Indonesian Islam - TEXT PAGES 15/7/03 3:14 PM Page 209
OFFENCES AGAINST RELIGION
209
of Sh. Muhammad Bakh•t al-Mut•>• (1854–1935, Mufti of Egypt 1915–20) published in 1906.675 The date is significant: >Abduh had already published three fatåwå permitting insurance. Sh. Bakh•t’s fatwa may be read as a counter to the ‘modernist’ acceptance of Western ways of reasoning about money and the place of fiqh as the ultimate authority on finance and individual financial obligation. For him the fiqh must determine the issue, because if it does not, then Islam itself will have lost authority in a fundamental aspect of life. The issue, thus put, was not just about insurance but about the acceptance or rejection of non-Islamic criteria for defining obligation. Sh. Bakh•t chose the latter option, and his arguments are reproduced in full in the 1960 NU fatwå. Essentially, they reduce to two. First, a contract of life insurance has no class in fiqh. It is not a deposit, nor a surety (which requires a debtor, creditor and the surety), nor is it payment for damages, or compensation for breach of contract. It is not mudarabah (profit and loss sharing). Sh. Bakh•t is on good technical grounds from within fiqh texts. Second, insurance contracts are void as gambling. The whole fatwå is internally consistent and was adopted without amendment by the NU. This remained the NU position until 1992 when, in the 28th National Congress, the whole question was reconsidered in detail. The Congress began by defining insurance with reference to the criminal law of Indonesia (the KUHP), itself a paraphrase of the Dutch colonial law.676 The paraphrase reads: Insurance is a kind of contract in which the insurer connects themselves to the insured, receiving a certain premium, to indemnify them for a misfortune or loss of money which may occur.
This is not the whole of the article (246), but it sets a definition from which the NU Congress proceeds. There is no explanation for this particular passage being chosen by the Congress; something from the Burgerlijk Wetboek could have been more suitable, although this is speculation. In the event, the Congress went on to set out its position on insurance and types of insurance: Kinds of insurance: Financial insurance for loss of items due to disaster and loss or lowering of the value of items or loss of expected profit (the compensation does not have to be paid if no loss is incurred); Life insurance paid according to a contract on the basis of a person dying; Social insurance taken out by government insuring the populace which is traffic accident insurance, civil service insurance, workforce insurance, health insurance, army insurance (these can have financial and life insurance qualities). Insurance Law • Social Insurance—permitted on the following conditions: the insurance is not a contract but a cooperative society; it is carried out by the government which wears any loss and any profit is used in the interests of the populace.