ForeX / IndeX Saham dalam perspektif Islam
Sebagian umat Islam meragukan kehalalan praktik perdagangan
berjangka. Bagaimana menurut padangan para pakar Islam?
Jangan engkau menjual sesuatu
yang tidak ada padamu," sabda Nabi Muhammad
SAW, dalam sebuah hadits riwayat Abu Hurairah.
Oleh sementara fuqaha (ahli fiqih Islam), hadits tersebut
ditafsirkan secara saklek. Pokoknya, setiap praktik jual beli
yang tidak ada barangnya pada waktu akad, haram. Penafsiran
secara demikian itu, tak pelak lagi, membuat fiqih Islam sulit
untuk memenuhi tuntutan jaman yang terus berkembang dengan
perubahan-perubahannya.
Karena itu, sejumlah ulama klasik yang terkenal dengan pemikiran
cemerlangnya, menentang cara penafsiran yang terkesan sempit
tersebut. Misalnya, Ibn al-Qayyim. Ulama bermazhab Hambali
ini berpendapat, bahwa tidak benar jual-beli barang yang tidak
ada dilarang. Baik dalam Al Quran,sunnah maupun fatwa
para sahabat, larangan itu tidak ada.
Dalam Sunnah Nabi, hanya terdapat larangan menjual barang
yang belum ada, sebagaimana larangan beberapa barang yang
sudah ada pada waktu akad. Causa legis atau ilat larangan
tersebut bukan ada atau tidak adanya barang, melainkan garar,
ujar Dr. Syamsul Anwar, MA dari IAIN SUKA Yogyakarta menjelaskan
pendapat Ibn al-Qayyim. Garar adalah ketidakpastian tentang
apakah barang yang diperjual-belikan itu dapat diserahkan
atau tidak. Misalnya, seseorang menjual unta yang hilang.
Atau menjual barang milik orang lain, padahal tidak diberi
kewenangan oleh yang bersangkutan.
Jadi, meskipun pada waktu akad barangnya tidak ada, namun
ada kepastian diadakan pada waktu diperlukan sehingga bisa
diserahkan kepada pembeli, maka jual beli tersebut sah. Sebaliknya,
kendati barangnya sudah ada tapi - karena satu dan lain hal
tidak mungkin diserahkan kepada pembeli, maka jual
beli itu tidak sah.
Perdagangan berjangka, jelas, bukan garar. Sebab, dalam kontrak
berjangkanya, jenis komoditi yang dijual-belikan sudah ditentukan.
Begitu juga dengan jumlah, mutu, tempat dan waktu penyerahannya.
Semuanya berjalan di atas rel aturan resmi yang ketat, sebagai
antisipasi terjadinya praktek penyimpangan berupa penipuan
satu hal yang sebetulnya bisa juga terjadi pada praktik
jua-beli konvensional.
Dalam perspektif hukum Islam, Perdagangan Berjangka Komoditi
(PBK) (forex adalah bagian dari PBK) dapat dimasukkan ke dalam
kategori almasail almuashirah atau masalah-masalah
hukum Islam kontemporer. Karena itu, status hukumnya dapat
dikategorikan kepada masalah ijtihadiyyah. Klasifikasi ijtihadiyyah
masuk ke dalam wilayah fi ma la nasha fih, yakni masalah hukum
yang tidak mempunyai referensi nash hukum yang pasti.
Dalam kategori masalah hukum al-Sahrastani, ia termasuk ke
dalam paradigma al-nushush qad intahat wa al-waqaI la
tatanahi. Artinya, nash hukum dalam bentuk Al-Quran dan Sunnah
sudah selesai; tidak lagi ada tambahan. Dengan demikian, kasus-kasus
hukum yang baru muncul mesti diberikan kepastian hukumnya
melalui ijtihad.
Dalam kasus hukum PBK, ijtihad dapat merujuk kepada teori
perubahan hukum yang diperkenalkan oleh Ibn Qoyyim al-Jauziyyah.
Ia menjelaskan, fatwa hukum dapat berubah karena beberapa
variabel perubahnya, yakni: waktu, tempat, niat, tujuan dan
manfaat. Teori perubahan hukum ini diturunkan dari paradigma
ilmu hukum dari gurunya Ibn Taimiyyah, yang menyatakan bahwa
a-haqiqah fi al-ayan la fi al-adzhan. Artinya, kebenaran
hukum itu dijumpai dalam kenyataan empirik; bukan dalam alam
pemikiran atau alam idea.
Paradigma ini diturunkan dari prinsip hukum Islam tentang
keadilan yang dalam Al Quran digunakan istilah al-mizan, a-qisth,
al-wasth, dan al-adl.
Dalam penerapannya, secara khusus masalah PBK dapat dimasukkan
ke dalam bidang kajian fiqh al-siyasah maliyyah, yakni politik
hukum kebendaan. Dengan kata lain, PBK termasuk kajian hukum
Islam dalam pengertian bagaimana hukum Islam diterapkan dalam
masalah kepemilikan atas harta benda, melalui perdagangan
berjangka komoditi dalam era globalisasi dan perdagangan bebas.
Realisasi yang paling mungkin dalam rangka melindungi pelaku
dan pihak-pihak yang terlibat dalam perdagangan berjangka
komoditi dalam ruang dan waktu serta pertimbangan tujuan dan
manfaatnya dewasa ini, sejalan dengan semangat dan bunyi UU
No. 32/1977 tentang PBK.
Karena teori perubahan hukum seperti dijelaskan di atas,
dapat menunjukkan elastisitas hukum Islam dalam kelembagaan
dan praktek perekonomian, maka PBK dalam sistem hukum Islam
dapat dianalogikan dengan bay al-salamajl biajil.
Bay al-salam dapat diartikan sebagai berikut. Al-salam
atau al-salaf adalah bay ajl biajil, yakni memperjualbelikan
sesuatu yang dengan ketentuan sifat-sifatnya yang terjamin
kebenarannya. Di dalam transaksi demikian, penyerahan ras
al-mal dalam bentuk uang sebagai nilai tukar didahulukan daripada
penyerahan komoditi yang dimaksud dalam transaksi itu. Ulama
Syafiiyah dan Hanabilah mendefinisikannya dengan: Akad
atas komoditas jual beli yang diberi sifat terjamin yang ditangguhkan
(berjangka) dengan harga jual yang ditetapkan di dalam bursa
akad.
Keabsahan transaksi jual beli berjangka, ditentukan oleh terpenuhinya
rukun dan syarat sebagai berikut:
a) Rukun sebagai unsur-unsur utama
yang harus ada dalam suatu peristiwa transaksi Unsur-unsur
utama di dalam bay al-salam adalah:
- Pihak-pihak pelaku transaksi (aqid) yang
disebut dengan istilah muslim atau muslim ilaih.
- Objek transaksi (maqud alaih), yaitu barang-barang
komoditi berjangka dan harga tukar (ras al-mal al-salam
dan al-muslim fih).
- Kalimat transaksi (Sighat aqad), yaitu ijab
dan kabul. Yang perlu diperhatikan dari unsur-unsur tersebut,
adalah bahwa ijab dan qabul dinyatakan dalam bahasa dan
kalimat yang jelas menunjukkan transaksi berjangka. Karena
itu, ulama Syafiiyah menekankan penggunaan istilah
al-salam atau al-salaf di dalam kalimat-kalimat transaksi
itu, dengan alasan bahwa aqd al-salam adalah bay
al-madum dengan sifat dan cara berbeda dari akad
jual dan beli (buy).
b) Syarat-syarat
- Persyaratan menyangkut objek transaksi, adalah: bahwa
objek transaksi harus memenuhi kejelasan mengenai: jenisnya
(an yakun fi jinsin malumin), sifatnya, ukuran
(kadar), jangka penyerahan, harga tukar, tempat penyerahan.
- Persyaratan yang harus dipenuhi oleh harga tukar (al-tsaman),
adalah, Pertama, kejelasan jenis alat tukar, yaitu dirham,
dinar, rupiah atau dolar dsb atau barang-barang yang dapat
ditimbang, disukat, dsb. Kedua, kejelasan jenis alat tukar
apakah rupiah, dolar Amerika, dolar Singapura, dst. Apakah
timbangan yang disepakati dalam bentuk kilogram, pond, dst.
- Kejelasan tentang kualitas objek transaksi, apakah kualitas
istimewa, baik sedang atau buruk. Syarat-syarat di atas
ditetapkan dengan maksud menghilangkan jahalah fi al-aqd
atau alasan ketidaktahuan kondisi-kondisi barang pada saat
transaksi. Sebab hal ini akan mengakibatkan terjadinya perselisihan
di antara pelaku transaksi, yang akan merusak nilai transaksi.
- Kejelasan jumlah harga tukar. Penjelasan singkat di atas
nampaknya telah dapat memberikan kejelasan kebolehan PBK.
Kalaupun dalam pelaksanaannya masih ada pihak-pihak yang
merasa dirugikan dengan peraturan perundang-undangan yang
ada, maka dapatlah digunakan kaidah hukum atau legal maxim
yang berbunyi: ma la yudrak kulluh la yutrak kulluh.
Apa yang tidak dapat dilaksanakan semuanya, maka tidak perlu
ditinggalkan keseluruhannya.
Dengan demikian, hukum dan pelaksanaan PBK sampai batas-batas
tertentu boleh dinyatakan dapat diterima atau setidak-tidaknya
sesuai dengan semangat dan jiwa norma hukum Islam, dengan
menganalogikan kepada bay al-salam.
(Tulisan di atas dihimpun dari berbagai sumber)
Forex atau Bursa Valuta Asing (Valas)
ini BUKAN Judi, karena perdagangan Forex adalah sama
dengan perdagangan pada umumnya dan hanya berbeda di obyeknya
saja (di Forex obyeknya adalah mata uang, sedangkan di perdagangan
umum obyeknya adalah barang atau jasa), disamping itu pergerakan
harga mata uang dunia tersebut juga dapat dianalisa melalui
teknikal trend dan fundamental.
ISLAMIC FOREX TRADING
By
Dr Mohammed Obaidullah
1. The Basic Exchange Contracts
There is a general consensus among Islamic jurists on the
view that currencies of different countries can be exchanged
on a spot basis at a rate different from unity, since currencies
of different countries are distinct entities with different
values or intrinsic worth, and purchasing power. There also
seems to be a general agreement among a majority of scholars
on the view that currency exchange on a forward basis is not
permissible, that is, when the rights and obligations of both
parties relate to a future date. However, there is considerable
difference of opinion among jurists when the rights of either
one of the parties, which is same as obligation of the counterparty,
is deferred to a future date.
To elaborate, let us consider the example of two individuals
A and B who belong to two different countries, India and US
respectively. A intends to sell Indian rupees and buy U.S
dollars. The converse is true for B. The rupee-dollar exchange
rate agreed upon is 1:20 and the transaction involves buying
and selling of $50. The first situation is that A makes a
spot payment of Rs1000 to B and accepts payment of $50 from
B. The transaction is settled on a spot basis from both ends.
Such transactions are valid and Islamically permissible. There
are no two opinions about the same. The second possibility
is that settlement of the transaction from both ends is deferred
to a future date, say after six months from now. This implies
that both A and B would make and accept payment of Rs1000
or $50, as the case may be, after six months. The predominant
view is that such a contract is not Islamically permissible.
A minority view considers it permissible. The third scenario
is that the transaction is partly settled from one end only.
For example, A makes a payment of Rs1000 now to B in lieu
of a promise by B to pay $50 to him after six months. Alternatively,
A accepts $50 now from B and promises to pay Rs1000 to him
after six months. There are diametrically opposite views on
the permissibility of such contracts which amount to bai-salam
in currencies. The purpose of this paper is to present a comprehensive
analysis of various arguments in support and against the permissibility
of these basic contracts involving currencies. The first form
of contracting involving exchange of countervalues on a spot
basis is beyond any kind of controversy. Permissibility or
otherwise of the second type of contract in which delivery
of one of the countervalues is deferred to a future date,
is generally discussed in the framework of riba prohibition.
Accordingly we discuss this contract in detail in section
2 dealing with the issue of prohibition of riba. Permissibility
of the third form of contract in which delivery of both the
countervalues is deferred, is generally discussed within the
framework of reducing risk and uncertainty or gharar involved
in such contracts. This, therefore, is the central theme of
section 3 which deals with the issue of gharar. Section 4
attempts a holistic view of the Sharia relates issues as also
the economic significance of the basic forms of contracting
in the currency market.
2. The Issue of Riba Prohibition
The divergence of views1 on the permissibility or otherwise
of exchange contracts in currencies can be traced primarily
to the issue of riba prohibition.
The need to eliminate riba in all forms of exchange contracts
is of utmost importance. Riba in its Sharia context is generally
defined2 as an unlawful gain derived from the quantitative
inequality of the countervalues in any transaction purporting
to effect the exchange of two or more species (anwa), which
belong to the same genus (jins) and are governed by the same
efficient cause (illa). Riba is generally classified into
riba al-fadl (excess) and riba al-nasia (deferment) which
denote an unlawful advantage by way of excess or deferment
respectively. Prohibition of the former is achieved by a stipulation
that the rate of exchange between the objects is unity and
no gain is permissible to either party. The latter kind of
riba is prohibited by disallowing deferred settlement and
ensuring that the transaction is settled on the spot by both
the parties. Another form of riba is called riba al-jahiliyya
or pre-Islamic riba which surfaces when the lender asks the
borrower on the maturity date if the latter would settle the
debt or increase the same. Increase is accompanied by charging
interest on the amount initially borrowed.
The prohibition of riba in the exchange of currencies belonging
to different countries requires a process of analogy (qiyas).
And in any such exercise involving analogy (qiyas), efficient
cause (illa) plays an extremely important role. It is a common
efficient cause (illa), which connects the object of the analogy
with its subject, in the exercise of analogical reasoning.
The appropriate efficient cause (illa) in case of exchange
contracts has been variously defined by the major schools
of Fiqh. This difference is reflected in the analogous reasoning
for paper currencies belonging to different countries.
A question of considerable significance in the process of
analogous reasoning relates to the comparison between paper
currencies with gold and silver. In the early days of Islam,
gold and silver performed all the functions of money (thaman).
Currencies were made of gold and silver with a known intrinsic
value (quantum of gold or silver contained in them). Such
currencies are described as thaman haqiqi, or naqdain in Fiqh
literature. These were universally acceptable as principal
means of exchange, accounting for a large chunk of transactions.
Many other commodities, such as, various inferior metals also
served as means of exchange, but with limited acceptability.
These are described as fals in Fiqh literature. These are
also known as thaman istalahi because of the fact that their
acceptability stems not from their intrinsic worth, but due
to the status accorded by the society during a particular
period of time. The above two forms of currencies have been
treated very differently by early Islamic jurists from the
standpoint of permissibility of contracts involving them.
The issue that needs to be resolved is whether the present
age paper currencies fall under the former category or the
latter. One view is that these should be treated at par with
thaman haqiqi or gold and silver, since these serve as the
principal means of exchange and unit of account like the latter.
Hence, by analogous reasoning, all the Sharia-related norms
and injunctions applicable to thaman haqiqi should also be
applicable to paper currency. Exchange of thaman haqiqi is
known as bai-sarf, and hence, the transactions in paper currencies
should be governed by the Sharia rules relevant for bai-sarf.
The contrary view asserts that paper currencies should be
treated in a manner similar to fals or thaman istalahi because
of the fact that their face value is different from their
intrinsic worth. Their acceptability stems from their legal
status within the domestic country or global economic importance
(as in case of US dollars, for instance).
2.1. A Synthesis of Alternative Views
2.1.1. Analogical Reasoning (Qiyas) for Riba Prohibition
The prohibition of riba is based on the tradition that the
holy prophet (peace be upon him) said, "Sell gold for
gold, silver for silver, wheat for wheat, barley for barley,
date for date, salt for salt, in same quantities on the spot;
and when the commodities are different, sell as it suits you,
but on the spot." Thus, the prohibition of riba applies
primarily to the two precious metals (gold and silver) and
four other commodities (wheat, barley, dates and salt). It
also applies, by analogy (qiyas) to all species which are
governed by the same efficient cause (illa) or which belong
to any one of the genera of the six objects cited in the tradition.
However, there is no general agreement among the various schools
of Fiqh and even scholars belonging to the same school on
the definition and identification of efficient cause (illa)
of riba.
For the Hanafis, efficient cause (illa) of riba has two dimensions:
the exchanged articles belong to the same genus (jins); these
possess weight (wazan) or measurability (kiliyya). If in a
given exchange, both the elements of efficient cause (illa)
are present, that is, the exchanged countervalues belong to
the same genus (jins) and are all weighable or all measurable,
then no gain is permissible (the exchange rate must be equal
to unity) and the exchange must be on a spot basis. In case
of gold and silver, the two elements of efficient cause (illa)
are: unity of genus (jins) and weighability. This is also
the Hanbali view according to one version3. (A different version
is similar to the Shafii and Maliki view, as discussed below.)
Thus, when gold is exchanged for gold, or silver is exchanged
for silver, only spot transactions without any gain are permissible.
It is also possible that in a given exchange, one of the two
elements of efficient cause (illa) is present and the other
is absent. For example, if the exchanged articles are all
weighable or measurable but belong to different genus (jins)
or, if the exchanged articles belong to same genus (jins)
but neither is weighable nor measurable, then exchange with
gain (at a rate different from unity) is permissible, but
the exchange must be on a spot basis. Thus, when gold is exchanged
for silver, the rate can be different from unity but no deferred
settlement is permissible. If none of the two elements of
efficient cause (illa) of riba are present in a given exchange,
then none of the injunctions for riba prohibition apply. Exchange
can take place with or without gain and both on a spot or
deferred basis.
Considering the case of exchange involving paper currencies
belonging to different countries, riba prohibition would require
a search for efficient cause (illa). Currencies belonging
to different countries are clearly distinct entities; these
are legal tender within specific geographical boundaries with
different intrinsic worth or purchasing power. Hence, a large
majority of scholars perhaps rightly assert that there is
no unity of genus (jins). Additionally, these are neither
weighable nor measurable. This leads to a direct conclusion
that none of the two elements of efficient cause (illa) of
riba exist in such exchange. Hence, the exchange can take
place free from any injunction regarding the rate of exchange
and the manner of settlement. The logic underlying this position
is not difficult to comprehend. The intrinsic worth of paper
currencies belonging to different countries differ as these
have different purchasing power. Additionally, the intrinsic
value or worth of paper currencies cannot be identified or
assessed unlike gold and silver which can be weighed. Hence,
neither the presence of riba al-fadl (by excess), nor riba
al-nasia (by deferment) can be established.
The Shafii school of Fiqh considers the efficient cause (illa)
in case of gold and silver to be their property of being currency
(thamaniyya) or the medium of exchange, unit of account and
store of value . This is also the Maliki view. According to
one version of this view, even if paper or leather is made
the medium of exchange and is given the status of currency,
then all the rules pertaining to naqdain, or gold and silver
apply to them. Thus, according to this version, exchange involving
currencies of different countries at a rate different from
unity is permissible, but must be settled on a spot basis.
Another version of the above two schools of thought is that
the above cited efficient cause (illa) of being currency (thamaniyya)
is specific to gold and silver, and cannot be generalized.
That is, any other object, if used as a medium of exchange,
cannot be included in their category. Hence, according to
this version, the Sharia injunctions for riba prohibition
are not applicable to paper currencies. Currencies belonging
to different countries can be exchanged with or without gain
and both on a spot or deferred basis.
Proponents of the earlier version cite the case of exchange
of paper currencies belonging to the same country in defense
of their version. The consensus opinion of jurists in this
case is that such exchange must be without any gain or at
a rate equal to unity and must be settled on a spot basis.
What is the rationale underlying the above decision? If one
considers the Hanafi and the first version of Hanbali position
then, in this case, only one dimension of the efficient cause
(illa) is present, that is, they belong to the same genus
(jins). But paper currencies are neither weighable nor measurable.
Hence, Hanafi law would apparently permit exchange of different
quantities of the same currency on a spot basis. Similarly
if the efficient cause of being currency (thamaniyya) is specific
only to gold and silver, then Shafii and Maliki law would
also permit the same. Needless to say, this amounts to permitting
riba-based borrowing and lending. This shows that, it is the
first version of the Shafii and Maliki thought which underlies
the consensus decision of prohibition of gain and deferred
settlement in case of exchange of currencies belonging to
the same country. According to the proponents, extending this
logic to exchange of currencies of different countries would
imply that exchange with gain or at a rate different from
unity is permissible (since there no unity of jins), but settlement
must be on a spot basis.
2.1.2 Comparison between Currency Exchange and Bai-Sarf
Bai-sarf is defined in Fiqh literature as an exchange involving
thaman haqiqi, defined as gold and silver, which served as
the principal medium of exchange for almost all major transactions.
Proponents of the view that any exchange of currencies of
different countries is same as bai-sarf argue that in the
present age paper currencies have effectively and completely
replaced gold and silver as the medium of exchange. Hence,
by analogy, exchange involving such currencies should be governed
by the same Sharia rules and injunctions as bai-sarf. It is
also argued that if deferred settlement by either parties
to the contract is permitted, this would open the possibilities
of riba-al nasia.
Opponents of categorization of currency exchange with bai-sarf
however point out that the exchange of all forms of currency
(thaman) cannot be termed as bai-sarf. According to this view
bai-sarf implies exchange of currencies made of gold and silver
(thaman haqiqi or naqdain) alone and not of money pronounced
as such by the state authorities (thaman istalahi). The present
age currencies are examples of the latter kind. These scholars
find support in those writings which assert that if the commodities
of exchange are not gold or silver, (even if one of these
is gold or silver) then, the exchange cannot be termed as
bai-sarf. Nor would the stipulations regarding bai-sarf be
applicable to such exchanges. According to Imam Sarakhsi4
"when an individual purchases fals or coins made out
of inferior metals, such as, copper (thaman istalahi) for
dirhams (thaman haqiqi) and makes a spot payment of the latter,
but the seller does not have fals at that moment, then such
exchange is permissible........ taking possession of commodities
exchanged by both parties is not a precondition" (while
in case of bai-sarf, it is.) A number of similar references
exist which indicate that jurists do not classify an exchange
of fals (thaman istalahi) for another fals (thaman istalahi)
or gold or silver (thaman haqiqi), as bai-sarf.
Hence, the exchanges of currencies of two different countries
which can only qualify as thaman istalahi can not be categorized
as bai-sarf. Nor can the constraint regarding spot settlement
be imposed on such transactions. It should be noted here that
the definition of bai-sarf is provided Fiqh literature and
there is no mention of the same in the holy traditions. The
traditions mention about riba, and the sale and purchase of
gold and silver (naqdain) which may be a major source of riba,
is described as bai-sarf by the Islamic jurists. It should
also be noted that in Fiqh literature, bai-sarf implies exchange
of gold or silver only; whether these are currently being
used as medium of exchange or not. Exchange involving dinars
and gold ornaments, both quality as bai-sarf. Various jurists
have sought to clarify this point and have defined sarf as
that exchange in which both the commodities exchanged are
in the nature of thaman, not necessarily thaman themselves.
Hence, even when one of the commodities is processed gold
(say, ornaments), such exchange is called bai-sarf.
Proponents of the view that currency exchange should be treated
in a manner similar to bai-sarf also derive support from writings
of eminent Islamic jurists. According to Imam Ibn Taimiya
"anything that performs the functions of medium of exchange,
unit of account, and store of value is called thaman, (not
necessarily limited to gold & silver). Similar references
are available in the writings of Imam Ghazzali5 As far as
the views of Imam Sarakhshi is concerned regarding exchange
involving fals, according to them, some additional points
need to be taken note of. In the early days of Islam, dinars
and dirhams made of gold and silver were mostly used as medium
of exchange in all major transactions. Only the minor ones
were settled with fals. In other words, fals did not possess
the characteristics of money or thamaniyya in full and was
hardly used as store of value or unit of account and was more
in the nature of commodity. Hence there was no restriction
on purchase of the same for gold and silver on a deferred
basis. The present day currencies have all the features of
thaman and are meant to be thaman only. The exchange involving
currencies of different countries is same as bai-sarf with
difference of jins and hence, deferred settlement would lead
to riba al-nasia.
Dr Mohamed Nejatullah Siddiqui illustrates this possibility
with an example6. He writes "In a given moment in time
when the market rate of exchange between dollar and rupee
is 1:20, if an individual purchases $50 at the rate of 1:22
(settlement of his obligation in rupees deferred to a future
date), then it is highly probable that he is , in fact, borrowing
Rs. 1000 now in lieu of a promise to repay Rs. 1100 on a specified
later date. (Since, he can obtain Rs 1000 now, exchanging
the $50 purchased on credit at spot rate)" Thus, sarf
can be converted into interest-based borrowing & lending.
2.1.3 Defining Thamaniyya is the Key ?
It appears from the above synthesis of alternative views
that the key issue seems to be a correct definition of thamaniyya.
For instance, a fundamental question that leads to divergent
positions on permissibility relates to whether thamaniyya
is specific to gold and silver, or can be associated with
anything that performs the functions of money. We raise some
issues below which may be taken into account in any exercise
in reconsideration of alternative positions.
It should be appreciated that thamaniyya may not be absolute
and may vary in degrees. It is true that paper currencies
have completely replaced gold and silver as medium of exchange,
unit of account and store of value. In this sense, paper currencies
can be said to possess thamaniyya. However, this is true for
domestic currencies only and may not be true for foreign currencies.
In other words, Indian rupees possess thamaniyya within the
geographical boundaries of India only, and do not have any
acceptability in US. These cannot be said to possess thamaniyya
in US unless a US citizen can use Indian rupees as a medium
of exchange, or unit of account, or store of value. In most
cases such a possibility is remote. This possibility is also
a function of the exchange rate mechanism in place, such as,
convertibility of Indian rupees into US dollars, and whether
a fixed or floating exchange rate system is in place. For
example, assuming free convertibility of Indian rupees into
US dollars and vice versa, and a fixed exchange rate system
in which the rupee-dollar exchange rate is not expected to
increase or decrease in the foreseeable future, thamaniyya
of rupee in US is considerably improved. The example cited
by Dr Nejatullah Siddiqui also appears quite robust under
the circumstances. Permission to exchange rupees for dollars
on a deferred basis (from one end, of course) at a rate different
from the spot rate (official rate which is likely to remain
fixed till the date of settlement) would be a clear case of
interest-based borrowing and lending. However, if the assumption
of fixed exchange rate is relaxed and the present system of
fluctuating and volatile exchange rates is assumed to be the
case, then it can be shown that the case of riba al-nasia
breaks down. We rewrite his example: "In a given moment
in time when the market rate of exchange between dollar and
rupee is 1:20, if an individual purchases $50 at the rate
of 1:22 (settlement of his obligation in rupees deferred to
a future date), then it is highly probable that he is , in
fact, borrowing Rs. 1000 now in lieu of a promise to repay
Rs. 1100 on a specified later date. (Since, he can obtain
Rs 1000 now, exchanging the $50 purchased on credit at spot
rate)" This would be so, only if the currency risk is
non-existent (exchange rate remains at 1:20), or is borne
by the seller of dollars (buyer repays in rupees and not in
dollars). If the former is true, then the seller of the dollars
(lender) receives a predetermined return of ten percent when
he converts Rs1100 received on the maturity date into $55
(at an exchange rate of 1:20). However, if the latter is true,
then the return to the seller (or the lender) is not predetermined.
It need not even be positive. For example, if the rupee-dollar
exchange rate increases to 1:25, then the seller of dollar
would receive only $44 (Rs 1100 converted into dollars) for
his investment of $50.
Here two points are worth noting. First, when one assumes
a fixed exchange rate regime, the distinction between currencies
of different countries gets diluted. The situation becomes
similar to exchanging pounds with sterlings (currencies belonging
to the same country) at a fixed rate. Second, when one assumes
a volatile exchange rate system, then just as one can visualize
lending through the foreign currency market (mechanism suggested
in the above example), one can also visualize lending through
any other organized market (such as, for commodities or stocks.)
If one replaces dollars for stocks in the above example, it
would read as: "In a given moment in time when the market
price of stock X is Rs 20, if an individual purchases 50 stocks
at the rate of Rs 22 (settlement of his obligation in rupees
deferred to a future date), then it is highly probable that
he is , in fact, borrowing Rs. 1000 now in lieu of a promise
to repay Rs. 1100 on a specified later date. (Since, he can
obtain Rs 1000 now, exchanging the 50 stocks purchased on
credit at current price)" In this case too as in the
earlier example, returns to the seller of stocks may be negative
if stock price rises to Rs 25 on the settlement date. Hence,
just as returns in the stock market or commodity market are
Islamically acceptable because of the price risk, so are returns
in the currency market because of fluctuations in the prices
of currencies.
A unique feature of thaman haqiqi or gold and silver is that
the intrinsic worth of the currency is equal to its face value.
Thus, the question of different geographical boundaries within
which a given currency, such as, dinar or dirham circulates,
is completely irrelevant. Gold is gold whether in country
A or country B. Thus, when currency of country A made of gold
is exchanged for currency of country B, also made of gold,
then any deviation of the exchange rate from unity or deferment
of settlement by either party cannot be permitted as it would
clearly involve riba al-fadl and also riba al-nasia. However,
when paper currencies of country A is exchanged for paper
currency of country B, the case may be entirely different.
The price risk (exchange rate risk), if positive, would eliminate
any possibility of riba al-nasia in the exchange with deferred
settlement. However, if price risk (exchange rate risk) is
zero, then such exchange could be a source of riba al-nasia
if deferred settlement is permitted7.
Another point that merits serious consideration is the possibility
that certain currencies may possess thamaniyya, that is, used
as a medium of exchange, unit of account, or store of value
globally, within the domestic as well as foreign countries.
For instance, US dollar is legal tender within US; it is also
acceptable as a medium of exchange or unit of account for
a large volume of transactions across the globe. Thus, this
specific currency may be said to possesses thamaniyya globally,
in which case, jurists may impose the relevant injunctions
on exchanges involving this specific currency to prevent riba
al-nasia. The fact is that when a currency possesses thamaniyya
globally, then economic units using this global currency as
the medium of exchange, unit of account or store of value
may not be concerned about risk arising from volatility of
inter-country exchange rates. At the same time, it should
be recognized that a large majority of currencies do not perform
the functions of money except within their national boundaries
where these are legal tender.
Riba and risk cannot coexist in the same contract. The former
connotes a possibility of returns with zero risk and cannot
be earned through a market with positive price risk. As has
been discussed above, the possibility of riba al-fadl or riba
al-nasia may arise in exchange when gold or silver function
as thaman; or when the exchange involves paper currencies
belonging to the same country; or when the exchange involves
currencies of different countries following a fixed exchange
rate system. The last possibility is perhaps unIslamic8 since
price or exchange rate of currencies should be allowed to
fluctuate freely in line with changes in demand and supply
and also because prices should reflect the intrinsic worth
or purchasing power of currencies. The foreign currency markets
of today are characterised by volatile exchange rates. The
gains or losses made on any transaction in currencies of different
countries, are justified by the risk borne by the parties
to the contract.
2.1.4. Possibility of Riba with Futures and Forwards
So far, we have discussed views on the permissibility of
bai salam in currencies, that is, when the obligation of only
one of the parties to the exchange is deferred. What are the
views of scholars on deferment of obligations of both parties
? Typical example of such contracts are forwards and futures9.
According to a large majority of scholars, this is not permissible
on various grounds, the most important being the element of
risk and uncertainty (gharar) and the possibility of speculation
of a kind which is not permissible. This is discussed in section
3. However, another ground for rejecting such contracts may
be riba prohibition. In the preceding paragraph we have discussed
that bai salam in currencies with fluctuating exchange rates
can not be used to earn riba because of the presence of currency
risk. It is possible to demonstrate that currency risk can
be hedged or reduced to zero with another forward contract
transacted simultaneously. And once risk is eliminated, the
gain clearly would be riba.
We modify and rewrite the same example: "In a given
moment in time when the market rate of exchange between dollar
and rupee is 1:20, an individual purchases $50 at the rate
of 1:22 (settlement of his obligation in rupees deferred to
a future date), and the seller of dollars also hedges his
position by entering into a forward contract to sell Rs1100
to be received on the future date at a rate of 1:20, then
it is highly probable that he is , in fact, borrowing Rs.
1000 now in lieu of a promise to repay Rs. 1100 on a specified
later date. (Since, he can obtain Rs 1000 now, exchanging
the 50 dollars purchased on credit at spot rate)" The
seller of the dollars (lender) receives a predetermined return
of ten percent when he converts Rs1100 received on the maturity
date into 55 dollars (at an exchange rate of 1:20) for his
investment of 50 dollars irrespective of the market rate of
exchange prevailing on the date of maturity.
Another simple possible way to earn riba may even involve
a spot transaction and a simultaneous forward transaction.
For example, the individual in the above example purchases
$50 on a spot basis at the rate of 1:20 and simultaneously
enters into a forward contract with the same party to sell
$50 at the rate of 1:21 after one month. In effect this implies
that he is lending Rs1000 now to the seller of dollars for
one month and earns an interest of Rs50 (he receives Rs1050
after one month. This is a typical buy-back or repo (repurchase)
transaction so common in conventional banking.10
3. The Issue of Freedom from Gharar
3.1 Defining Gharar
Gharar, unlike riba, does not have a consensus definition.
In broad terms, it connotes risk and uncertainty. It is useful
to view gharar as a continuum of risk and uncertainty wherein
the extreme point of zero risk is the only point that is well-defined.
Beyond this point, gharar becomes a variable and the gharar
involved in a real life contract would lie somewhere on this
continuum. Beyond a point on this continuum, risk and uncertainty
or gharar becomes unacceptable11. Jurists have attempted to
identify such situations involving forbidden gharar. A major
factor that contributes to gharar is inadequate information
(jahl) which increases uncertainty. This is when the terms
of exchange, such as, price, objects of exchange, time of
settlement etc. are not well-defined. Gharar is also defined
in terms of settlement risk or the uncertainty surrounding
delivery of the exchanged articles.
Islamic scholars have identified the conditions which make
a contract uncertain to the extent that it is forbidden. Each
party to the contract must be clear as to the quantity, specification,
price, time, and place of delivery of the contract. A contract,
say, to sell fish in the river involves uncertainty about
the subject of exchange, about its delivery, and hence, not
Islamically permissible. The need to eliminate any element
of uncertainty inherent in a contract is underscored by a
number of traditions.12
An outcome of excessive gharar or uncertainty is that it
leads to the possibility of speculation of a variety which
is forbidden. Speculation in its worst form, is gambling.
The holy Quran and the traditions of the holy prophet explicitly
prohibit gains made from games of chance which involve unearned
income. The term used for gambling is maisir which literally
means getting something too easily, getting a profit without
working for it. Apart from pure games of chance, the holy
prophet also forbade actions which generated unearned incomes
without much productive efforts.13
Here it may be noted that the term speculation has different
connotations. It always involves an attempt to predict the
future outcome of an event. But the process may or may not
be backed by collection, analysis and interpretation of relevant
information. The former case is very much in conformity with
Islamic rationality. An Islamic economic unit is required
to assume risk after making a proper assessment of risk with
the help of information. All business decisions involve speculation
in this sense. It is only in the absence of information or
under conditions of excessive gharar or uncertainty that speculation
is akin to a game of chance and is reprehensible.
3.2 Gharar & Speculation with of Futures & Forwards
Considering the case of the basic exchange contracts highlighted
in section 1, it may be noted that the third type of contract
where settlement by both the parties is deferred to a future
date is forbidden, according to a large majority of jurists
on grounds of excessive gharar. Futures and forwards in currencies
are examples of such contracts under which two parties become
obliged to exchange currencies of two different countries
at a known rate at the end of a known time period. For example,
individuals A and B commit to exchange US dollars and Indian
rupees at the rate of 1: 22 after one month. If the amount
involved is $50 and A is the buyer of dollars then, the obligations
of A and B are to make a payments of Rs1100 and $50 respectively
at the end of one month. The contract is settled when both
the parties honour their obligations on the future date.
Traditionally, an overwhelming majority of Sharia scholars
have disapproved such contracts on several grounds. The prohibition
applies to all such contracts where the obligations of both
parties are deferred to a future date, including contracts
involving exchange of currencies. An important objection is
that such a contract involves sale of a non-existent object
or of an object not in the possession of the seller. This
objection is based on several traditions of the holy prophet.14
There is difference of opinion on whether the prohibition
in the said traditions apply to foodstuffs, or perishable
commodities or to all objects of sale. There is, however,
a general agreement on the view that the efficient cause (illa)
of the prohibition of sale of an object which the seller does
not own or of sale prior to taking possession is gharar, or
the possible failure to deliver the goods purchased.
Is this efficient cause (illa) present in an exchange involving
future contracts in currencies of different countries ? In
a market with full and free convertibility or no constraints
on the supply of currencies, the probability of failure to
deliver the same on the maturity date should be no cause for
concern. Further, the standardized nature of futures contracts
and transparent operating procedures on the organized futures
markets15 is believed to minimize this probability. Some recent
scholars have opined in the light of the above that futures,
in general, should be permissible. According to them, the
efficient cause (illa), that is, the probability of failure
to deliver was quite relevant in a simple, primitive and unorganized
market. It is no longer relevant in the organized futures
markets of today16. Such contention, however, continues to
be rejected by the majority of scholars. They underscore the
fact that futures contracts almost never involve delivery
by both parties. On the contrary, parties to the contract
reverse the transaction and the contract is settled in price
difference only. For example, in the above example, if the
currency exchange rate changes to 1: 23 on the maturity date,
the reverse transaction for individual A would mean selling
$50 at the rate of 1:23 to individual B. This would imply
A making a gain of Rs50 (the difference between Rs1150 and
Rs1100). This is exactly what B would lose. It may so happen
that the exchange rate would change to 1:21 in which case
A would lose Rs50 which is what B would gain. This obviously
is a zero-sum game in which the gain of one party is exactly
equal to the loss of the other. This possibility of gains
or losses (which theoretically can touch infinity) encourages
economic units to speculate on the future direction of exchange
rates. Since exchange rates fluctuate randomly, gains and
losses are random too and the game is reduced to a game of
chance. There is a vast body of literature on the forecastability
of exchange rates and a large majority of empirical studies
have provided supporting evidence on the futility of any attempt
to make short-run predictions. Exchange rates are volatile
and remain unpredictable at least for the large majority of
market participants. Needless to say, any attempt to speculate
in the hope of the theoretically infinite gains is, in all
likelihood, a game of chance for such participants. While
the gains, if they materialize, are in the nature of maisir
or unearned gains, the possibility of equally massive losses
do indicate a possibility of default by the loser and hence,
gharar.
3.3. Risk Management in Volatile Markets
Hedging or risk reduction adds to planning and managerial
efficiency. The economic justification of futures and forwards
is in term of their role as a device for hedging. In the context
of currency markets which are characterized by volatile rates,
such contracts are believed to enable the parties to transfer
and eliminate risk arising out of such fluctuations. For example,
modifying the earlier example, assume that individual A is
an exporter from India to US who has already sold some commodities
to B, the US importer and anticipates a cashflow of $50 (which
at the current market rate of 1:22 mean Rs 1100 to him) after
one month. There is a possibility that US dollar may depreciate
against Indian rupee during these one month, in which case
A would realize less amount of rupees for his $50 ( if the
new rate is 1:21, A would realize only Rs1050 ). Hence, A
may enter into a forward or future contract to sell $50 at
the rate of 1:21.5 at the end of one month (and thereby, realize
Rs1075) with any counterparty which, in all probability, would
have diametrically opposite expectations regarding future
direction of exchange rates. In this case, A is able to hedge
his position and at the same time, forgoes the opportunity
of making a gain if his expectations do not materialize and
US dollar appreciates against Indian rupee (say, to 1:23 which
implies that he would have realized Rs1150, and not Rs1075
which he would realize now.) While hedging tools always improve
planning and hence, performance, it should be noted that the
intention of the contracting party - whether to hedge or to
speculate, can never be ascertained.
It may be noted that hedging can also be accomplished with
bai salam in currencies. As in the above example, exporter
A anticipating a cash inflow of $50 after one month and expecting
a depreciation of dollar may go for a salam sale of $50 (with
his obligation to pay $50 deferred by one month.) Since he
is expecting a dollar depreciation, he may agree to sell $50
at the rate of 1: 21.5. There would be an immediate cash inflow
in Rs 1075 for him. The question may be, why should the counterparty
pay him rupees now in lieu of a promise to be repaid in dollars
after one month. As in the case of futures, the counterparty
would do so for profit, if its expectations are diametrically
opposite, that is, it expects dollar to appreciate. For example,
if dollar appreciates to 1: 23 during the one month period,
then it would receive Rs1150 for Rs 1075 it invested in the
purchase of $50. Thus, while A is able to hedge its position,
the counterparty is able to earn a profit on trading of currencies.
The difference from the earlier scenario is that the counterparty
would be more restrained in trading because of the investment
required, and such trading is unlikely to take the shape of
rampant speculation.
4. Summary & Conclusion
Currency markets of today are characterized by volatile exchange
rates. This fact should be taken note of in any analysis of
the three basic types of contracts in which the basis of distinction
is the possibility of deferment of obligations to future.
We have attempted an assessment of these forms of contracting
in terms of the overwhelming need to eliminate any possibility
of riba, minimize gharar, jahl and the possibility of speculation
of a kind akin to games of chance. In a volatile market, the
participants are exposed to currency risk and Islamic rationality
requires that such risk should be minimized in the interest
of efficiency if not reduced to zero.
It is obvious that spot settlement of the obligations of
both parties would completely prohibit riba, and gharar, and
minimize the possibility of speculation. However, this would
also imply the absence of any technique of risk management
and may involve some practical problems for the participants.
At the other extreme, if the obligations of both the parties
are deferred to a future date, then such contracting, in all
likelihood, would open up the possibility of infinite unearned
gains and losses from what may be rightly termed for the majority
of participants as games of chance. Of course, these would
also enable the participants to manage risk through complete
risk transfer to others and reduce risk to zero. It is this
possibility of risk reduction to zero which may enable a participant
to earn riba. Future is not a new form of contract. Rather
the justification for proscribing it is new. If in a simple
primitive economy, it was prevention of gharar relating to
delivery of the exchanged article, in todays' complex financial
system and organized exchanges, it is prevention of speculation
of kind which is unIslamic and which is possible under excessive
gharar involved in forecasting highly volatile exchange rates.
Such speculation is not just a possibility, but a reality.
The precise motive of an economic unit entering into a future
contract - speculation or hedging may not ascertainable (
regulators may monitor end use, but such regulation may not
be very practical, nor effective in a free market). Empirical
evidence at a macro level, however, indicates the former to
be the dominant motive.
The second type of contracting with deferment of obligations
of one of the parties to a future date falls between the two
extremes. While Sharia scholars have divergent views about
its permissibility, our analysis reveals that there is no
possibility of earning riba with this kind of contracting.
The requirement of spot settlement of obligations of atleast
one party imposes a natural curb on speculation, though the
room for speculation is greater than under the first form
of contracting. The requirement amounts to imposition of a
hundred percent margin which, in all probability, would drive
away the uninformed speculator from the market. This should
force the speculator to be a little more sure of his expectations
by being more informed. When speculation is based on information
it is not only permissible, but desirable too. Bai salam would
also enable the participants to manage risk. At the same time,
the requirement of settlement from one end would dampen the
tendency of many participants to seek a complete transfer
of perceived risk and encourage them to make a realistic assessment
of the actual risk. .
Notes & References
1. These diverse views are reflected in the papers presented
at the Fourth Fiqh Seminar organized by the Islamic Fiqh Academy,
India in 1991 which were subsequently published in Majalla
Fiqh Islami, part 4 by the Academy. The discussion on riba
prohibition draws on these views.
2. Nabil Saleh, Unlawful gain and Legitimate Profit in Islamic
Law, Graham and Trotman, London, 1992, p.16
3. Ibn Qudama, al-Mughni, vol.4, pp.5-9
4. Shams al Din al Sarakhsi, al-Mabsut, vol 14, pp 24-25
5. Paper presented by Abdul Azim Islahi at the Fourth Fiqh
Seminar organized by Islamic Fiqh Academy, India in 1991.
6. Paper by Dr M N Siddiqui highlighting the issue was circulated
among all leading Fiqh scholars by the Islamic Fiqh Academy,
India for their views and was the main theme of deliberations
during the session on Currency Exchange at the Fourth Fiqh
Seminar held in 1991.
7. It is contended by some that the above example may be
modified to show the possibility of riba with spot settlement
too. "In a given moment in time when the market rate
of exchange between dollar and rupee is 1:20, if an individual
purchases $50 at the rate of 1:22 (settlement of his obligation
also on a spot basis), then it amounts to the seller of dollars
exchanging $50 with $55 on a spot basis (Since, he can obtain
Rs 1100 now, exchange them for $55 at spot rate of 1:20)"
Thus, spot settlement can also be a clear source of riba.
Does this imply that spot settlement should be proscribed
too ? The fallacy in the above and earlier examples is that
there is no single contract but multiple contracts of exchange
occurring at different points in time (true even in the above
case). Riba can be earned only when the spot rate of 1:20
is fixed during the time interval between the transactions.
This assumption is, needless to say, unrealistic and if imposed
artificially, perhaps unIslamic.
8. Islam envisages a free market where prices are determined
by forces of demand and supply. There should be no interference
in the price formation process even by the regulators. While
price control and fixation is generally accepted as unIslamic,
some scholars, such as, Ibn Taimiya do admit of its permissibility.
However, such permissibility is subject to the condition that
price fixation is intended to combat cases of market anomalies
caused by impairing the conditions of free competition. If
market conditions are normal, forces of demand and supply
should be allowed a free play in determination of prices.
9. Some Islamic scholars use the term forward to connote
a salam sale. However, we use this term in the conventional
sense where the obligations of both parties are deferred to
a future date and hence, are similar to futures in this sense.
The latter however, are standardized contracts and are traded
on an organized Futures Exchange while the former are specific
to the requirements of the buyer and seller.
10. This is known as bai al inah which is considered forbidden
by almost all scholars with the exception of Imam Shafii.
Followers of the same school, such as Al Nawawi do not consider
it Islamically permissible.
11. It should be noted that modern finance theories also
distinguish between conditions of risk and uncertainty and
assert that rational decision making is possible only under
conditions of risk and not under conditions of uncertainty.
Conditions of risk refer to a situation where it is possible
with the help of available data to estimate all possible outcomes
and their corresponding probabilities, or develop the ex-ante
probability distribution. Under conditions of uncertainty,
no such exercise is possible. The definition of gharar, Real-life
situations, of course, fall somewhere in the continuum of
risk and uncertainty.
12. The following traditions underscore the need to avoid
contracts involving uncertainty.
Ibn Abbas reported that when Allah's prophet (pbuh) came
to Medina, they were paying one and two years advance for
fruits, so he said: "Those who pay in advance for any
thing must do so for a specified weight and for a definite
time".
It is reported on the authority of Ibn Umar that the Messenger
of Allah (pbuh) forbade the transaction called habal al-habala
whereby a man bought a she-camel which was to be the off-spring
of a she-camel and which was still in its mother's womb.
13. According to a tradition reported by Abu Huraira, Allah's
Messenger (pbuh) forbade a transaction determined by throwing
stones, and the type which involves some uncertainty.
The form of gambling most popular to Arabs was gambling by
casting lots by means of arrows, on the principle of lottery,
for division of carcass of slaughtered animals. The carcass
was divided into unequal parts and marked arrows were drawn
from a bag. One received a large or small share depending
on the mark on the arrow drawn. Obviously it was a pure game
of chance.
14. The holy prophet is reported to have said " Do not
sell what is not with you"
Ibn Abbas reported that the prophet said: "He who buys
foodstuff should not sell it until he has taken possession
of it." Ibn Abbas said: "I think it applies to all
other things as well".
15. The Futures Exchange performs an important function of
providing a guarantee for delivery by all parties to the contract.
It serves as the counterparty in the exchange for both, that
is, as the buyer for the sale and as the seller for the purchase.
16. M Hashim Kamali "Islamic Commercial Law: An Analysis
of Futures", The American Journal of Islamic Social Sciences,
vol.13, no.2, 1996
Send Your Comments to: Dr Mohammed Obaidullah, Xavier Institute
of Management, Bhubaneswar 751 013, India
Mail to: obeid@ximb.stpbh.soft.net
Source: http://vlib.unitarklj1.edu.my/htm/islamforex.htm
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Forex Trading is considered as High Risk / High Reward
Business. The investments in the forex Trading is exposed
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There is no system which can guarantee profits in forex trading.
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