The Existence of Trusts in Indonesian Shariah Law; Study on Law No.19 Year 2008 Regarding State Shariah Commercial Paper

Abstract

Financing as a method to seek capital inflow for a corporation has switched from debt based to become equity based. Equity based funding need not required the fundee pay a fix amount of interest meanwhile the fundee itself did not make profit. To obtain huge amount of equity funding, fundee need to make it through a collective investment scheme. Such a scheme was developed in the capital market under collective investment contract, which is based on the concept of “trusts”. Such interest-free based funding is also acknowledged in shariah law. In 2008 the Government and House of Representative of the Republic of Indonesia has issued Law No.19 Year 2008 regarding State Shariah Commercial Paper (State Sukuk). This research aims to seek that the concept of trusts can be found in shariah law, by analysing the Law No.19 Year 2008 as an example for discussion. This research is normative legal research. It used secondary data, consisting of primary legal sources, secondary legal sources and/ or tertiary legal sources that will explain the concept of trusts to fit into the conception of issuance State Sukuk based on the Law. Data, which were obtained through literature review, will be analyzed using the comparative approach. Researchers find and argue that the existence of State Sukuk cannot be separated from the existence of trusts. Even though the Law itself does not directly mentioned trusts as a concept but the acknowledgment of “wali amanat” in the Law is sufficient enough to prove the existence of trust in the Law. Wali amanat is the only institution that manages the State Sukuk for and on behalf of the investors without becoming the real owner of the State Sukuk itself.