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CRITICAL STUDY OF ISLAMIC CAPITAL MARKET

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Identical to a stock market where capital is traded between the parties that have excess capital (investors) to people in need of capital (issuer) to develop an investment. In the Capital Market Law No. 8, 1995, the capital market defined as "activities concerned with the public offering and trading of securities, public companies relating to the issuance of securities, as well as the institutions and professions related to the effect"

I. BACKGROUND PROBLEM 
The non real or monetary sector can be broadly divided into two categories namely the money market and capital market. The money market is meeting the demand and supply on the local and foreign currencies or in other words, trade the forex market, while the stock market is a capital transaction between the provider of capital (investors) with a party that requires capital (employers) by using instruments of stocks, bonds, Mutual Funds and derivatives instruments (derivative instruments). 


 In the present flow of money and capital purposes are rarely associated with international trade transactions and capital requirements for long-term investment. But conventional economic view money market and capital markets as a means of short-term investments that are speculative in order to gain profit (gain) is fast and big. Especially with regard to capital markets, the international community at the beginning of this millennium century were struck by a massive financial scandal that hit the giant corporations of the United States began to Enron, WorldCom, AOL, Walt Disney, Vivendi Universal, Merck, Global Crossing, Xeroc, Tyco, involving institutions such as investment bank CSFB, JP Morgan, and Merrill Lycnh, and certainly not out of the role of prior public accounting firm to audit these companies. 


Financial scandal that made American capital markets inflamed. Stock prices tumbling on Wall Street immediately. Dow Jones index prior to the scandal that is above the 10,000 level had dropped to its lowest point during the five years 7702. Destruction of stock prices on Wall Street quickly spread to other world markets. CAC Paris, Frankfurt's DAX, the Nikkei in Tokyo, including the Jakarta Composite Index, and others experienced a sharp decline.


 Drop in stock prices on Wall Street led to millions of people lost their pensions and savings. While the scandal is the impact on U.S. economic downturn led to tens of thousands of people lost their jobs. In the midst of a slump, and the risk of scandals that hit the conventional capital market, now the world will begin to look the Islamic Economic System as an alternative solution. Preceded by the establishment of Islamic banks and Islamic insurance institutions in Islamic countries, including in the West itself, now and mensosialisaikan efforts to implement the Islamic capital markets become more frequent. 


On March 14, 2003, the government represented by the Minister of Finance Boediono, Bapepam and it is officially launched its Islamic capital market. Earlier in 2000 the Jakarta Stock Exchange (JSE) in cooperation with PT Danareksa Investment Management (DIM) has launched the Jakarta Islamic Index, while the first Islamic mutual fund that has been there in 1997, and the issuance of Bonds Mudaraba Sharia Indosat in 2002. What's more, the financial center of the world capitalist Wall Street, Dow Jones in February 1999 has launched the Dow Jones Islamic Market Indexes (DJIMI). The development is welcomed by many.


It is interesting to examine the possibility of Indonesia to Hub / or the Center for Islamic Finance in Southeast Asia in 2012 as some economists predict Islam daily Republika on April 18 edition of 2008. This appreciation comes after an endorsement of Sharia State Securities Act (SBSN) on which the issuance of sukuk States coupled with the release of Islamic Banking Act is enacted by the Parliament on Tuesday, June 17, 2008. So that it can overshadow the Islamic industry players are expected to be more and more better than the Real sector (Banking) and Non Real sector (Money and Capital Markets). Where capital markets, money markets and the banking sector is an integral and mutually influence each other in a Financial System (Financial)

II. PROBLEM IDENTIFICATION
Because the capital markets, money markets and the banking sector is an integral and mutually influence each other in a Financial System (Financial), so the author believes that the location of the base of the economic crisis occurred in the interest-based Non-Real (Money Market and Capital Markets). This is based on the fact that market players in the industry-conventional finance in general - the more the channel and placing their excess funds to the Non-Real Sector Real sector instead. And we did not expect this to happen also in the Economic System of Islam, especially in its capital market, whereas the world, especially for countries like the Islamic Middle East now begin to look for this economic system.

III. LIMITATION OF THE PROBLEM
As previously disclosed on the identification problem, the authors limit this writing only the Islamic Capital Market.

IV. THEOLOGICAL PROBLEM
Seeing this, the author considers that it is an especially exciting when the world's Islamic countries begin to look to Islamic Economics as an alternative economic system of the crises created by the capitalist economic system. But we must be critical for the new concept offered are:


A. Is Islamic capital market is in principle not much different from the conventional capital markets?


2. Or does the concept and application of Islamic capital market is in conformity with Islamic law?

V. BASIS OF THEORY (STUDY REFERENCES)
A. Capital Market


Identical to a stock market where capital is traded between the parties that have excess capital (investors) to people in need of capital (issuer) to develop an investment. In the Capital Market Law No. 8, 1995, the capital market defined as "activities concerned with the public offering and trading of securities, public companies relating to the issuance of securities, as well as the institutions and professions related to the effect".
The parties involved in the capital market are:


A. Issuer
Issuer is a business entity (corporation) that issued the shares to raise capital or issue bonds to obtain a loan to investors at the Stock Exchange.


2. Intermediaries issued covering
a. Underwriter


Underwriter is the intermediary that guarantees the sale of emission, so that if the compulsory purchase of emission (at least temporarily before selling) so that the necessary funding requirements are met according to plan issuers.


b. Certified Public Accountants


Public accounting serves to check the issuer's financial condition and give an opinion whether the financial statements of issuers which have issued fair or not.
c. Appraisal Company
Appraisal Company serves to provide an assessment of the issuer, whether the issuer's asset value is reasonable or not.


3. Capital Market Executive Agency (BAPEPAM)
Capital Market Executive Agency is the body that regulate and supervise the capital markets, including issuers write off (delisted) from the trading floor, providing sanctions against those who violate the rules of capital markets. Indonesia's Capital Market Executive Agency is Bapepam (Supervisory Board and Executive Capital Markets).


4. Stock Exchange
Stock Exchange is the place to hold the capital market securities trading activities established by a business entity. In Indonesia there are two Stock Exchange, the Jakarta Stock Exchange (JSE) managed by the Jakarta Stock Exchange and Surabaya Stock Exchange (SSX), which is managed by the Surabaya Stock Exchange.


5. Intermediary Securities Trading
Securities traded in the stock exchange may only be transacted through an intermediary, the broker (broker) and the commissioner.
a. Brokers are those who make a purchase and sale of securities for the benefit of another person with getting in return.
b. The Commissioner is a party that does the buying and selling securities for its own or another person with getting in return.


6. Investor
Investors are parties to invest in securities on the stock with a buy or sell back the securities. In the process of capital market trading of securities (stocks and bonds) through the stages of the primary market and secondary market.


Primary market is the prime selling stocks and bonds by the issuer to investors. Both parties need not meet each other in the market but through intermediaries. From the sale of shares and securities in the primary market, the issuers obtain the funds needed to expand its business.


While the secondary market is a market that occurred shortly after the markets or prime. That is after the stock and bond investors who bought from the issuer, the investor sells back the shares and bonds to other investors, both in order to profit from rising prices (capital gains) as well as to avoid loss (capital loss). Trading in the secondary market on a regular basis is what happens in the stock exchange every day.

VI. DISCUSSION
A. Finding Benefits in Capital Markets


It seems that we need to recall the way the world capital markets to open up our critical attitude towards one of the Capitalist financial institution. The world will never forget the American capital market shocks "Black October" in 1929 which led to the collapse of world economy, especially the United States. Event known as The Great Depression led to poverty, hunger and misery. From 1929 to 1933 the U.S. stock market lost 85% of its value. Then the next stock market shocks occurred in October 1987. At that time the stock price index on Wall Street fell by 22% in a day. In exactly the same in the last week in October 1997, stock prices in the world capital market down dramatically. Decline in the share price in Hong Kong started creeping into Japan, then to Europe and the last stop in America.


Although the institutions we are talking about is called the capital market (stock market), does not mean all transactions that occur on the stock exchange is a meeting between people who need capital with investors who want to invest in a company's interest. The meeting between the parties that need capital with those who provide capital only occurs once in the primary market at the time of the IPO (Initial Public Offering). Furthermore, the investor is free to choose whether the holding of shares purchased as a form of long-term investment or to hold it briefly and then release it in the secondary market when he saw the movement of stock prices indicate margins. This is the common actions that continuously occur in the capital market that is the desire to achieve capital gains in large numbers and in a short time.


Samuelson and Nordhaus disclose speculative activities in emerging capital markets because of the self-fulfilling expectations. It means if someone buys a particular stock with the expectation value of the stock will go up, then this action will push up stock prices are concerned. This makes people more motivated to buy again and this causes the stock price rises again.


It's just an advantage in playing the stock investor is not necessarily acquired through capital gains by selling shares at a higher selling price than the price of previously purchased. It could be investors through the stock brokers do mengoreng fried with the aim of mastering a particular company's shares are bought at cheap prices far below the normal price through transactions or by throwing engineering issues that negatively impact a specific company and its share price fall. When stock prices fall then there was panic among other investors in particular are more common, so they release the shares they hold to the market to greater losses can be avoided.


Behind the speculative activities of the market is strongly influenced by internal and external factors. Internal factors related to the performance of the companies concerned, including how dividends are distributed to its shareholders, business prospects and the benefits to be achieved by the company, including the company's poor performance. Factual examples are WorldCom financial scandal in its financial statements reported a profit of U.S. $ 3.8 billion, whereas the figure is the amount of loss suffered by the company. Negative sentiments such as this will encourage the investors off the stock so the stock price falls. While external factors including government policy, national macroeconomic conditions, banking interest rates, international economic conditions and development of world stock markets.


So everyone, businesses and government agencies in this capitalist economy in general want a constantly rising stock prices, as reflected by an increase in stock price index in order to profit by the advantages can be achieved. While market participants with moral hazartnya perform any engineering for profit, of course, harm others. This is the picture of economic delusion that occur in the capitalist economic institutions. As said by scientist Isaac Newton (as a victim of wishful thinking transactions gain share) quoted Alan Woods and Ted Grant: "I can calculate the movement of objects in the sky, but I was not able to account for the madness of people."


2. Differences with the Conventional Islamic Capital Market

There are two main things in the Islamic capital market indices, namely Islam and Islamic capital market itself. Islamic indexes showed the movement of share prices of issuers categorized according to sharia, the Islamic capital market whereas institutional capital markets as commonly applied based on "Islamic principles."


a. Conventional Stock Index and Stock Index Islam
Islamic indices not only be issued by the Islamic capital markets but also by the conventional capital markets. Even before the establishment of Islamic capital market institutions in a country, the local stock market which is of course based on the index issued in advance of conventional Islam. In the Jakarta Stock Exchange, for example, the Jakarta Stock Exchange (JSE) in cooperation with PT Danareksa Investment Management (DIM) launched the Jakarta Islamic Index (JII) before the Islamic capital market itself was inaugurated.


The purpose of the Islamic indices as Jakarta Islamic Index included 30 stocks are selected, namely as a benchmark (benchmarks) to measure the investment performance of stocks based on sharia and increase investor confidence in equity investment to develop the sharia, or to provide the opportunity for investors who wish to invest according to Islamic principles.


The fundamental difference between conventional index index insert Islam is the conventional index of all shares listed on the stock to ignore this aspect of halal haram, what matters listed issuer's stock (listing) is according to the rules applicable (legal). As a result there is not an issue if the issuer is selling its shares on the stock moves in the business sector as opposed to Islam or who has the destructive nature of community life. For example, in early 2003, in Australia there is embroidery house (brothel) that goes into the local stock exchange.


In more detail in the Dow Jones website to share the criteria that should not be included in the calculation of the Islamic Market Index (DJ Islamic Market Indexes), which is a company engaged in the production:


· Alcohol (liquor)
· Pigs and its related
· Conventional financial services / Capitalist, such as banks and insurance
· The entertainment industry, such as hotels, casinos and gambling, cinema, media and music industry porn.


Dow Jones also expressed opinion of Islamic scholars to avoid investing in companies associated with tobacco and cigarette industry and weapons of mass destruction. Meanwhile, the FTSE in his paper entitled Ground Rules for the Management of the FTSE Global Islamic Index Series suggests that the shares of companies included in the index Islam should not be engaged in:


· Banking and other financial business-related interest (interest)
· Alcohol
· Cigarettes
· Gambling
· The factory weapons
· Life insurance
· Ranch pork, packing and processing or other matters related to the pig.
· Sector / significant companies affected by the things mentioned above.
· Companies that have a debt burden of usury by the percentage of the company's assets exceed the allowable limits of Islamic law.


On the Jakarta Stock Exchange (JSE), according to Adiwarman of 333 issuers listed on the stock of which 236 belong to Shariah compliance. While the remaining 59 stocks are "haram" or not in accordance with Islamic principles, such as banking stocks, liquor and cigarettes. The remaining 34 shares of stock belonging to subhat such as the hospitality industry and four shares of harm.


From the above description can be drawn the dividing line between the Islamic indexes and conventional indexes. First, if the index Islam issued by an institution under its auspices in the conventional capital market, the index calculation is based on the stocks that meet these criteria are classified Shariah whereas conventional indexes include all stocks listed in the stock market. Second, if issued by the institution of Islamic indexes Islamic capital market, then the index is based on all shares listed on the Islamic capital market that have previously been selected by the manager.


b. Instrument
In the conventional capital market instruments are traded securities (securities) such as stocks, bonds, and derivative instruments (derivatives) options, rights, warrants, and Mutual Funds.


Stocks is a sign of a letter or possession of any person or entity against the company issuing the shares, while the bond is evidence of corporate debt instruments to the holders of the bonds in question.


Options are derivative products (derivatives) of securities (stocks and bonds). Robert Angg (1997) as cited Anoraga and Pakarti defined as the product options that will give effect to the rights of the holder (buyer) to buy or sell a specified number of certain financial assets, at a certain price, and within a certain period.


The right is the effect which entitles shareholders to buy new shares to be issued by the issuer at a specified price and proportion.


Warrant is a derivative of common stock that is long term and entitles the holder to buy shares on behalf of a price.


While the Mutual Fund (mutual fund) is an investment company that manages investments in stocks, bonds, etc., by issuing its own securities addressed to investors, so investors are no longer necessary to invest directly on a variety of securities traded in stock exchange but enough to buy securities issued by the Fund.


In the Islamic capital market, which traded instruments are stocks, bonds and mutual fund Islamic Sharia, while the options, warrants and rights do not include instruments that are permissible.
The stock is the same as the Islamic capital market in the stock of conventional capital markets. Only difference of shares traded in the Islamic capital market has to come from issuers that meet the criteria for sharia as the author mentioned in the discussion of Islamic indexes.


While Islamic bonds in contrast to conventional bonds. Conventional bond is a type of financial product that is not justified under Islam because it uses the flower as the attraction. According to Muhammad al-Amin, instruments of Islamic bonds may be issued by using the principle of mudaraba, Musharaka, Ijara, istisna ', salam, and murabaha that this principle is the name of Islamic bonds, depending on which one to use the principle of the issuer.


Islamic bond issuance in Indonesia is dipelapori by Indosat Indosat Bonds Mudaraba Sharia worth Rp 100 billion in October 2002. These bonds have doubled so oversubribed Indosat increase the amount of the bond issue to $ 175 billion. Indosat step is followed by Bank Muamalat and Bank Syariah Mandiri (BSM) this year.


In the concept of Mudaraba Sharia Bonds, the issuer issued the long-term securities to be offered to investors and the obligation to pay income or margin of profit sharing fee, and principal amount at maturity of the bonds to the holders of such bonds. In this case the issuer serves as mudharib while investors holding bonds as shahibul mall. While that issue Islamic bond issuers must comply with requirements such as the requirement that the issuer included in the index criteria of Islam.


The third instrument is traded in the Islamic capital market is a Sharia Fund. Syariah Fund is an investment vehicle that combines a mixture of stocks and bonds in a single Islamic products managed by the investment manager. Mutual fund managers offers Shariah Fund to investors who are interested, while the funds raised from investors are managed by investment managers to invest in stocks or bonds are considered favorable sharia.


Meanwhile, the development of Islamic Mutual Funds in Indonesia is still slow. In 2002 the last public funds collected in a new Fund of Rp 40 billion or about 0.1% of the total Fund. While the Fund is currently the new Danareksa Danareksa Islamic Sharia and Balanced run Danareksa, PNM Fund is managed Shariah Capital Nasional Madani (PNM), which is managed Rifan Rifan Sharia Asset Management (RAM), and Mutual Fund launched a new Shariah Batasa PT Batasa Capital this year.


c. Transaction Mechanism
In the context of Islamic capital market, according to Alhabshi, ideally the Islamic capital market that does not contain a usurious transaction, the transaction is doubtful (gharar), and shares of companies engaged in a prohibited area. Islamic capital market transactions must be free of unethical and immoral, such as market manipulation, insider transactions that take advantage of (insider trading), selling shares that have not owned and buy it later (short selling).


Meanwhile, Obaidullah put ethics in the Islamic capital market, which everyone is free to perform the contract (contract freedom) as long as sharia-compliant, net of elements of riba (freedom from al-usury), gharar (excessive uncertainty), al-qimar/judi (gambling ), al-maysir (unearned income), manipulation and price controls (price control and manipulation), darar (detriment) and do not harm the public interest (unrestricted public interest), also formed a fair price (entitlement to Transact at fair price) and contained information that accurate, adequate, and what it is (entitlement to equal, adequate, and accurate infromation).


The essence of what was mentioned by Alhabshi and Obaidullah was the Islamic capital market have to throw away every transaction is based on speculation. This is different from the conventional capital market speculation put the stock as a way to make a profit. Although in certain cases such as insider trading and market manipulation by making false financial statements are prohibited within the conventional capital markets.


Irfan Syauqi clarify speculation about this, first, speculation is not the nature of investment activities, second, speculation led to an increase in income for a group of people without any contributing both positive and productive, third, speculation is the cause of financial crisis, and the fourth, the speculation came from mental "to get rich quick".


The transaction mechanism Islamic capital market products, Irfan Syauqi discourse suggests that the purchase and sale of shares should not be done directly. In the conventional capital market investors can buy or sell shares directly with a broker or brokerage services. This situation makes it possible for speculators to play the price. As a result, changes in stock prices are determined by market forces rather than due to the intrinsic value of the stock itself. According to Irfan Syauqi it is forbidden in Islam. For it in the process of stock trading, the issuer gives authority to the agent on the trading floor, then the agent in charge to bring together issuers with potential investors but not to sell and buy shares directly. Then the stock was sold / bought as stock is available and based on the principle of first come - first served.


Stock price developments in the conventional capital market has been separated from the intrinsic value that is triggered by speculative transactions, also emerged from the desire of the perpetrators at large so that stock prices continue to rise as suggested by Samuelson and Nordhaus that the rise in stock prices is not driven by increasing corporate profits and the number of dividends are distributed, but are driven by hopes and dreams of hunters share primarily from among the most common. Conditions like these are an easy target for the speculators who are very keen in analyzing market developments.


Also is common for players in the conventional capital market to buy some stock in one day (of course with an estimated share price continues to climb - the bull market) such as the total value of Rp 100 million in capital in the hands of only $ 10 million in which the shortcomings of Rp 90 million (90%) loan from the bank. He dared to bear the burden of interest because they thought possible in one day or the next few days, or one week to one month later the stock price continues to rise.


In trading Islamic bonds, according to Gunawan Muhammad should not be applied at a discount or premium rates are commonly done in conventional bonds. Principles of Islamic bond transaction is al-Eve (transfer service or transfer of receivables with dependents for the results), so the sale of Islamic bonds may only be at the nominal price of redemption of maturing bonds.


As for the trade Syariah Fund, an investment manager offering mutual fund buyers who are short-term Islamic money market and long-term Shariah Fund in the stock market. For example, allocates 80% Danareksa Sharia investment in stocks and 20% in money market or debt securities. Gains derived by investors in mutual funds is Sharia is very dependent on how the investment manager to invest funds under its management.


3. The Islamic capital market of Islamic Shari'ah
To assess the Islamic capital market, according to the authors is very important for us to examine the institution (entity) called a limited liability company (PT) because the company has only an issue of shares and the issuer mencatatkannya on the stock exchange for trading, the stock also is the most important instruments traded in capital markets.


Although the concept of Islamic capital market noted that the shares traded must come from companies engaged in sectors that meet the Islamic criteria and free from usury elements, as well as the stock transactions made by a variety of practices to avoid speculation, it still does not distinguish the Islamic capital markets with capital markets thoroughly conventional.


How business is conducted and how the activities of the corporate form are two different problems. Authors agree that an entity must be engaged in these sectors and transaction mechanisms that allowed the Islamic Shari'a. It's just that the author does not agree to form a limited liability corporation, let alone the issue is not touched in the development of Islamic capital market discourse as the main instrument is traded in the Islamic capital market is the stock while the share issue is itself a method of management of a limited liability company to obtain funding the normal course of business.


a. Terms of the Company (Shirkah) in Islam
Company (shirkah) in terms of language have meaning merging two or more parts that can not be distinguished from one part to another part. Meanwhile, according to the Personality ', an-Nabhani said that the company is a transaction between two or more persons who agree to do work that is the purpose of seeking financial gain.


Corporate transaction requires the consent and qabul as is done in other transactions in which one of them to invite others to conduct cooperation on an issue, so that the agreement is not enough just to have a deal for the company or provide capital for the company alone, but must contain the meaning of work in a business.


As to the legal requirements and whether the transaction is dependent on something corporation in the transaction, which is something that can be managed. Something that can be managed is something that can be represented thus binding on all parties to a corporation. Islam is allowed in the company can be classified into five types, ie, companies inan, abdan, mudaraba, wujuh, and mufawadhah.


Answer b.Tanggung Tterbatas the Limited Liability Company
Meanwhile, limited liability companies sleaze in the conventional economy lies in the limited liability. If the loss or bankruptcy of the company's creditors and other rights owners can not claim the limited company at all companies, regardless of their corporate duties. They can only sue for their rights limited to the remaining assets of the company. Thus the liability system is a systematic protection for owners and managers of corporate capital.


Sistem perseroan dengan tanggung jawab terbatas bertentangan dengan hukum syara' yang menuntut ditunaikannya seluruh kewajiban mereka terhadap pihak lain di dunia ini, sebagaimana hadits Nabi SAW yang diriwayatkan oleh Imam Bukhari dari Abu Hurairah: “Siapa saja yang mengambil harta orang dan bermaksud untuk melunasinya, maka Allah akan menolongnya untuk melunasinya. Dan siapa saja yang mengambil harta orang dan bermaksud merusaknya, maka Allah akan merusak orang itu.”


Juga dalam hadits yang lain dikatakan “Sungguh hak-hak itu pasti akan ditunaikan kepada para pemiliknya pada hari kiamat nanti, hingga seekor domba betina tak bertanduk akan mendapat kesempatan membalas karena pernah ditanduk oleh domba betina bertanduk.” (HR. Imam Ahmad dari Abu Hurairah).


“Perbuatan orang kaya menunda-nunda pembayaran utangnya adalah suatu kezhaliman.” (HR. Imam Bukhari dari Abu Hurairah).
“…sebaik-baik orang di antara kalian, adalah yang paling baik dalam penunaian hak (pembayaran utang, dan lain-lain).” (HR. Imam Bukhari).


c. Perseroan Terbatas Tidak Memenuhi Syarat Perseroan dalam Islam
Kebatilan perseroan terbatas yang lain adalah bahwa pihak-pihak yang ikut serta dalam perseroan terbatas meleburkan dirinya dengan jalan pembagian komposisi kepemilikan saham oleh para pendiri pada saat perseroan terbatas tersebut pertama kali didirikan, kemudian pihak yang datang belakangan dengan jalan membeli saham yang dijual manajemen perseroan terbatas pada saat IPO atau di pasar perdana, dan pihak yang membeli saham dari pihak lain di pasar sekunder. Dengan demikian di dalam perseroan terbatas tidak terdapat dua pihak atau lebih yang melakukan akad serta ijab dan qabul tetapi yang ada berupa pembelian saham oleh siapa saja sebagai kehendak pribadinya yang bersifat sepihak. Artinya untuk menjadi rekanan/patner bagi seseorang dalam suatu perseroan terbatas maka cukup baginya dengan membeli saham perseroan terbatas tersebut. Jelaslah kebatilan dalam perseroan terbatas tersebut karena tidak memenuhi adanya akad serta ijab dan qabul yang disyaratkan dalam Islam. Mereka yang ikut serta dalam perseroan terbatas hanyalah rekanan dalam modal (syarikul mal) saja. 


d. Perdagangan Saham Bertentangan dengan Syara'
Karena perseroan terbatas merupakan suatu bentuk perseroan yang batil, maka saham yang diterbitkan perseroan terbatas dengan tujuan menambah modal dan diperdagangkan dalam pasar modal menjadi batil pula.
Adapun pembahasan pembelian saham di pasar modal syariah harus dilakukan dengan tujuan berinvestasi bukan berspekulasi – artinya seseorang atau suatu badan usaha yang membeli saham berniat melakukan investasi jangka panjang – di mana fokus keuntungan yang ingin dia peroleh hanya dari pembagian deviden dan keikutsertaannya dalam perseroan terbatas dengan hak suara yang dimilikinya, maka itupun tidak menghilangkan kebatilan dalam pasar modal syariah. Karena apa yang dia lakukan dengan membeli saham tersebut sehingga berdasarkan hukum yang berlaku di negara yang bersangkutan dia memiliki hak milik terhadap suatu perseroan terbatas atau sebagai bagian dari orang yang turut andil dalam perseroan terbatas, namun tidak memenuhi syarat sah seseorang yang bergabung dalam suatu perseroan menurut hukum syara'.


Apalagi dalam prakteknya jual beli saham di pasar modal syari'ah sekalipun sangat sulit untuk menghindarkan dari kegiatan spekulasi, maksudnya sesuatu hal yang sulit untuk dicapai jika semua transaksi dalam pasar modal syariah didasarkan pada investasi jangka panjang. Karena perdagangan reguler yang dominan dalam pasar modal syariah bukan di pasar perdana tetapi di pasar sekunder. Di pasar sekunder inilah sangat terbuka bagi setiap pihak untuk ambil untung dengan melakukan transaksi jangka pendek dan di sinilah biasanya terjadi spekulasi.


Seandainya seluruh perdagangan saham baik di pasar primer maupun di pasar sekunder dilakukan atas dasar investasi maka kecepatan transaksi dan nilai kapitalisasi saham yang diperdagangkan akan sangat jauh berbeda dengan apa yang terjadi di pasar modal konvensional selama ini. Dengan asumsi ini maka dalam kacamata ekonomi sekarang pasar modal yang seperti itu tidak akan menarik minat banyak orang. Karena perdagangan saham terjadi dengan sangat lambat. Para investor yang ingin masuk dalam suatu perseroan harus menunggu suatu perseroan terbatas yang diminatinya menjual sahamnya di pasar perdana. Kemudian di pasar sekunder para investor harus menunggu dengan lama pihak pemegang saham suatu perseroan terbatas melepaskan sahamnya di lantai bursa.


Permasalahan muncul lagi dari emiten yang sahamnya diperdagangkan di pasar modal syariah. Meskipun pengelola pasar modal syariah sudah membersihkan emiten mana saja yang berhak masuk dalam pasar modal syariah melalui seleksi ketat. Akan tetapi ada satu yang bolong dari proses seleksi tersebut, yakni pembatasan suatu emiten tidak boleh terlibat transaksi dan utang piutang ribawi dalam batas-batas maksimal tertentu. Biasanya batasan aset yang mengandung riba adalah 30% dari total aset emiten. Muncul pertanyaan apakah terjamin aset suatu emiten yang mengandung unsur riba tidak lebih dari 30%.


Di sini permasalahannya bukan pada berapa persentasi unsur ribawi, sebab sedikit atau banyak yang namanya riba tetap haram. Dengan demikian saham yang diterbitkan dan diperdagangakan dari suatu emiten yang terlibat unsur ribawi menjadi haram. Sebab terjadi percampuran antara modal yang halal dengan modal yang haram, sehingga tidak bisa dipilah-pilah lagi mana modal murni dengan bunganya. Saat ini di Indonesia dan di belahan dunia lainnya, sangat sulit untuk menemukan suatu perseroan terbatas yang terbebas dari unsur-unsur ribawi. 

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Footnote
1) Anoraga, Pandji dan Pakarti, Piji. 2001, Pengantar Pasar Modal, Jakarta: PT Rineka Cipta.

2) Anwar, Farial. 2002, Wall Street, BEJ, dan Rupiah, Republika Online 29 Juli.

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