Awwal in Jeddah by Organization of the Islamic Conference (OIC), 3) Majma‗ Fiqh Rābitah al-‗Ālam al-Islāmī, the decision six session IX conducted in Mecca on 12-19 Rajab 1406 H, 4) the decisions of Dār Al-Iftā‘ of the Saudi Arabia Kingdom on 1979, and 5) the decisions of Supreme Sharī‗ah Court in Pakistan on 22 December 1999.
The MUI Commission also pays attention to the decrees issued by some Islamic organizations as another foundation used in this fatwā. The decrees are 1) the fatwā from DSN of MUI in 2000 stated that interest is not accordance with sharī„ah, 2) the assembly of Majelis Tarjih Muhammadiyah in Sidoarjo in 1968 urged the Central Board of Muhammadiyah to apply the implementation of conception of economic system for banking according to Islamic rules, 3) the decree from National Convention of Alim ‗Ulamā‘ and Grand Conference of Nahdlatul ‗Ulamā‘ (NU) in 1992 was conducted in Bandar Lampung mandated to establish non-interest system of Islamic Banking. From the foundations used by MUI showed that Islamic religious authority in Indonesia not only based on domestic components but also an international component in issuing a fatwā.
Based on those foundations explained by MUI Commission of Fatwā, MUI then decided the decisions of fatwā on bank interest. At first, MUI explained the definition of interest and ribā.
According to MUI, bank interest is an additional charge of loan transaction (al-qard) counted from the capital loan without considering the benefit or result of the capital, based on the duration, counted in advance, and generally based on the percentage. Furthermore, riba in this fatwā is regarding to an additional (ziyādah) without compensation that is occurred because of the delay payment on the transactions promised in advance and this is called as ribā al-nasī‟ah.
Second, it was decided the law of bank interest in this fatwā. It is stated that the practice of bank interest at this time in the form of transaction has fulfilled the criteria of ribā al-nasī‟ah. As a result, the practice of bank interest at the moment is one of the forms of ribā and must be prohibited. Another explanation of the decisions is that the practice of bank interest conducted by Banks, Insurances, Stock Exchanges, Pawnshop, Cooperatives, and another Financial Institutions or the ones as an individual is unlawful (harām).
The next decision of this fatwā is about the law of conducting mu„āmalāt with the conventional financial institution or conventional banking. In this decision, for the people who live in the area which have and already established Islamic financial institutions are prohibited to conduct the transactions based on the interest calculations. While for those who live in the area in which do not have yet established Islamic financial institution, it is allowed to conduct the transactions on interest calculations due to an emergency situation (darūrāt/hājāt).
From the explanation of the fatwā above, we can conclude that Islam recognizes to provide the right moral attitude for human action. This attitude then led many adherents to believe that Islam is a total way of life. In this context to the fatwā, the contemporary world of Islam wants to base their socio-economic, cultural, and political life exclusively on Islamic teachings as a moral framework.
Since the fatwā issued by the national government sponsored organization, the typology of this fatwā is a collective fatwā. This fatwā was not released by an individual mufti but by the collective
‗ulamā‟ from MUI. Kaptein states that the important change to the fatwā given was not only by individual muftis, but also to the collective muftis or organizations occurred from the beginning of twentieth century.17 This means that all the conditions to issue a fatwā will be held collectively by many jurist or ‗ulamā‟ not just single ‗ulamā‟.18
17 Nico J. G. Kaptein, ―The Voice of the ‗Ulamā‘: Fatwā and Religious Authority in Indonesia‖, ISEAS Working Paper, Visiting Researcher Series no. 2 (2004), Singapore: Institute of Southeast Asian Studies, 2004, p. 7.
18 Nadirsyah Hosen, ―Nahdlatul ‗Ulamā‘ and Collective Ijtihād‖, New Zealand Journal of Asian Studies 6, (1 Juni, 2004), p. 5.
24
Generally, the method of issuing a fatwā by MUI is similar to Muhammadiyah and NU since the members of MUI consist of many ‗ulamā‟s from such organizations. MUI used the sources from the Qur‗ān and hadīth. They also took the opinion from many ‗ulamā‟s that prohibited ribā. However, the similarity of the method and prime sources can not guarantee the similarity of the result since it depends on the domination of the process in issuing of fatwā in the ijtihād forum of the ‗ulamā‟.19
Furthermore, Nico Kaptein also states that:
―Whether or not the individual or institutional authority as expressed in fatwās is recognized depends on various circumstances. In dealing with the same issue, under different historical and socio-political conditions, muftis might give different, or even contradictory, fatwās.‖20 C. The Political Background in the Emergence of the Fatwā
In Indonesia, Islam was once at an impasse in terms of its political relationship with the state.
The historical background and the debates to the emergence of fatwā MUI on interest was much related with the changing of political situation in Indonesia. Because of this, before describing the debates on the emergence of the fatwā, I will explain first the historical political background to the development of relationship between the state and MUI before and after the fall of President Suharto in 1998.
Founded by the government with the authority to give a fatwā, MUI has played an important role during its emergence. The establishment of MUI had a major purpose to serve as an internal forum consultation to translate the concepts and activities of national or local development for the society. Also, MUI had a duty as a mediator between the government and ‗ulamā‟.21
Throughout the New Order era, the relationship between MUI and government remained close.
It could be indicated from the fatwā issued by the central MUI during the New Order which often considered on the behalf of the state at that time. One of the fatwā which was initially functioned to support the government policy was the fatwā concerning on the question how local MUIs should respond the upcoming session to the People‘s Congress (Majelis Permusyawaratan Rakyat/MPR.
Here, the Congress wished to put the word kepercayaan (belief) to the two decrees; the Broad Outlines of State Policy (Garis-garis Besar Haluan Negara) and the Guidelines for the Internationalization and Implementation of the Pancasila (Pedoman Penghayatan dan Pengamalan Pancasila). The government‘s purpose was to elevate the Javanese‘s status heterodox variants to be equal with the religion. The person who maintained the heterodox belief would be legally protected by the state. In response to the matter, MUI issued a fatwā on ―Facing the Upcoming 1978 General Session of the People‘s Congress‖ (Menghadapi Sidang Umum MPR 1978), but it was stated that MUI only issued a fatwā on religious aspect but not barged in the political problems.22 It is clear that MUI hesitated to give their arguments to this problem since the MUI initially functioned to justify the government policy.
The collapse of the New Order era on May 21, 1998 gave a major change to open up a space for the free opinion of public space. This condition also gave MUI a chance to reflect its role on the New Order era and redefine its role in the future. In the reformasi period, the function of MUI has changed and indicated that MUI is distancing itself from the government and focusing on Muslim aspirations to be the servant of the ummah.23 Whereas after May 1998, the MUI which had previously been identified as government forum to support the policy, it often had an opposition voice and active in the political game. It was in the general elections of 1999 which the MUI was one of Islamic organizations that suggested to Muslims not to vote for the party of Megawati Sukarnoputri, PDI-P, since it was indicated as anti-religious party and tried to emerge the communism and secularism.24 Based on this matter, according to Van Dijk, the changing role of MUI was repositioning itself for the opinions in more radical streams of Indonesian Islam and gave MUI the idea to take the lead on other radical issues which was also expressed on the issue of interest banking.25
19 Ghafur, op.cit., p. 99.
20 Kaptein, op.cit., p. 17.
21 Moch. Nur Ichwan, ―Ulamā‘, State and Politics: Majelis ‗Ulamā‘Indonesia after Suharto‖, Islamic Law and Society 12:1, 2005, p. 48.
22 Cees Van Dijk, ―Religious Authority, Politics and Fatwās in Contemporary Southeast Asia‖, in Islamic Law in Contemporary Indonesia: Ideas and Institutions, edited by R. Michael Feener and Mark. E.
Cammack, Cambridge: Harvard University Press, 2007. p. 47-48.
23 Moch. Nur Ichwan, op.cit., p. 48.
24 Cees Van Dijk, op.cit.,. 52.
25 Ibid., p. 55.
25
Due to the issue of fatwā on bank interest, the difficult discussion on this fatwā illustrates the strain that sometimes exists between the religious advisors and an Islamic organization and also between the members of the fatwā committee and Islamic scholars who sit on the religious advisory boards.26 The strains in this fatwā are illustrated on the debates occurred after the emergence of MUI fatwā on bank interest since it has caused confusion among people.
It was Muhammadiyah‘s response occurred before the issuance of fatwā MUI in 2003. This organization stated its disagreement on the idea of MUI National Sharī„ah Board to issue a fatwā on bank interest. The fatwā stated that bank interest is a part of ribā and categorized as unlawful. Din Syamsuddin, the chairman of Muhammadiyah, said that many Muslims cooperate with the conventional banking and save their money because the number of Islamic banking in Indonesia is not yet broad enough. Therefore, bank interest is allowed in the context of emergency (darūrāt wa ‟l- hājāt). According to Syamsuddin, MUI should consider about the responses and the various positive and negative impact which may arise around the Muslim community. If the fatwā is issued, there will be no more tolerance for the situation of emergency in Indonesia to the practice of bank interest since the level of Islamic banking in Indonesia need to be observed and analyzed more. Syamsuddin who is also the General Secretary of MUI said that not all ‗ulamā‟s in MUI agree with the intention of MUI National Sharī„ah Board to issue such fatwā on bank interest. He also stated that he himself as one of the MUI members who tried to postpone the fatwā for not to be declared.
The reason he gave to reject the publication of the fatwā because the number of Islamic banking branches in Indonesia was still small. However, Din Syamsuddin refused to give a comment on how far the differences of the opinions among ‗ulamā‟s in MUI about the fatwā. He, in advanced, assured that the fatwā would not be issued until the agreement and full understanding among MUI ‗ulamā‟ are reached. Related to Majelis Tarjih Muhammadiyah, Din Syamsuddin stated that Majelis would like to reexamine the status of bank interest based on the sharī„ah principle. The opinion of Majelis Tarjih will be the foundation and guidance for Muhammadiyah in seeking agreement with DSN MUI towards the issuance of fatwā MUI on bank interest.27 Another reaction, the general chairman of Muhammadiyah, Syafi‘i Ma‘arif stated that the subject of interest was still debatable and need to be understood more. It had to be acknowledged that the MUI often issued fatwās subsequently proved to be ineffective.28 Syafi‘i Ma‘arif stated that there is no similar vision among ‗ulamā‟s about bank interest. Islamic banks also emerged its own problem since they are under umbrella of conventional banking. It was too early to issue a fatwā on bank interest and will be a boomerang to its fatwā.
Before the fatwā was issued, it was also stated that Nahdlatul ‗Ulama through the head of Lajnah Bahtsul Masail of Nahdlatul ‗Ulama, Masdar F. Masudi told his disagreement towards the MUI‘s aim to issue a fatwā on bank interest. According to Masudi, bank interest is not always identified with ribā, therefore it cannot be declared in general that all bank interest is harām. He also stated that bank interest cannot be balanced with ribā if the interest is part of the capital. Bank interest can be categorized with ribā if the amount of interest is exceeds the amount of inflation and the decline of currency.29 Finally, K.H. Hasyim Muzadi, the colleagues of Masdar F. Masudi, emphasized his organization had not taken the decision on the prohibition of the interest or determined whether receiving interest was lawful or unlawful. 30 Under these circumstances Muslims could decide to follow which opinion among those although the fatwā was relatively a new term for Indonesian Muslim in general since they were still looking the right opinion for the fatwā or to whom they should obey.
Only few days after declaring the fatwā, the chairman of MUI Sahal Mahfudh and the chairman of Muhammadiyah, Din Syamsuddin, explained that the matters had not final yet. It was stated that the Executive Committee had not approved yet with the decision taken by the MUI.31 Ma‘ruf Amin, the deputy chairman of the Nahdlatul ‗Ulamā‘, explained earlier that the MUI was considering removing the emergence clause due to increasing number of Islamic bank branches in Indonesia.32 However,
26 Ibid., p. 58-59.
27 Amal Ihsan, Muhammadiyah Tidak Setuju Fatwā Haram Bunga Bank, Tempo Interaktif, www.tempointeraktif.com, 09 November 2003.
28 Koran Tempo, 18 December 2003.
29 Muhammad Ghafur W., op.cit., p. 81.
30 Van Dijk, op.cit., p. 57.
31 Ibid., p. 56.
32 Tempointeraktif.com, 9 November 2003.
26
Ma‘ruf Amin backed tracked and belittled to the authority of the decision. He dissolved the ruling as
―just a fatwā‖. He stated that the fatwā was unbinding and it depends on the individual Muslims to choose whether to use Islamic banks or conventional banks. The reason why Ma‘ruf Amin changed his mind was probably the Nahdlatul ‗Ulama and Muhammadiyah disagreed with the fatwā on bank interest. Both organizations owned Bank Nusumma and the Bank Persyarikatan which charged interest. 33
It is clearly explained that the changing role of MUI affected by the different political situation indicates that religious authority and political power have been bound together and plays important role within the state. Furthermore, the development of fatwā on bank interest in Indonesia shows the role of MUI is formed by a complex history of the ideas and exchanges related to the understanding of the issue of ribā. The political and organizational interests also give an influence to the response of NU and Muhammadiyah toward the issuing of fatwā on bank interest.