Investment Policies in ASEAN Islamic Countries: Learning From Indonesia Malaysia and Brunei

26 Nov 2014 Mukti Fajar Artikel, Diskusi, Makalah

Introduction

Facing the upcoming 2015, ASEAN countries have been preparing their self to face the ASEAN Economic Community, a regional pact that will unite all of ASEAN community into a big economic market. Each country is doing their best preparing their both internal and external aspects[1]. Internal aspect including the preparation of their superior national products and services, as well as preparing for the supported policies and economic-related administration procedures. Whereas, the external aspect is covering the inter-country survey process to study other’s countries economic situation and to know more about non-business matter such as government policies, political situation, as well as socio-cultural factors since these factors will affect the consumption pattern and market transaction process in society[2]. In more broaden of view, these factor will also affect the local government policies and industrial sectors.

This paper will be more focused on a review in the relationship between religious aspect and government policies as well as its effects on consumption and transaction pattern in ASEAN countries which’s their Moslem population is quite big such as Indonesia, Brunei and Malaysia.

Among ten ASEAN countries with total population reach 629.379.191 people, 281.204.233 people among it are Moslem community who live in Indonesia, Brunei and Malaysia. Indonesia with its population which reaches 251.160.124 people[3], 80% of them are Moslem community. This huge amount of people obviously becoming a huge economic market in ASEAN region[4] with total consumption amount up to IDR 360,000 T (USD 36 T) by 2030[5]. It is must be interesting to analyze the data from the aspects of the policy and consumption patterns as well as its transaction.

This paper will also discuss about investment topic which seen from Islamic perspective in Indonesia with some comparison with Malaysia and Brunei, specifically about some of these issues below:

  1. Principles of Islamic Law as a guidance for Moslem people in their actions
  2. Indonesia’s investment regulation (as well in Malaysia and Brunei) in Islamic perspective
  3. What kind type of investment in Indonesia (as well in Malaysia and Brunei) that suitable with Islamic perspective?

Therefore, the author will explain more about the issues mentioned above based on the Laws and also from qualitative as well as quantitative data.

Discussion

a. 5 Principles of Islamic Law (Sharia)

As a Moslem, it is an obligatory to live based on the guidance from the Holy Al Quran as well as from Al Hadist The Prophet Muhammad, The Messenger of Allah. This guidance is well known as Syari’ah or Islamic Laws.  Syari’ah can be defined as a law which set by Allah that covers all of aspects in human life, strictly applied and uncompromised[6]. In general, Al Quran and Al Hadist give a comprehensive and detail guidance for every Moslem, especially about (1) Worship, a way to worship Allah as a Creator by human being as His creatures. (2). Mua’amalah, is an interaction between human being including political interactions as well as criminal and civil laws, which explain the way of a Moslem do their relationship with other human being in the world. Furthermore, a Moslem must follow five principles of Islamic Laws as a barrier from the good and bad.

Five principles of Islamic Law[7]:

  1. Wajib (Obligatory), is an obligatory duty, the omission of which is punishable
  2. Sunnah (Desirable), is an action which is rewarded, but the omission of which is not punishable
  3. Mubah (Indifferent), is an action which is permitted and to which the law is indifferent
  4. Makruh ( Undesirable), is an action which is disapproved of, but which is not a punishable offence, thought the omission is rewarded
  5. Haram (Forbidden), is an action which is absolutely forbidden and punishable, and the omission is rewarded.

Those five principles are embedded in every aspect of Moslem’s live without any segregation (non-secularism). Every Moslem tends to do any kind of action which are Halal, Sunnah, and Mubah, while leaving out any action which is Makruh or Haram. This condition must be well understood as this is also becoming a main consideration for a Moslem while doing any business activity.

Besides Al Quran and Al Hadist, there is also a law called Ijtihad, which need to be obeyed as well. Ijtihad, generally defined as a process of legal reasoning and hermeneutics through which the jurist-mujtahid (Ulama) derives or rationalizes law on the basis of the Al Quran and Al Hadist. Ijtihad plays a role as supplementary yet important law for anything which is still unclear (Subhat). Technically, Ijtihad usually served as a Fatwa.  In Indonesia there are many Ulama (or Ulama council) from many Islamic organization such as Muhammadiyah or Nahdathul Ulama. Apart of that, there is also Majelis Ulama Indonesia (Indonesia Ulama Council), well known as MUI, which had been formally established by Indonesia Government since July 26th 1975. MUI has some duties such as :

  1. As the heir of Prophets’ roles (Warasatul Anbiya)
  2. As a Mufti ( the one who gives the fatwa)
  3. As a mentorandservant of the people
  4. As a reformer organization
  5. As a enforcer of Islam Rules  ( amar ma’ruf nahi munkar )

The MUI’s Ulama often hold a discussion and research on an issue and issued some fatwas afterward whether that thing is halal, sunnah, mubah, makruh or haram. A fatwa has a big scoop including worship procedures, entertainment criteria, religious sects, decideng the beginning of Ramadhan as well as industrial products. Even though these fatwas do not have binding force as well as formal state law, these fatwas are quite influence to Indonesia Moslem’s behavior. Besides the fatwas, MUI also has responsibility to issue the Halal Certificate for industrial products, both goods and merits[8].

b. Islamic Investment Regulations in Indonesia

Since its Independence Day on August 1945, although the historical record shows how strong the spirit of the Founding Fathers to make Indonesia as an Islamic state by entering the Islamic principles into the constitution which says: “The obligation to carry out Islamic law for followers”, Indonesia never been acknowledge as an Islam country.  However Indonesia has the largest Muslim population in the world, amounting to about 210 million, or more than 80% of the population of Indonesia. Indonesian legal system[9] also recognizes the existence of Islamic law.[10]

In general, the law and policy of investment in Indonesia is not explicitly say that the investment must be in accordance with Islamic law, although substantially there are considerations of sharia. According to the Investment law Number 25 year 2007 and Government Regulation No. 36 Year 2010 on the list of permitted and prohibited investments for foreign investment, in principle, all business should be invested in Indonesia except prohibited. Some of the prohibition is because it was considered to have strategic value, and environmentally harmful or haram in Islam.

Based on Presidential Regulation No. 36 Year 2010 on List of Closed and Open Investments there are just 6 barred sectors namely as follow[11]:

  1. Agriculture ( cannabis cultivation)
  2. Forestry (prohibited species and marine material making)
  3. Industrial sector (alcoholic beverages)
  4. Transportation (ground terminal)
  5. Communication (Satellite providers)
  6. Tourism ( museums)

Cannabis cultivation and alcoholic beverages are banned since it is categorized as haram in Islamic sharia.

Moreover in some provinces or districts with powerful Islamic movement, regional regulations are laden with Islamic values. Between the years 2004 -2009, there are fifty two Local Regulation have been published in various regions. The regulated issues are: gambling and prostitution prohibition, dress code for employee in public, prohibition of hotel guests who are not married, prohibition to open a restaurant in the daytime during month of Ramadan, a ban on selling alcoholic beverages and open places of entertainment and others[12].

In genereal. Malaysia and Brunei are having similar policy. For things that are prohibited by Islamic law there will be restrictions, although not banned altogether. However, there is an interesting phenomena about gambling business in Genting Higland Malaysia since it is generally known, gambling is something that is forbidden by Islam. It is turned out that gambling in Malaysia are conducted by the Chinese.

Lim Goh Tong , founder of Genting Group ( died on October 23, 2007 ) was very popular in Malaysia . He was considered successfully changed the juggle hills ” Genting Highlands ” which originally was nothing  into one of the best resort and tourism center of the most successful casino in the world. .After his death, this family business is run by his son Lim Kok Thay. Genting Group leader is positioned as one of the richest tycoons in the world with  total fortune of USD 360 million or IDR3.3 trillion . While the widow Lee Kim Hua , amassed a fortune of up to USD 4 billion or IDR 37 trillion . In March 1969, the Prime Minister of Malaysia Abdul Rahman announced the licensing of the senior Lim to build a casino . Genting Higlands growing rapidly with 14 million visitors annually. Because of the gambling business, the relationship between the government and Genting Higlands is up and down. In fact, Lim must renew licenses every three months. In every general election, the sin of gambling always be an outcry. In 1983, the Sultan of Pahang into the extent that prohibits Muslims with threats to three months in prison. However, this gambling business also give beneficial effect to Malaysia government. The Malaysia government earned USD 400 million annually from this gambling business, particularly from Genting[13].

Another thing that needs to be understood is about the investment and Moslems are the employment relationship. The Labor Law No. 13 of 2003 included some of the basic principles of Islamic Sharia into the working relationship between the company and employees. In Article 80, it is mentioned that “Employers are obliged to provide sufficient opportunities to workers / laborers to carry out worship required by his religion”, As an example, since a Moslem need to pray 5 times a day (Fajr, Dhuhr, Asr, Maghrib and Isha),  there is a need for them to have a break to do the praying at Dhuhr and Asr time which is still within the work hours. Likewise Moslems must perform once in a lifetime pilgrimage to Mecca for the duration of 20-40 days[14]. Meanwhile, according to Article 93 paragraph (2) letter (e) it is mentioned that during the worship, the company should not be cutting salary. In Article 153a quo paragraph 1 letter (c) it is mentioned that for employees who leave the work to do their worship cannot be dismissed. In Indonesia there are also many religious-related national holiday, as many as 12 days per year which is obviously considered as ineffective for business.

 

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[1] Mukti Fajar ND, AEC : Buntung atau Untung ? (fortune or mis fortune ?  ) , Kedaulatan Rakyat News Paper,  August 14th 2012

[2] The relationship between religion and economic market can affected each other, such as rituals and religious holidays has becoming a promising business commodities in Indonesia. See: Zulfadli, Religion, Market and Life Style, http://padangekspres.co.id/?news=nberita&id=781 also see: Khamami Zada, Faith Revolution , Modernity and Market , Jurnal Jamaah Islam Liberal

[3] This data was taken from  Indonesian  Board of  Statistic Centre (Badan Pusat Statistik) Indonesia in July 2013

[4] Indonesia is not an Islamic country but a secular one which has Pancasila as its state foundation which adheres to the belief of on God

[5]Trade Minister : People Consumption Increasing Tingkat Konsumsi Masyarakat Indonesia Meningkat (Minister of Trade : Consumption level of Indonesia citizen was increasing) , http://wartakota.tribunnews.com/2013/06/05/mendag-tingkat-konsumsi-masyarakat-indonesia-meningkat

[6] Werner Menski ,Comparative Law  in Global Context , Cambrid University Press : 2008 , p 395

[7] Angelo M. Vernardos, Islami Banking & Finance  in South East Asia :  Its Development & Future , Singapore, World Scientific Publishing ; 2005 , p 27

[8] http://mui.or.id/mui/category/tentang-mui/profil-mui

[9]The legal system in Indonesia consists of national law which is derived from the civil law, Islamic law and customary law. Although Islamic law only applied in private law and family law, but there is religious courts to resolve any cases of marriage problems, property and sharia economic disputes by Act No. 3 of 2006

[10] Under Article 1 number 21 and number 22 of Law No.. 11, 2006 on the Governing of Aceh, which reads as follows: “Qanun Aceh is regulations as similar as with provincial government regulation which regulates the government administration and the Acehnese people.” See: http://www.hukumonline.com/klinik/detail/lt50c91f228f796/keabsahan-ketentuan-pidana-dalam-qanun-pemerintah-aceh

 

[11] Based on regulation of the President Of The Republic Of Indonesia Number 36 , Year  2010 concerning Lists Of Business Fields That Are Closed To Investments And Business Fields That Are Conditionally Open For Investments mentioned that there are 17 sector are open to foreign investment with hundreds of business fields. Among them are agriculture, plantation, public works, trading, tourism, forestry, fishery and defense. Meanwhile  only 6 sectors business closed to foreign investment… Mukti Fajar ND, Foreign Direct Invesment In Indonesia: Opportunity and challenges, Paper International Seminar “Feeling Invesment Next Doors : Opportunities And Feedbacks from Three ASEAN Members , August 29 2012 at Emperor Room 1-2, Pacific City Club, 28th Floor, Two Pacific Place 142 Sukhumvit Road, Bangkok

[12] http://id.wikipedia.org/wiki/Daftar_peraturan_daerah_di_Indonesia_berlandaskan_hukum _agama

[13] Asia’s Gambler King from Genting Highlands, Link: http://bisnis.news.viva.co.id/news/read/155139-raja_judi_asia_dari_genting_highlands

[14] See Article 1 number 1of Act No. 13 year 2008 about The Implementation of Hajj. It is mentioned that The Pilgrimage or Hajj is the fifth pillar of Five Pillars of Islam which is obligatory, once for a lifetime, for every Moslem who are able to do it.