Section 7: Trading Islamic Sukuks (Securitization)

Firstly:  Definition of sukuk linguistically and technically.

Sukuk, linguistically: The plural of Sak which was a book that was written for contracts. Salaries were called Sikak because they were written. [2158] Refer to: ((Taj al-Arous)) by Al-Zabidi (27/243), ((Al-Nihayah)) by Ibn Al-Athir (3/43), ((Journal of Islamic Research)) (39/323).

Sukuk, technically: Financial documents of equal value, representing common shares in the ownership of objects, benefits, services, or the assets of a specific project, or private investment activity. [2159] See: ((Sharia Standards)) (P. 467).

Secondly: Definition of securitization (Islamic securitization) [2160] Characteristics of Sukuk:  a. Sukuk represents a common share in actual ownership.  b. Sukuk is issued on the basis of a Shariah contract and takes its rules.  c. The elimination of the manager's guarantee (trader, agent, or managing partner).  d. Sukuk participates in the entitlement of profit by a specified ratio and bears the loss to the extent of the share the Sukuk represents. It forbids its holder from obtaining a predetermined percentage of its nominal value or a lump sum.  e. Fully bearing of the investment risks.  f. Bearing of the obligations and ramifications ensuing from the ownership of assets represented in the Sukuk, whether these obligations are investment expenses, a drop in value, or maintenance expenses. See: The General Assembly's decision number 178 (4/19), ((Journal of Islamic Jurisprudence Council)) Nineteenth issue (2/1208).

Securitization (Islamic securitization) is issuing financial documents or certificates of equal value, representing common shares in the ownership of assets (objects, benefits, rights, or a mixture of assets, benefits, money, and debts) that already exist, or will be created from the proceeds of subscription, and are issued in accordance with a Sharia contract. [2161] See: The General Assembly's decision number 178 (4/19), ((Journal of Islamic Jurisprudence Council)) Nineteenth issue (2/1207).

Thirdly: The ruling on trading Islamic Sukuks (securitization) [2162] . Sukuk must comply with the rules outlined in the International Islamic Fiqh Academy's decision number 30 (3/4):  a. If the components of Sukuk are still money, then exchange rules apply.  b. If the assets have become debt, as is the case in a Murabaha sale, the rules for dealing with Sukuk debt apply, prohibiting except with the equivalent on a basis of transfer.  c. If the Mudaraba capital contains mixed elements of cash, debts, tangible goods, and benefits, then it is permissible to trade Mudaraba Sukuk according to the agreed-upon price, provided that the majority in this case are tangible goods and benefits. See: The Assembly's decision number 30 (3/4) and this was mentioned in decision 178 (4/19) on Islamic Sukuk (securitization).  

It is permissible to issue and trade Islamic Sukuks (Securitization) for assets, such as assets, benefits, and services. This is done by dividing them into equal shares and issuing Sukuks for their value. As for debts in receivables, it is not permissible to securitize them for the purpose of circulation. This was stipulated in a decision by the Islamic Fiqh Academy of the Organization of the Islamic Conference [2163] See: Decision number 178 (4/19), ((The Journal of Islamic Jurisprudence Council)) Nineteenth issue (2/1207). and the Accounting and Auditing Authority for Islamic Financial Institutions. [2164] As stated in the Sharia Standard number 17 by the Accounting and Auditing Organization: "It is permissible to securitize (tawriq) assets of tangible goods, benefits, and services, by dividing them into equal shares, and issuing Sukuk with their value. On the other hand, debt in liabilities cannot be securitized (tawriq) for the purpose of trading." ((Sharia Standards)) (P. 472).

This is due to the following: [2165] Resolution No. 178 (4/19), ((Journal of the Islamic Jurisprudence Academy)) Issue Nineteen (2/1208).

Firstly: Sukuk are issued on the basis of a Sharia contract

Secondly: Each share of the Sukuk bears the loss and takes from the profit according to its share. This is without specifying a percentage in advance, and this is the meaning of mudarabah.

Thirdly: It is an investment in which the owners of the sukuk bear the full investment risk. This takes it away from usury.

Fourthly:  Muqaradah Sukuk (Muqaradah bonds)

1-  Definition of Muqaradah Sukuk (Muqaradah Bonds)

Muqaradah Sukuk (Muqaradah Bonds) in technical terms: They are an investment tool based on dividing the loan capital (Mudaraba) by issuing ownership deeds on the basis of units of equal value. They are registered in the names of their owners, as they own common shares in the mudarabah capital and what is converted into it, in proportion to each of their ownership in it. [2166] Decision number 5- dated 4/8/1988 ((Journal of the Islamic Fiqh Assembly)) fourth issue (3/2161-2162).

2-  The ruling on Muqaradah Sukuks (Muqaradah bonds)

It is permissible to trade Muqaradah Sukuk (Muqaradah Bonds) in the markets if they are subject to Sharia controls. It was stipulated in a decision by the Islamic Fiqh Academy of the Organization of the Islamic Conference. [2167] The decisions of the Islamic Fiqh Assembly affiliated with the Organization of Islamic Cooperation came in Decision number (62/11/6) regarding (documents); as follows: (Among the alternatives for prohibited documents - whether issued, purchased, or traded - are documents or sukuk based on the principle of Mudarabah for a specific project or investment activity, so that the owners have no fixed interest or benefit, but rather a share in the profit of this project proportional to their ownership of these documents or sukuk. They only receive this profit when it is actually realized. This can be implemented using the format adopted in Decision number (5) of the fourth session of this assembly regarding Mudarabah documents). ((Journal of the Islamic Fiqh Assembly)) sixth issue (2/1726).­­ And in Decision number (5) dated 4/8/1988, regarding Mudarabah documents and investment documents in its fourth session held in Jeddah, Kingdom of Saudi Arabia, from 18 - 23 Jumada al-Akhirah 1408 H, corresponding to 6 - 11 February 1988. In it: (The accepted form, in general, for Mudarabah documents must have the following elements: The first element: The document must represent common ownership in the project for which the sukuk are issued or financed, and this ownership continues throughout the project from its beginning to its end. The second element: The contract for Mudarabah sukuk is based on the conditions specified in the issuance prospectus, and the positive action is expressed by subscribing to these sukuk, and acceptance is expressed by the approval of the issuing party. The third element: Mudarabah sukuk must be tradable after the specified subscription period, considering it authorized by the trader upon the issuance of the documents, with adherence to the following controls: A - If the pooled capital after subscription and before starting the work with the capital is still in cash, then the trading of Mudarabah sukuk is considered a cash exchange, and the rules of exchange apply to it. B - If the pooled capital turns into debts, the trading of Mudarabah sukuk is subject to the rules of trading in debts. C - If the pooled capital becomes mixed assets of cash, debts, goods, and benefits, it is permissible to trade Mudarabah sukuk according to the agreed-upon price, provided that the prevailing element in this case is goods and benefits. However, if the prevailing element is cash or debts, the legal rules in trading are considered. The fourth element: The one who receives the subscription proceeds in the sukuk for investment and establishment of the project with them is the trader, i.e., the participant in Mudarabah. He owns the project only to the extent that he contributes by purchasing some sukuk. He is a capital provider with what he contributed, in addition to the fact that the trader is a partner in profit after its realization, in proportion to the share specified for him in the issuance prospectus. His ownership in the project is based on this basis. And that the hand of the trader on the subscription proceeds in the sukuk and on the project's assets is a trustworthy hand guaranteed only for a reason from the reasons of legal guarantee). ((Journal of the Islamic Fiqh Assembly)) fourth issue (3/2161-2163). This is because it is based on mudarabah for a specific project or investment activity, so that its owners do not have beneficial or a definite benefit, rather they are only entitled to a portion of the profit that’s proportional to the amount they own of these bonds, and they will only receive this profit if the process takes place [2168] See: "Magazine of the Islamic Fiqh Council" number six (2/1726). .