Problematics of Islamic Bonds from the Perspective of Islamic Law: An Analysis of DSN-MUI Fatwa No. 32/DSN-MUI/IX/2002

Problematika Obligasi Syariah dalam Perspektif Hukum Islam: Analisis terhadap Fatwa DSN-32-DSNMUI-IX-2002-2002

Abstract

Sukuk (Islamic bonds) are designed as a riba-free investment alternative; however, DSN-MUI Fatwa No. 32/2002 continues to require issuers to repay the principal amount to sukuk holders at maturity—a provision that avoids the term “interest” at the level of wording but potentially departs from the risk-sharing principle that constitutes the essence of mudharabah and musyarakah contracts. This study employs a normative-qualitative approach by examining Qur'anic evidence, Hadith, fiqh maxims (al-'ibrah bil maqashid wal ma'ani, al-ghunmu bil ghurmi, and al-kharaju bi al-dhaman), and the views of classical and contemporary jurists (Ibn Qudamah, Imam al-Nawawi, and Wahbah al-Zuhaili) to assess whether the sukuk structure stipulated in the fatwa is genuinely distinct from qardh (debt) or substantively resembles it. The findings demonstrate that, with respect to principal guarantees and the allocation of loss-bearing responsibility, mudharabah sukuk under Fatwa No. 32/2002 correspond structurally to conventional bonds and classical qardh rather than to the authentic characteristics of mudharabah. This finding is reinforced by Muhammad Taqi Usmani's empirical critique (AAOIFI, 2007), which observed that approximately 85% of global sukuk at that time were not fully Shariah-compliant due to a similar issue. The study concludes that an absolute obligation to repay principal in mudharabah/musyarakah-based sukuk negates the risk-sharing element and shifts the contract toward qardh bi manfa'ah, potentially involving disguised riba and thereby conflicting with maqashid al-shari'ah. Reconstruction of the relevant fatwa provisions is therefore necessary to ensure that venture-based sukuk are substantively, rather than merely formally and legally, Shariah-compliant.