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Kuliah 2 Regulatory Framework and Legal Issues for Islamic Financing

Universiti Kebangsaan Malaysia Faculty of Law Pursuing PHD Program in Law P58462
Musbri Mohamed DIL; ADIL ( ITM ) MBL ( UKM ) 1

Halangan-halangan yang ditempuhi oleh Bank-bank Islam dan perbankan Islam dalam memastikan semua operasi dan pelaksanaan berjalan mengikut kehendak Shariah adalah seperti berikut :a- Halangan Kefahaman Individu : Ketidakfahaman terhadap konsep dan pelaksanaan perbankan Islam menyukarkan pengamal Perbankan Islam untuk terus maju ke hadapan dan menyempurnakan ketapatan pelaksanaanya. Individu yang dimaksudkan di sini adalah :1.Pegawai dan Kakitangan Perbankan Islam sendiri ( Islamic Bankers) Masih ramai kakitangan Bank-bank Islam sendiri belum cukup faham perbezaan antara bank Islam dan Konvensional. Ini berlaku kerana kebanyakan kakitangan ini datang dari industri perbankan konvensional, justeru proses memberikan ilmu sebenar kepada mereka ini memerlukan suatu usaha yang sedikit panjang dan bersungguh.

2.Peguam dan Hakim Para peguam bertanggung jawab menyediakan dokumendokumen seperti kontrak dan lain-lain, ketidakfahaman mereka sudah pasti amat menyukarkan pelaksanaan perbankan Islam di kalangan masyarakat. Hakim pula akan membuat keputusan kiranya ada pihak yang mengheret Bank-Bank Islam ke Mahkamah, maka adalah malang kiranya pihak Hakim sendiri kurang faham tentang proses perbankan Islam. 3.Pelanggan Dan Penjual Terlampau ramai pelanggan, car dealer dan home developer yang masih tidak faham perbezaan antara kedua industri perbankan ini, ini menyebabkan ramai di antara mereka kerap menyamakan perbankan islam dengan konvensional, justeru apabila bank-bank Islam mengenakan banyak dokumen dan ditandatangani, ramai pula yang merungut dan akhirnya menjauhkan diri dari bank Islam.
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b- Halangan Undang-undang sedia ada Terdapat juga undang-undang yang menyekat kelancaran perlaksanaan konsep-konsep Islam dalam produk perbankan Islam, contohnya; Rules of the High Court, 1980 (yang mana tidak melindungi kepentingan dan keperluan perbankan Islam) dan begitu juga dengan beberapa klausa yang terkandung di dalam Kanun Tanah Negara National Land Code. Oleh yang demikian, masyarakat perlu memahami bahawa dalam keadan-keadan tertentu, contohnya dengan wujudnya batasan undang-undang seperti ini maka ia adalah suatu perkara yand berada di luar bidang kuasa dan kapasiti bank-bank Islam untuk bertindak, apatah lagi meneruskan usaha pengalikasian konsep perbankan Islam secara menyeluruh.

c- Halangan Kekuatan Asset Dari segi kekuatan aset dan kewangan, status aset-aset dan kewangan bank-bank Islam adalah masih baru dan berada di peringkat permulaan berbanding bank-bank konvensional yang telah lama bertapak dalam dunia perbankan. Ini sedikit sebanyak membataskan keupayaan bankbank Islam untuk mengusahakan sendiri perkara-perkara tertentu seperti mempunyai gudang simpanan kereta sendiri sebelum kereta-kereta dapat dijual kepda pelanggan, atau mempunyai pekerja khas yang ditugaskan sepenuhnya untuk menangani sesuatu urusan Musyarakah dengan pelanggan. Harapnya penerangan di bawah dapat difahami sebaiknya oleh rakyat Malaysia, terutamanya individu Islam. Maka keluarkanlah diri anda dari semua jenis urusan kewangan dengan perbankan konvensional yang diharamkan secara putus oleh Islam kerana ribanya.

MALAYSIAN STATUTES Islamic Banking Act 1983 Islamic Banking Business: Business whose aims and operations do not involve any element which is not approved by the Religion of Islam (S. 2) Mainly provides for the licensing and regulation of Islamic Banking business in Malaysia.License will be granted if the aims and operations of the banking business to be carries on will not have any element that is not approved by Islam and the articles of association of the bank concerned has a provision for the establishment of a Syariah advisory body. (s. 3 (5)) S. 13 A An Islamic bank shall seek the advice of the Syariah Advisory Council (establishes under CBMA 2009) on Syariah matter relating to its banking business and the Islamic bank shall comply with the advice of the Syariah Advisory Council.

Banking and Financial Institutions Act 1989 S. 124 (1) Except as provided in section 33, nothing in this Act or the Islamic Banking Act 1983 shall prohibit or restrict any licensed institution from carrying on Islamic banking business or Islamic financial business, in addition to its existing licensed business or any Islamic financial business. (4) Any licensed institution carrying on Islamic banking business or Islamic financial business shall comply with any written directions relating to the Islamic banking business or any other Islamic financial business, carried on by such licensed institution, issued from time to time by the bank, in consultation with the Syariah Advisory Council (7) (b) Islamic banking business has the meaning assigned thereto under the Islamic Banking Act 1983; and (c) Islamic financial business means any financial business, the aims and operations of which do not involve any element which is not approved by the Religion of Islam

Development Financial Institutions Act 2002 Nothing in this Act or the Islamic banking Act 1983 (Act 276) shall prohibit or restrict any prescribed institution from carrying on Islamic banking business or Islamic financial business in addition to its existing business, provided that the prescribed institution shall obtain the prior written approval of the Bank before it carries on Islamic banking business or any Islamic Financial business. (S. 129 (1)) BNM will issue directions on the conduct of such business (S. 129 (3)) Also the institution can consult the SAC of BNM on any matters related (S. 129 (4)) Government Investment Act 1982 Co-operative Societies Act 1993 and Bank Rakyat Act 1978

CENTRAL BANK OF MALAYSIA ACT 2009 (ACT 701) Islamic Financial business means any financial business in ringgit or other currency which is subject to the laws enforced by the Bank and consistent with the Shariah Islamic financial institution means a financial institution carrying on Islamic financial business financial business refers collectively to conventional financial business and Islamic financial business S. 51 (1) establishment of Shariah Advisory Council The Bank may establish a Shariah Advisory Council on Islamic Finance which shall be the authority for the ascertainment of Islamic law for the purpose of Islamic financial business.

S. 52 (1) Function of Shariah Advisory Council (a) To ascertain the Islamic law on any financial matter and issue a ruling upon reference made to it in accordance with this Part; (b) To advise the Bank on any Shariah issue relating to Islamic financial business, the activities or transaction of the bank; (c) To provide advices to any Islamic financial institution or any other person as may be provided under any written law; and (d) Such other functions as may be determined by the Bank. S. 53 Appointment of members to Shariah Advisory Council (1) The yang di-Pertuan Agong on the advice of Minister after consultation with the Bank, appoint person who are qualified in the Shariah or who have knowledge or experience in the Shariah and in the banking, finance, law or such other related disciplines. (2) Appoint a judge from High Court, the Court of Appeal or Federal Court or Shariah Appeal Court (3) Shall hold office on such term (4) Shall be paid such remuneration and allowances from the funds of the Bank

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S. 55 The bank and Islamic financial institutions to consult Shariah Advisory Council Relating to Islamic financial business ; and For the purpose of carrying out its functions or conducting its business or affair under this Act or any other written law in accordance with the Shariah 2. Any Islamic finanacial institution may Refer for ruling or Seek the advice Reference to Shariah Advisory Council for ruling from court or arbitrator S. 56 (1) ...any question arises concerning a Shariah matter, shall (a) Take into consideration any published rulings of the SAC; or (b) Refer such question to the SAC for its ruling.

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Effect of Shariah rulings S. 57 : any ruling made by the SAC pursuant to a reference made under this part shall be binding on the Islamic financial institution under section 55 and the court or arbitrator making a reference under section 56. Shariah Advisory Council prevails. S. 58 : Where the ruling given by a Shariah body or committee constituted in Malaysia by an Islamic financial institution is different from ruling given by the SAC, the ruling of the SAC shall prevail.

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The Bank to issue circulars, guidelines, etc., on Shariah matters S. 59 (1) bank issue written circulars ... To the Islamic financial business accordance with the advice of SAC (2) Islamic financial institution shall comply any circulars, guidelines or notice issued by the bank Any person who fails to comply will be liable to afine not exceeding three million ringgit. Promotion of Malaysia as an international Islamic financial centre S. 60 Bank cooperation with the Government and promotion of Malaysia as an international Islamic financial centre Malaysian Islamic Financial Centre (MIFC).

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Court of Adjudication and Cases Item 7 of Federal List, Ninth Schedule, Federal Constitution Paragraph 1 of State List, Ninth Schedule, Federal Constitution Shariah Court or Civil Court ? Tinta Press Sdn Bhd. V Bank Islam Malaysia Berhad [1997] 2 MLJ 192 (SC) Printing Equipment Default in repayment of monthly rentals. Ex parte Mandatory Injunction to repossess. Islamic Leasing or Loan ? On the balance of convenience.

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Affin Bank Berhad v. Zulkifli bin Abdullah [2005] MLJ 568 The case of Affin was an authority for the proposition that it would not be equitable to allow the bank to recover the sale price as defined when the tenure of the facility was terminated prematurely. Further, it was in the public interest that the Islamic Banking industry continued to flourish in this country and abroad. Adopting the interpretation given by the learned judge in the Affin case would enhance the process

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July 2008 Cases decided by KL High Court 12 cases Bank Islam (11) and Arab- Malaysian Finance (1) ABBA Decision of Datuk Wahab Patail Held: all ABBA practices in Malaysia are non Shariah compliance! Only principle sum can recovered Subsequently one more decision... Arab- Malaysia Finance Berhad v Taman Ihsan Jaya Sdn. Bhd. Ors [2008] 5 MLJ 631 ABBA some with novation (previous practice) some under current practice of Asset Purchase Agreement and Asset Sale Agreement Modified decision... Draws a different between ABBA by novation and ABBA by back to back sale and purchase

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(1) When dealing the cases involving Islamic financing facilities, the civil court functions strictly as a civil court and does not become a Syariah Court. The civil courts function, in this regard, is to render a judicially considered decision before it according to law and not apply Islamic law as if it were a Syariah Court. Its function is to examine the application of the Islamic concepts and to ensure that the transactions in the cases before it do not involve any element not approved in Islam (2) In Islamic financing there is nothing that prohibits the giving of a loan. It is only the riba element in the loan that is prohibited. Hence, loans without riba ie benevolent loans or qard al-hasan are allowed

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(3) The term ABBA is no more than a sale and deferred payment of the price as agreed to between the parties. As such, the selling price is ordinary paid upon delivery. However if the payment is to be made later, the seller is in effect extending a credit or a loan of that selling price. At the same time it must be remembered that the deferred payment of the selling price is a credit or a loan permissible only because no riba is charged. Furthermore, the key to argument that the ABBA scheme does not involve any element not approved by Islam is to read the PSA independently. Therefore it is essential to maintain a bona fide sale in order that the profit or selling price should not be an element disapproved by Islam. Even so, an interpretation of the selling price must not be such as to impose a heavier burden than on a loan with interest. (4) The court has the authority to look beyond the words of the agreement to the actual facts of the case in order to determine the substance of the transaction between the plaintiffs and the defendants before it draw any conclusions on the nature of the ABBA transactions. It is necessary to look beyond the labels used and look at the substance particularly in the light of the fact that the interpretation advanced by the plaintiffs resulted in the defendants being burdened with a debt far in excess of that if they had taken interest based on a conventional loan.

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(5) Thus when the bank became the owner of the property by a direct Purchase from the vendor or by a novation from its customer, as in the present cases, and then sold the property to the customer, the plaintiff interpretation of the selling price ought to be rejected and the equitable interpretation applied. Where the bank purchased directly from its customer and sold back to the customer with deferred payment at a higher price in total, the sale was not a bona fide sale but a financing transaction and the profit portion of such an ABBA transaction rendered the facility contrary to the Islamic Banking Act 1983 or the Banking and Financial Institution Act 1989, as the case may be. (6) Since the plaintiffs actions resulted most likely from a misapprehension rather then intent afterthought, the plaintiffs were entitled under s 66 of the Contract Act 1950 to a return of the original facility amount they had extended. It was equitable that the plaintiffs seek to obtain a price as close to, if not more than, the market price as possible, and account for the proceeds to the respective defendants.

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Arab Malaysian Merchant Bank Berhad v. Silver Concept Sdn. Bhd. [2008] 6 MLJ 295 ABBA by Novation Facility = RM 125,000,000 Amount to be paid = RM 216,875,000 Defaulted 22 months later Bank sought to recover RM 185,536,908.64 Customer argued that ABBA is illegal for it is a scheme to defraud the public. ABBA is actually a loan transaction with a fixed interest charged and not a sale transaction Also demanded rebate (ibra)

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Arab Malaysian Merchant Bank Berhad v. Silver Concept Sdn. Bhd. [2008] 6 MLJ 295 Held (1) While a question as to what was the amount due might arise in the event of an early termination, it was plain in this case that the date of payment was well past due which meant the agreed profit for the time period agreed to had already been exhausted and there could be no question that any of the agreed profit had not been re-earned by the plaintiff. (2) It was the defendant who sought financing. The ABBA facility was offered and the defendant accepted it. The defendant signed the novation agreement so that the plaintiff was the legal purchaser. It then on the same day bought from the plaintiff under the instalment sale agreement, giving the plaintiff a profit. Under the terms of the sale and purchase novation agreement and instalment sale agreement, the plaintiff had the right to cancel the ABBA facility upon defaulted. It was not for the defendant now to say it was a loan with interest to seek to avoid paying back. The defendant was estopped from denying liability.

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The Reality Documents or instruments to be used in Islamic transactions must be: In accord with Islamic law; In accord with the existing civil law; and Structured in such a way (e.g. As to form, manner of execution, registration) as to be enforceable in the civil courts. S. 55 of Islamic Banking Act 1983 Application of other laws An Islamic bank which is incorporated under the Companies Act 1965 shall be subject to the provisions of this Act, save that where there is any conflict or inconsistency between the provisions of the Act and the provisions of this Act the provision of this Act shall prevail What about other laws?

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Civil Procedure and Civil Law Act 1956 - Interest O83 r 3 (3) Rules of the High Court 1980 - Interest Principle loan sum . S. 14A of Stamp Act 1949 . S. 3 (g) and Schedule 2 of RPGT Act 1976 - Gains = gross income under ITA 1967 S. 2 (7) Income Tax Act 1967 Interest and not profit (also zakat) Malay Reserve Land Hire Purchase Act

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UK CASES Islamic Investment Company of the Gulf (Bahamas) Ltd. V. Symphony Gems N.V. & Others [2002] EWHC 1 Issue of construction of an Islamic transaction in the eyes of the UK court Held: a contract must be construed according to its term as an English law contract Shamil Bank of Bahrain v Beximco Pharmaceuticals Ltd and Others [2004] EWCA CIV 19, [2004] ALL ER (D) 280 (Jan) Issue of construction of the Islamic transaction in the eyes of the UK court Held : a contract must construed according to its term as an English law contract despite the fact it is subjected to the principles of Glorious Sharia.

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Generally: Proposals and Recommendations Setting up of an Islamic Law Bench or Division in the High Court or Setting up a Shariah Bench in the Federal Court Knowledgeable Judges Cosmetic and not getting to the root of Islamic Financial ? Extremely careful with legal documentations the substance and content must be truly Shariah compliance and not merely in name---Shariah knowledgeable lawyers during drafting & document preparation stage as well as litigation stage. Incorporate mechanism of calculation for ibra/muqasah or rebate into the agreement Specifically deal with the issue of ibra /muqassah or rebate Consequential amendments to related laws, rules and enactment Consideration of ADR (alternative Disputes Resolution) (Sulh) or at least arbitration in Islamic banking related disputes. Musbri Mohamed November 2011 Continue to Kuliah 3
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