Pasal 169: Dilarang samasekali mendirikan bank-bank, kecuali bank milik Daulah, yang tidak menjalankan praktek riba. Bank ini merupakan salah satu unit dari Baitul Maal yang beraktivitas memberikan pinjaman uang sesuai hukum syara’, dengan transaksi keuangan yang mudah.
Article 169: It is completely prohibited to open banks, and the only one permitted will be the State bank, and there are no transactions upon interest. This will be dealt with by a particular department of the Bayt Al-Mal. Financial loans will be undertaken in accordance with the rules of the Shari’ah and the financial and currency transactions will be facilitated.
The work of the bank falls under three types: interest based transactions such as bonds and credits, transferral transactions such as cheques and deposits.
The transferral transactions and deposits are both permitted according to the Shari’ah and the evidence for that are the evidences for transfers and the evidences for trusts. So it is permitted for a Muslim to open a bank in order to provide transferral transactions and services for deposits and whatever else that are similar from whatever are permitted by the Shari’ah such as currency transactions. In such a case, opening a bank would not be considered forbidden, since only the bank which operates with interest is forbidden. However, these transactions do not make large profits or its profits could only help in establishing something similar to the shops for currency traders. It would not be possible for anyone to open a bank with such money due to the lack of capability to make enough profits for it, since the profits from transfers and deposits, and the profits from currency exchange transactions are very small compared to the profits from interest, and the large profits are the profits which are from investments in interest based transactions and so these are the profitable investments. Accordingly the profits from transfers, deposits and currency exchange transactions would not be sufficient to open banks in the meaning they are known as in the world today, but rather it would only be sufficient to open shops with limited services, such as the shops of currency traders, which is not applicable to what are known as banks today. The opening of banks could not occur except with interest based transactions, and the bank is only opened for the sake of interest based transactions, and interest is forbidden (Haram) according to decisive Qur’anic text:
“And has forbidden interest (usury)”, and for that reason opening a bank according to its current understanding is forbidden.
However, the giving of loans is permitted without restriction, due to the words of the Messenger :
«مَا مِنْ مُسْلِمٍ يُقْرِضُ مُسْلِماً قَرْضاً مَرَّتَيْنِ إِلاَّ كَانَ كَصَدَقَتِهَا مَرَّةً»
“There is no Muslim who gives a loan twice to another Muslim, but it will be like giving charity once.” (reported by Ibn Maja from ‘Abd Allah b. Mas’ud), and it is reported from Anas who said:
«رَأَيْتُ لَيْلَةَ أُسْرِيَ بِي عَلَى بَابِ الْجَنَّةِ مَكْتُوباً: الصَّدَقَةُ بِعَشْرِ أَمْثَالِهَا، وَالْقَرْضُ بِثَمَانِيَةَ عَشَرَ، فَقُلْتُ: يَا جِبْرِيلُ، مَا بَالُ الْقَرْضِ أَفْضَلُ مِنْ الصَّدَقَةِ؟ قَالَ: لأَنَّ السَّائِلَ يَسْأَلُ وَعِنْدَهُ، وَالْمُسْتَقْرِضُ لا يَسْتَقْرِضُ إِلاَّ مِنْ حَاجَةٍ»
“On the night on which I was taken on the Night of ascent (Isra), I saw written at the gate of Paradise: 'Charity brings a tenfold reward and a loan brings an eighteen fold reward.' I said: 'O Jibril! Why is a loan better than charity?' He said: 'Because the beggar asks when he has something, but the one who asks for loan does so only because he is in need” (reported by Ibn Maja).
Likewise, deposits are permitted due to the words of Allah (swt):
((إِنَّ اللَّهَ يَأْمُرُكُمْ أَنْ تُؤَدُّوا الْأَمَانَاتِ إِلَى أَهْلِهَا)) [النساء 58] وقال: ((فَإِنْ أَمِنَ بَعْضُكُمْ بَعْضًا فَلْيُؤَدِّ الَّذِي اؤْتُمِنَ أَمَانَتَهُ))
“Indeed, Allah commands you to render trusts to whom they are due.” (TMQ 4:58), and He (swt) said: “And if one of you entrusts another, then let him who is entrusted discharge his trust [faithfully].” (TMQ 2:283), and due to the words of the Messenger :
«أَدِّ الأَمَانَةَ إِلَى مَنْ ائْتَمَنَكَ، وَلا تَخُنْ مَنْ خَانَكَ»
“Give the trust to the one who entrusted you, and don't betray who betrays you” (reported by Al-Tirmidhi from Abu Hurayrah, and he said: that the narration is Hasan Gharib). And it is reported about him :
«أَنَّهُ كَانَتْ عِنْدَهُ وَدَائِعُ، فَلَمَّا أَرَادَ الهِجْرَةَ أَوْدَعَهَا عِنْدَ أُمِّ أَيْمَنَ، وَأَمَرَ عَلِيّاً أَنْ يَرُدَّهَا عَلَى أَهْلِهَا»
“that he had some deposits with him, and when he wanted to make migration (Hijrah), he gave them to Um Ayman and ordered Ali to return them to their owners.” (as reported by Ibn Qudamah in Al-Mughni).
Transfer of loans is permitted due to the words of the Messenger :
«مَطْلُ الْغَنِيِّ ظُلْمٌ، وَإِذَا أُتْبِعَ أَحَدُكُمْ عَلَى مَلِيءٍ فَلْيَتْبَعْ»
“The delay (of payment) by a rich person is injustice, but when one of you is referred for payment to a wealthy man, let him be referred.” (reported by Muslim),and in a version by Ahmad in Al-Musnad:
«وَمَنْ أُحِيلَ عَلَى مَلِيءٍ فَلْيَحْتَلْ»
“whoever is referred for payment to a wealty man, then accept it.”.
These three transactions which the bank undertakes are permitted by the Shari’ah and the only thing forbidden is taking interest upon loans. The bank cannot be opened and operate except with interest, so, therefore, it is imperative to provide these services to people without interest, since they have become part of peoples’ affairs and accordingly it is necessary for the State to open a bank as a branch of the Bayt Al-Mal. Then it would undertake these three transactions according to the opinion and Ijtihad of the Imam, because they are part of the permitted issues whose management is run according to his opinion and Ijtihad, and so this is the evidence that the State must open a bank which would undertake the settling of peoples’ affairs.