This article is inspired from my discussion with Rob Baiton related to his post, Fatwa and Terrorism. The problem of terrorism is always an interesting theme for me, particularly because I absolutely hate terrorism (for whatever reasons) and because I wrote my thesis on the retroactive implementation of the Indonesian Terrorism Law to the 2002 Bali Bomb Case. In this case, retroactive implementation means that a law is being implemented to a case that occurred prior to the enactment of such law.

In my thesis, I analyzed the Constitutional Court decision which annul the above retroactive implementation, and after conducting an in-depth research including on the historical background of the non-retroactive principle of criminal law, I disagreed with such annulment. To cut it short, for me, when we are dealing with extraordinary crimes, we should also use extraordinary actions to combat them. This is not a place for someone to say something like: "then what would be the difference between us and the terrorist?" That might look interesting in a movie, but in reality, sometimes we are forced to do some radical things in order to put down dangerous and illegal actions.

Now, I will elaborate some of the basic ideas that have been previously discussed with Rob, i.e. what kind of policy which would work best to reduce terrorism, and whether we can use a law that penalizes people for a crime conducted by their closest relatives.

The Inside Mind of the Terrorists

Why were some people attracted to conduct terrorism? Why did they become terrorists? To this question, I would reply: poverty, low education, lack of affection, being depressed, and under constant oppression. Or in other words, terrorism are mostly being conducted by those who were considered as remnants of the world. Of course, for the terrorist leaders, the reasons might be slightly different, i.e. they must gain some benefits for doing terrorism, such as money and power.

In my opinion, religion teachings (or basically any type of ideology) are not a solid reason for conducting terrorism, they might be twisted to support terrorism, but they'll never be strong enough to bring people to actually "pull the trigger". And the reason is quite simple, no reasonable man having high level of education, good flow of income, lots of affection, living his life to the fullest with minimum or no oppression at all would do terrorism acts and wasting his life in the name of a religion unless he is crazy, absent minded, having some lack of mental capacity, or being brainwashed. It just doesn't make any sense. I'm a moslem, and if a clergyman comes to me and asks me to be ready to die for the sake of a crappy holy war, I would simply reply, "no thanks sir, I believe that the heavenly girls are currently reserved for you. So you should go first, remember, they are waiting, now shoo, shoo."

I always believe that most men will act based on the incentives provided to them, be it positive or negative, and terrorism is not free from these kind of incentives. As an example, why terrorist leaders and planners choose miserable men as their main target for brainwashing? Encouraging a miserable man to do a suicidal bombing must involve some good incentives, or else that man would not be willing to sacrifice himself. However, and this is the most important part, I'm quite certain that the costs for making a miserable man to sacrifice his life would be most likely cheaper than making a happy man to do the same act. Thus, there is a great incentive for terrorists to recruit the miserable men instead of the happy men.

So, What are the Incentives for the Miserable Men to Conduct Terrorism?

There are many incentives for miserable men to conduct terrorism. Being in their current state, that is having a miserable life, an option which will somehow make them a "hero" (by killing the enemy of the religion/ideology) and enable them to move to a better place (i.e. heaven, whatever the concept is) would be much appreciated. It is a general knowledge that people might experience a low mental awareness due to certain bad conditions, and during such period, the terrorist leaders will be most likely have the best chance to "brainwash" those poor people.

Another good incentive would be in the form of financial compensation for the families left behind. You see, it is common for the family members of the dead terrorist to receive a quite generous donation from the terrorist leaders to make sure that their future life will be secured.

Having all these kind of incentives, it is no wonder that some people would be willing to sacrifice their life. In some case, the benefit might be higher than the cost! Of course that is from the terrorist's point of view, not mine.

How Should We Prevent Terrorism?

We can say anything about the terrorist, saying that they are a bunch of cowards, losers, etc. But I don't think we can blame these guys entirely. Unless we can get and banish all the leaders, there is almost an unlimited supply for terrorists. It is too easy to find miserable men in any part of the Earth, there are too many people living in despair. In any case, picking one of them would not be that hard.

So what should we do? Surely, trying to banish terrorism by advancing the life of all people would not be a viable option, because I'm afraid that we can't achieve that even until the end of time. I understand that one of the proposed solutions is to cut down the blood supply of the terrorism, i.e. money by increasing legal enforcement to money laundering activities. This is good but I would like to propose another radical, if not crazy, solutions.

Why don't we enact a law which would "penalize" not only the terrorist, but also the closest relatives of such terrorist, i.e. parents, siblings, spouse, and children, of course provided that those terrorists have been deemed guilty based on a final and binding court decision. When I'm talking about "penalize," please don't associate it first with prison and any other type of torture. I could understand that the idea of punishing someone for the mistakes of other people is not generally accepted in this modern world (though I believe that this concept is still being recognized in some part of the world, including in some Indonesian customary laws, such as if a man conduct a certain type of crime, his family member must pay some fines in the form of cows to the village).

The form of sanction could be many. What I'm thinking right now would be a type of sanction which would cause some financial losses such as fines or additional rate of tax, and give peer pressures such as announcement of the name of the family members to the public. The most important thing is that these sanctions must be made known publicly as wide as possible to the society.

The Ratio for Giving Sanctions to Closest Relatives

Why give additional sanctions to the closest relatives? There is two basic argument for this, first, miserable terrorists who choose to end their life by their own choice would be most likely have no fear of death, instead they embrace death. Thus, even the death penalty would not be sufficient to cause fear to these kind of terrorists, and in some ways, it might even strengthen their conviction to die in the name of God or whatever they want to believe, making them something like a "hero." You could easily spot this from the trial of Bali Bombers, those who are convicted as the main culprits act as if they all are ready to die, some of them even make books about their so called "struggle" for an Islamic country! This is ironic, we want to make them feel sorry for what they did, not becoming proud of it.

That's why we should put our action to a different side, i.e. the closest relatives of those terrorist. With the current technology, it would be easy for us to find out the family member of convicted terrorists and this should be workable from practical point of view. From the terrorist view, family members are most likely important. It's human nature. Even the most cruel terrorists would not want something happen to their beloved ones. "God" might be important, but when they know that the government will target their parents, spouse, siblings and children, what will the terrorist do? Bringing all of them? For how far? Wouldn't that also limit their movement?

By giving a threat to the family members of the terrorists, I believe we can provide the best incentive to prevent terrorism, at least this can distract them from their movement.

Second, this policy might also provide an incentive to the rest members of the family to prevent any of their member to fall to fundamentalism trap. Since no one would like to bear the consequences of the actions of their "crazy" family member, supervision among family member should increase, and this might prevent the fundamentalism movement to spread its words. Government can not efficiently prevent fundamentalism movement, especially with the current technology. But closest relatives can, and they could actually do that efficiently, simply by putting more attention and affection to their family members, their beloved ones.

You Know, Your Idea is Still Somewhat Crazy

Yes, I know that this is a crazy idea. I would be glad to receive a better policy which would provide better incentives to each family in preventing their members from getting trapped by terrorist movement. So for know, I'll stick to this idea.

But, just to make it clear, my idea focuses on using the power of incentives in preventing terrorism, and other than using legalized sanctions, I'm also interested in using peer pressure method. Maybe it would be good if we have a great marketing team who will advertise the evil of terrorism, starting by having sad testimony from the family members of the terrorist. Yes, the terrorist, not the victim, remember to focus on their loved ones first, because for most terrorists, the victim will be considered as enemies who deserve to die, so focusing on them wouldn't work best to prevent terrorism from the terrorist own perspective. Anyway, hope it's useful and can generate a better solution from the readers.

Have you ever wished for immortality? Do you want to live forever and ever, having the luxury of doing whatever you want without any time constraint? I do, but I guess that the chance for achieving such immortality is too slim to be even considered by any rational being. However, other than any mythological creatures out there, there is an entity in this world that might actually have the capacity to achieve immortality. By this, I refer to corporations.

What Are Limited Liability Companies?
While the definition of corporations might slightly differ between various legal jurisdictions, it has several basic characteristics, i.e.:

The legal concept of corporations is unique, because it is considered as a somewhat "living entity" having certain rights and obligations, while in reality it is a business organization made from joint stocks owned by certain party(s). But, only because of such characteristics that corporations are able to have an immortal life and becoming an integral part of the capitalist system.

When Was The First Limited Liability Company Established?
According to Gower's Principles of Modern Company Law, the early concept of corporations can be found in the 15th century, notably on the limitation of liabilities of the owner of such corporations. The oldest known corporation is no other than VOC (Verenigde Oost-Indische Compagnie), the "evil" company that made a reign of terror in Indonesia, and which is also the first company to conduct public offering in this world. Since the establishment of VOC in 1606, the history of corporation has lasted for more than 400 years, and that is quite a long time indeed.

Why People Made Limited Liability Companies?
The logic is quite simple, corporations allow people to have the protection of limited liabilities in doing their business, they can be established for an indefinite period, and their existence does not depend on the existence of their owners. This means that it would be easier for the owners to calculate their risk of liabilities (due to the limited liabilities) and the business activities may continue even after all of the original founders have crossed to the other side, i.e. died.

Prior to the existence of corporations, each man is liable up to all of his assets in doing business activities with other parties. Thus, if something goes wrong, he will be responsible with his entire assets, and he faces the risk of losing everything. In addition, since most of the businesses are being privately conducted by individuals in the form of self-company or partnership, the death of the particular individuals will cause the self-company or partnership ceases to exist. The introduction of corporations solves the above problems, and whoever firstly made this concept must be a genius.

The Role of Law on the Establishment of Limited Liability Companies
Of course, people can't simply establish an corporations and declare that they have limited liabilities to their counterparts solely by themselves, people need some legal support to do that. Without any legal basis, you can't expect people to believe that an abstract entity such as corporations exists. In order to achieve that purpose, we will need the government to step in.

Again, this is another genius concept. By having a state law acknowledging corporations as legal entities and stipulating rules on corporations characteristics, establishment procedures, and its rights and obligations, the existence of corporations has been secured by the law, and no one can argue more on that. With the help of law, corporations are no longer abstract beings. They exist in the vicinity and they can act and enter into various transactions as if they are living persons.

Unfortunately, the concept of corporations is not without any flaws. As we shall see further below, 400 years of existence has brought many issues that might not be considered yet when the corporation is firstly established.

The Chase for Profits and The Impact of Immortality
From the very beginning, a corporation was created to be a profit oriented business entity, and the management of a corporation has an obligation to ensure that such purpose can be satisfied most of the time, if not all the time. Under Indonesian laws, the management of a corporation must act to the best interest of the corporation, which can be interpreted to also include the obligation of the management to ensure that the corporation can obtain sufficient income and profits for maintaining its going concern status, i.e. the ability of the corporation to continue functioning as a business entity for certain period without any threat of stopping or being liquidated.

So, the obligation of the management of a corporation to pursue profits is not a trick made by some evil businessmen, rather it is an obligation stipulated by the law itself. This brings us to an important issue. You see, by having the ability to live an eternal life, there is no limit for corporations in obtaining profits. And since it can't aged, the shareholders would expect the corporation to survive in any kind of condition for as long as it can be. To give incentives to the management, huge salaries and bonuses were given for those who were succeed to make the corporation profitable enough for the shareholders and for those who were failed, losing their position might be the smallest consequence. With this kind of approach, it is no wonder that in some cases, the lust for profit can evolve to a dangerous lust for everything as greed controls the management of such corporation, and when that happens, all would be fair and square enough as long as their lust can be satisfied. VOC would be a pretty example, among with various famous crumbled corporations like Enron and WorldCom.

Can we blame them for that? Not entirely, because whether you like it or not, it is their legal obligation to secure those profits, even if they need to trick everybody. In addition, as I've mentioned above, they were paid by a huge salary and bonus to ensure that the corporation is always profitable for the shareholders. So, do we have some clear incentives for the management to do otherwise? My guess is not, since while some penal sanctions and fines might be a threat to the management, as long as their compensation is highly enough to cover the risks of being sanctioned due to their actions, there would always be a incentive for them to take such risk. As mentioned by Gary Becker, an American Nobel Laureate, crime only happen because it "does pay." See his paper here for more information.

Proposed Policies
Then, what should we do? What kind of policy that should be implemented to solve this problem? First of all, any kind of solution that restricts the corporations ability to obtain profit would be horrendous and will not be accepted. Or can we try the policy used by the US Government with respect to companies that receive US Government's aid, i.e. giving some limitation to the amount of the salaries and bonuses that can be obtained by the management?

My reply is no. The Government shouldn't regulate on the maximum amount that can be obtained by the management. How can they know how to calculate the performance of each member of the management? How can they know that the payment of such huge salaries and bonuses are exceeding the fair limit? A policy like that might give a negative incentive to the management for not doing their best simply because they see that their good results will not be as rewarding as it might be if such regulation does not exist.

Having said the above, my proposed policy would be as follows:

1. Determination of the form and amount of salaries and bonuses of the management should be conducted by an independent committee within the corporations. This has been done in several Indonesian publicly listed companies, but have not been yet stipulated in a clear regulation. There is of course some additional costs for having this committee but there is also a good ratio for having this committee, i.e.: (i) ensuring that the management can receive a fair reward for their performances based on the calculation of those who are being involved with the corporation, (ii) preventing the management from creating salary and bonus policy that contravenes with the corporation and/or shareholders interests, such as giving excessive shares options with low price to themselves as their bonuses, and (iii) helping the shareholders who are not involved in day to day business activities of the corporation in understanding the performance of the management and how they should be rewarded.
2. The sanction for the management who breach the laws for the sake of getting profits should be higher than or at least equal with their overall compensation (this include their salaries, bonuses and any type of incomes that they receive due to their illegal acts). This proposed policy is made based on the following assumptions: (i) if their compensation is low, there would be less incentives for them to breach the law; and (ii) if the compensation is high, they will face the risk of losing such compensation or even a bigger amount if they're breaching the law for getting good performances or else for benefiting themselves. As an example: "if the management is deemed guilty for conducting certain amount of crimes, they would need to pay an amount equal to triple times of their total annual salaries and bonuses that they received for the preceding years." Of course, this policy would be only effective if there is a high rate of legal enforcement, something that might not be achieved efficiently as of today.

While some elaborations and implementing provisions are definitely needed for the above policies, I do hope that the ideas presented here can contribute to the development of better policies in managing the balance between lust for profit and the business sustainability of corporations.

In Part I of my article, we have discussed two of the major challenges that are being currently faced by the Indonesian Islamic banking industry, the taxation and regulatory issues. In this article, we will discuss the remaining two challenges, i.e the risk management issues and the segmentation and marketing issues.

1. Risk Management Issues

We will start our discussion by asking this question: "Why murabahah financing sits at the top of Islamic banking financing products in Indonesia?" As of June 2009, the murabahah financing which involves a sale and purchase of assets between an Islamic bank and its customers with a deferred payments mechanism plus margin is the queen of all Indonesian Islamic financing products, comprising of approximately 57% of the total Islamic financing products. Meanwhile, the mudharabah financing (revenue sharing financing) and the musyarakah financing (joint venture financing) only comprise 21.6% and 14.5%, respectively, of the total Islamic financing products.

To be honest this is not a shocking result, and as I will further discuss in this article, the above result is none other than a logical consequence of the current structure of the Islamic banking industry risk management which is actually being supported by the current regulations of Bank Indonesia.

1.1 The Problem of Mudharabah and Musyarakah Financing's Risk Management

Most of us know that Islamic banks should be famous for their profit sharing concepts in doing their business, which is reflected in the mudharabah and musyarakah financing products. However, in reality, these products have two critical issues related to the risk management of such financing.

First, these products use revenue sharing mechanism, which means that the Islamic bank will only receive revenues if the actual business of the customer produces revenues. Any losses caused due to business losses of the customer shall also be borne by the Islamic bank, provided that the amount of which shall not exceed the total mudharabah or musyarakah financing.

The above is correct under the Islamic law principle and has been adopted by Bank Indonesia regulation. No one should argue on that. But the problem is quite different for modern financing activities. Most of Islamic banks' source of funds comes from third party funds (as of June 2009, the third party funds comprise 76% of the total liabilities of Islamic banks). These are the funds of the Islamic banks' customers and are not actually owned by the Islamic banks.

From risk management perspective, putting money in a high risk business is unlikely, especially when the banks are mainly using other people's money and they will be responsible to return those funds. We must also remember that banking industry relies heavily on the people's trust. If people are losing their trust on the Islamic banking industry, it is possible for us to predict a financial collapse of major Islamic banks.

Second, the current regulatory regime limits the possibility of Islamic bank to execute the security (jaminan) for mudharabah and musyarakah financing products, and also limits the ability of the Islamic Bank to request for payment of losses. Again, this is in line with the Islamic law principles and no one should further argue on that. But, from risk management perspective, the risk of mudharabah and musyarakah is increasing. Not only that the Islamic banks are liable for possible business losses, they don't have an exit clause which can secure their financing.

What would be the logical consequences of the problems above? Islamic banks will not be using the mudharabah and musyarakah financing products as their main products, rather they will focus on financing products which are more secured for them, in this case, murabahah would be the proper choice.

1.2 Suggested Solutions

Why murabahah financing is widely used? Murabahah financing is flexible enough to be used for certain type of financing, ranging from working capital, investment and consumer finance. It is more secured because after the sale and purchase has been conducted, the customer will be indebted to the Islamic bank and the Islamic bank would be able to secure such financing by the customer's assets and then execute the assets in case the customer fails to pay its financial obligation. From any risk management perspective, it would be best for Islamic banks to focus on this financing product. And we can't blame them for this issue as there is indeed an inherent risk management problem with the mudharabah and musyarakah financing and we must work together to solve this issue.

Now, how can we claim that Islamic banks have a wide array of products where in reality the Islamic banks will focus on murabahah financing products? The solve this issue, we would need to amend the current regulations on Islamic banking products, especially to help the Islamic banks in reducing their risk with certain type of Islamic financing.

My proposed solution would be to make a clear regulation which can eliminate any bad incentives to the customer with respect to the mudharabah and musyarakah financing, i.e preventing them to make bad business decision which will resulting on losses to both sides. How can we achieve this? Some suggested solutions would be: (i) increase the Islamic bank's authority to review and be involved in the business activities of the customer, (ii) penalize the customer for conducting any material business decision without first consulting with the relevant Islamic bank, and (iii) enable the Islamic bank to execute the security for such financing in case the customer does not comply with the requirements stipulated by the relevant Islamic banks in doing their business.

With these solutions, we can expect that the business management of the customer will be handled in a more professional way and the Islamic bank will have an exit clause when they are dealing with bad customers. Further, by encouraging the Islamic banks to be more involved in the customer's business management, it would be easier for the Islamic bank to maintain its risk management and prevent bad business decision of the customer. An age of entrepreneurship may rise in Indonesia, if this can be conducted properly.

2. Segmentation and Marketing Issues

With a total assets representing only 2.64% of the total assets of the Indonesian banking industry (excluding the rural credit banks), the Indonesian Islamic banking industry still has a long way to go before it can dominate the market share in Indonesia. But how can this be happen when most of Indonesian citizens are moslem? The answer might lie on the issues on the Islamic bank segmentation and marketing. Apart from taxation, regulatory and risk management issues which might not be resolved directly by the Islamic banking industry (as government authorities involvement are needed), the segmentation and marketing issues are inherent issues within the core of Islamic bank industry.

From what I see until now, most of the Islamic banks in Indonesia do not have a clear segmentation or marketing policies, especially in getting new customers. This is not due to a cliche reason like the Shari'a bank is not aggressive enough in doing the marketing, etc. The main problem lies in the fact that most Islamic banks are not yet concentrating on getting specific customers and to certain extent are still being trapped with religious symbols and doctrines in doing their marketing activities.
On the segmentation issues, considering the number of Islamic banks' assets, it would be better for Islamic banks to focus on small to mid enterprises unless they have a huge amount of additional capital. And this is actually a potentially good business. Rather than competing with bigger conventional banks who have secured some loyal clients, creating new opportunities with new type of customers might be easier and can show some actual differentiation between Islamic banks and conventional banks in term of doing business activities.

In addition, some proposed plan on my mind for making specific segmentation would be: (i) Islamic banks could focus on micro financing using mudharabah and musyarakah financing products, since given the nature of these products, it would be best to diversify the financing to many parties to avoid high risk of default; (ii) Islamic banks could focus on targeting customers who like to have a secured financing liability, whereas in this case, murabahah financing products with its fixed margin system would be the best option to capture these kind of customers; and (iii) Islamic banks could also focus on assisting small to mid entrepreneurs in doing their business, becoming a "financial manager" for these kind of customers through mudharabah or musyarakah financing products, as this is possible under the current Bank Indonesia regulations.
On marketing issues, I've seen many marketing products in several branch offices of Islamic banks and can conclude that while it is good to tell people that Islamic banking products are the ones that have been blessed by God, it would be better to tell people that Islamic banking products are good and profitable.

I must say that it is ironic if Islamic banks are not focusing on marketing their competitiveness of their products. In term of savings and deposit products, Islamic bank offer a competitive rate of return with conventional commercial banks. Even in term of financing products, contrary to the common opinion that Islamic bank financing is a little bit more costly due to its fixed rate system, the margin rate of murabahah financing is fairly competitive with most of credit financing products and even lower compared to interest rate for consumer credit. I made all of these comparisons using Bank Indonesia's June 2009 Statistics.

To certain extent, I can understand why some of the Islamic banks are not focusing on this kind of marketing. After all, some of them are owned by the same party who own the conventional banks, which of course creates a conflict of interest. Creating a marketing strategy which shows the quality of Islamic banks to the highest degree would not always be acceptable by their colleagues in the conventional banks, thus, these Islamic banks can only focus on getting customers who use religious reasons rather than commercial reasons to become their customer.

In the end, what is truly matter when we are speaking about marketing is how the Islamic bank can provide marketing products that allow people to believe that Islamic banks are professional, accountable and profitable. It should be noted that Islamic banks are profit-seeking institution and should focus on getting those profits, because it is impossible to increase the market share of the Islamic bank if they can't obtain enough funds to expand their business.

For quite a long time, it is very common for us to hear critics saying that the Indonesian Islamic banking industry has failed to capture a bigger market share in Indonesia despite the fact that Indonesia is the biggest moslem country in the world. To certain extent, this might be true.

If we compare the total assets of Islamic banks (based on Bank Indonesia's Islamic Banking Statistic per June 2009, the amount of which is approximately Rp.55 trillion) with the assets of commercial banks (based on Bank Indonesia's General Banking Statistic per June 2009, the amount of which is approximately Rp.2,028 trillion), we will found out that Islamic banks' assets only represent 2.64% of the total assets of Indonesian banking Industry (excluding rural credit banks). True, that if we compare the current data with 2005's data, Islamic banks' assets have increased around 250%, but that is not significant enough if we see the total cumulative assets of the Indonesian banking industry.

Seeing this hard fact, what are actually the main challenges of our Islamic banking industry? What need to be done to surpass these challenges and how? In this article, I will discuss some of the most important challenges that are currently being faced by Indonesian Shari'a banks and some suggested solutions which may be considered in solving those challenges.

2. Major Challenges in Developing the Islamic Banking Industry in Indonesia