الحيل والمخارج الفقهية في المعاملات المصرفية المعاصرة : دراسة تحليلية تطبيقية لتجربة "بنك إسلام ماليزيا"

Abstract

The Malaysian banking system has been monopolized by the conventional banks for decades with their core business based on usury. In ١٩٨٣, the first Islamic Bank named Bank Islam Malaysia Berhad (BIMB) was established, as to achieve its most important goal to avoid illegal transactions in banking products. In order to achieve this objective, BIMB offers its products based on either makharij fiqhiyyah (jurisprudential devices) or hiyal fiqhiyyah (jurisprudential tricks). Therefore, this study is important to survey the jurists’ opinions on the legality of makharij fiqhiyyah and hiyal fiqhiyyah and how does BIMB use both of them. The objectives of this study are: firstly, to formulate the definitions of makharij fiqhiyyah and hiyal fiqhiyyah from the jurists’ perspectives and explain their attitudes on the matters concerned. Secondly, to draw up legal principles to use makharij fiqhiyyah and hiyal fiqhiyyah as both are ways to achieve the legal objectives. Thirdly, to study the usage of makharij fiqhiyyah and hiyal fiqhiyyah in BIMB products. Fourthly, to suggest legal alternatives to the hiyal fiqhiyyah that are used in the BIMB products. And finally, to analyze the standpoints of the members of BIMB Shariah Supervisory Council on the usage of makharij fiqhiyyah and hiyal fiqhiyyah in BIMB products. This study has used historical, inductive, analytical, comparative, and critical methods to analyze the jurists' opinions on makharij fiqhiyyah and hiyal fiqhiyyah. Besides, this study also analyzes the BIMB products and interviews the Shariah Supervisory Council as to know their views on makharij fiqhiyyah and hiyal fiqhiyyah. This study shows that there is an agreement among jurists on the legality of makharij fiqhiyyah, but on the other hand, there is a disagreement among them on the legality of hiyal fiqhiyyah. The researcher gives preference to the opinion which states that the hiyal fiqhiyyah is legal on the judgment basis, but is illegal on the basis of religious intention. As to make hiyal fiqhiyyah legal, this study allocates legal principles to their usage. On the practical aspect, this study shows that more than ٩٠.٨% from the BIMB financing transactions in ٢٠٠٥ and ٩٢.١٥% in ٢٠٠٤ are based on hiyal fiqhiyyah named bay al inah. This result concurs with the standpoint of BIMB Shariah Supervisory Council as they endorsed hiyal fiqhiyyah such as bay al-inah as legal in Islam.