July – December 2015
Ramadan - Shawwal 1436 - Rabi Al Awwal 1437
ISSUE NO. 193

PUBLISHED SINCE 1992
NEWHORIZON

GLOBAL PERSPECTIVE ON ISLAMIC BANKING & INSURANCE

Analysis: A Shari’ah Analysis of Murabaha Transactions; As Exectued in Islamic Financial Institutions
Academic Article: Challenges of Realising Maqasid al Shari’ah (Objectives of Shari’ah) in the Islamic Capital Market: Special Focus on Equity-Based Sukuk
Food for Thought:Currency and Purchasing Power: Some Shari’ah Concerns
Country Focus: Islamic Finance in Sub-Saharan Africa
Point of View: Maqasid al Shari’ah and the Financial Crisis
IIBI Lectures
IIBI Awards
Book Review

NEWHORIZON    July – December 2015 CONTENTS

Features



A Shari’ah Analysis of Murabah Transactions: As Executed in Islamic Financial Institutions

Syed Ehsan Ullah Agha analyses the challenges of practising genuine profit and loss sharing on the asset side of Islamic finance with particular reference to murabaha transactions.


Challenges of Realising Maqasid al-Shari’ah (Objectives of Shari’ah) in the Islamic Capital Market: Special Focus on Equity-Based Sukuk

Dr. Asyraf Wajdi Dusuki’ argues strongly for Islamic financial institutions not only to conform to both the form and substance of Shari’ah, but also to the economic substance of Shari’ah in pursuit of economic and social justice. Unless Islamic finance strives to achieve these outcomes, he suggests the industry is merely an exercise in semantics.

Currency and Purchasing Power: Some Shari’ah Concerns

Hifzur Rab addresses the question of whether currency should only be gold or silver or whether other measures of value are acceptable.

Islamic Finance in Sub-Saharan Africa

This report takes a broad look at the whole of sub-Saharan Africa and the prospects for Islamic finance in the region. It includes profiles of three countries, which seem to be ahead of the game in Islamic finance – Kenya, Nigeria and Senegal. It concludes that the journey towards a robust and well-regulated Islamic finance industry in the region is likely to be a long one.

Maqasid al Shari’ah and the Financial Crisis

Abdulkarim Ramadhan, currently studying for the IIBI’s Post Graduate Diploma, presents the views of one of Islamic finance’s future practitioners on how the principles and ethics of Islamic finance could have helped to head off the 2008 financial crisis.


NEWHORIZON     Ramadan - Shawwal 1436 - Rabi Al Awwal 1437 EDITORIAL

Executive Editor’s Note

The Islamic finance industry does not exist in a vacuum. It can be affected by factors over which it may have little control. While it survived the 2008 global financial crisis virtually unscathed, the question that needs to be asked today is whether it will have such an easy ride through the current economic turbulence affecting markets across the globe and particularly the plummeting price of oil.

Many of the countries, which have been leading the development of Islamic finance are heavily dependent on oil revenues and involved largely in attracting wholesale and non-retail business. In comparison their market share in the retail banking business remains insignificant even in Muslim majority countries. The hard fact is that Islamic finance cannot afford to rely on the revenues of oil producing countries largely in the Gulf as oil prices have been in decline for the last 18 months, hit by two main factors – over supply and sluggish economic performance around the world.

There are also contradictory views on the impact of falling oil prices on the sukuk market. Some analysts think that oil-producing countries will seek to plug the hole in their revenues through sukuk issuance; others think that sukuk issuance will be depressed as governments pull back from major investment projects. Standard & Poors have even suggested that Islamic banks will also feel the impact as operating conditions deteriorate.

While some markets like Malaysia have invested a great deal to encourage the expansion of the retail Islamic banking business however, the long-term expansion of the Islamic finance industry will suffer if Islamic commercial banks fail to move increasingly to the mainstream, making offerings of Islamic retail banking products a major part of their core services, such as mortgages, savings, insurance and retail investment products that include loans.

‘Retail banking is the cluster of products and services that banks provide to consumers and small businesses through branches, the Internet, and other channels’. It is generally held that the principal attraction of retail banking is the belief that its revenues are stable and some analysts also claim that retail banking offers high returns along with low risk. Here too Islamic banks to achieve significant success will need to compete with conventional banks without compromising the integrity of Shari’ah compliance and the Maqasid al Shari’ah that has the potential to take advantage of the growing number of both Muslims and non-Muslims seeking ethical financial products and services. Among the drivers for demand is the requirement that Islamic banks must build their knowledge to be able to educate the consumer base on the strength of Islamic finance, how it works without interest and its true benefits. As part of the consideration it may be necessary to see some rationalisation in the industry resulting in larger, better capitalised organisations that emerge fitter and stronger, more able to take on their conventional counterparts.

Qayyum Signature

Mohammad Ali Qayyum
Director General
IIBI

Deal not unjustly, and ye shall not be dealt with unjustly.

Surat Al Baqara, Holy Quran

EXECUTIVE EDITOR
Mohammad Ali Qayyum,
Director General, IIBI

EDITOR
Andrea Wharton

IIBI EDITOR
Farida Rahman

IIBI EDITORIAL ADVISORY PANEL
Mohammad Shafique
Iqbal Khan
M Iqbal Asaria
Mohammed Amin
Stella Cox
Richard T de Belder
Ajmal Bhatty
Mufti Abdul Qadir Barkatullah
Dr Imran Ashraf Usmani

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This magazine is published to provide information on developments in Islamic finance, and not to provide professional advice. The views expressed in the articles are those of the authors alone and should not be attributed to the organisations they are associated with or their management. Any errors and omissions are the sole responsibility of the authors. The Publishers, Editors and Contributors accept no responsibility to any person who acts, or refrains from acting, based upon any material published in the magazine. The Editorial Advisory Panel exists to provide general advice to the editors regarding matters that may be of interest to readers. All decisions regarding the published content of the magazine are the sole responsibility of the Editors, and the Editorial Advisory Panel accepts no responsibility for the content.
NEWHORIZON    July – December 2015 News

IMF to Monitor Islamic Finance Industry

Speaking at the Global Islamic Finance Conference, co-organized by the IMF (International Monetary Fund) the Central Bank of Kuwait and the Middle East Centre for Economics and Finance (CEF) in November 2015, Christine Lagarde, Managing Director of the IMF said that Islamic finance has the potential to contribute to higher and more inclusive economic growth by increasing access to banking services. She also said that Islamic finance has also shown its value in infrastructure investment and promoting financial stability.

She sounded a note of caution saying, ‘Despite these important benefits, there is still a long way to go. Unlocking the potential of Islamic finance requires cooperation among all stakeholders, including the Islamic financial institutions, policymakers, regulators and international institutions, such as the IMF. The IMF’s engagement has been longstanding. Over the last several decades, the Fund has provided policy advice and technical assistance to its member countries in Islamic banking regulation, the development of sukuk markets, and monetary policy implementation.

She pointed out that the IMF has worked closely with key Islamic finance standard setters and other important stakeholders in the establishment of the Islamic Financial Services Board. She also noted that the Islamic finance industry has grown in recent years not just in the Middle East, but also in Asia and Africa and the considerable interest in sukuk issuance has risen in other financial centres such as the U.K., Luxembourg and Hong Kong. She said, ‘This growth has put an even greater premium on the Fund’s ability to provide consistent policy advice to our members in the context of our regular surveillance, our financial stability assessments and our technical assistance.

‘Going forward, we will be working toward taking an institutional view on better integrating Islamic finance into our surveillance work. This will help our membership better appreciate the developments in this fast growing area while providing comfort that any risks to financial stability are being monitored.’

Noor Bank Launch a European-linked Equities Index

Noor Bank have launched a Shari’ah-compliant and sustainable equities index linked to European equities designed exclusively for the bank’s high-net worth and priority banking customers. Noor Bank’s priority clients can now benefit from investing in a basket of 20 chosen European equities that conform to Islamic principles and have been carefully screened for sustainability criteria reflecting the bank’s core ethical values.

The Noor Bank Shari’ah Compliant Sustainable European Equities Index facilitates investors with access to a safer investment linked to European equity markets and presents them with an opportunity to increase their returns from this investment. The 100% capital-protected investment offers a fixed coupon for the first two years and the uncapped index performance at maturity at the end of three years.

Noor Bank’s Islamic structured investments allow customers to place funds with the bank and benefit from the opportunity to earn profits greater than those offered by regular savings products. For many individual investors capital protection is the most suitable option in the current economic landscape.

Bank of England Becomes Associate Member of the IFSB

As part of its strategy to broaden liquidity provision to the market, the Bank of England commenced work in the second half of 2015 to assess the feasibility of establishing a Shari’ah-compliant facility. The Bank recognises the challenges Islamic banks face in meeting their liquidity requirements with the currently limited range of options and notes that its existing facilities are not Shari’ah compliant, because they involve interest-bearing activity. (Currently the only liquidity instruments acceptable to the Bank of England are sukuk issued by the Islamic Development Bank, which is triple A rated.)

The Sterling Monetary Framework in particular is used as a mechanism by which to set interest rates. The arrangement of any Shari’ah-compliant facility will be a significant undertaking; it will involve careful analysis of, for example, pricing, terms and access and should therefore be seen as a medium term project. The Bank’s work is progressing and it intends to provide a further update in early 2016.

As part of the Bank’s broader engagement on Islamic finance issues, the Bank has become an associate member of the Islamic Financial Services Board (IFSB). The IFSB is an international body whose membership includes national regulators and central banks from around the world. The IFSB aims, among other things, to promote the development of a prudent and transparent Islamic financial services industry, and to provide guidance on the effective supervision and regulation of Islamic finance firms.

IDB Calls on Banks to Develop Microfinance Initiatives

Speaking at ‘Islamic Finance: Meeting Global Aspirations’ in Kuwait, the President of the Islamic Development Bank (IDB) Group, Dr. Ahmad Mohamed Ali has called on experts in Islamic finance to take advantage of existing technologies and business approaches such as mobile banking to develop smart Islamic microfinance. Such efforts, according to Dr. Ali, could help the Islamic finance industry to be a leader in the global economy and stay ahead of the competition.

Dr. Ahmad Mohamed Ali emphasised that Islamic finance encourages a fair socio-economic system and can address financial inclusion via a two-pronged approach: (i) using risk-sharing financing instruments as viable microfinance, and micro-Takaful tools for individuals, micro-enterprises and SMEs; in addition to (ii) using Islamic redistributive instruments like zakah, waqf, sadaqa and qard-al-hasana to provide basic social safety nets (food, shelter, etc.) to the very poor in society, helping them graduate into economically active individuals. Dr. Ahmad Ali further stated that ‘providing microfinance to individuals lacking entrepreneurial skills may lead to less than the desired outcomes. What is needed is an integrated finance-plus approach, i.e. provision of financial services along with provision of related technical skills, regulatory support, assistance for product development and marketing and increasing market access to SMEs’ products.’

Dr. Ali further underlined the need to develop unique models for increasing access to finance for the SMEs, like creating dedicated SME-financing business units in Islamic banks and developing the capital markets, Islamic equity and venture capital funds for SMEs. Dr. Ali mentioned that as part of the next 10 years strategy, the bank has a dedicated pillar on social inclusion.

NEWHORIZON    Ramadan - Shawwal 1436 - Rabi Al Awwal 1437 News

Emirates Islamic Launch Islamic Banking Index

Emirates Islamic recently announced the launch of the Islamic Banking Index, a consumer-focused survey on Islamic Banking in the UAE. The new index will provide an annual benchmark of shifts in the ‘penetration’, ‘perception’, ‘knowledge’ and ‘intention’ of UAE consumers when it comes to Shari’ah-compliant banking.

The Islamic Banking Index was unveiled by Emirates Islamic CEO, Jamal Bin Ghalaita at the 2015 Global Islamic Economy Summit (GIES), who commented, ‘By analysing four key indicators, (penetration, perception, knowledge and intention), we have created for the first time, a benchmark that brings together perception and reality on the status of the Islamic banking industry in UAE. In doing so, the index reveals more than just the attitudes and opinions of people in the UAE towards Islamic banking – it also creates a pathway to the solutions that will enable us to drive the continued growth of Islamic banking in the UAE.’

Key Findings of the first Islamic Banking Index by Emirates Islamic™ include:

Penetration

• 47% of the UAE’s banking consumers have at least one Islamic banking product
• 34% of the UAE’s banking consumers have an Islamic product from an Islamic bank
• Islamic banking has higher shares in the auto finance and savings account product categories.

Perception

• Respondents perceive that Islamic banks support the community more and have lower transaction fees as compared to conventional banks
• Respondents, especially non-Muslim users, rate conventional banks higher on technology, innovation and financial soundness
• Overall, Islamic banks are more trusted particularly by users of Islamic banking products

Knowledge

• Six in ten respondents in the UAE have heard about at least one Islamic banking product structure
• Awareness of all Islamic banking product structures is higher amongst users
• Close to half of users (46%) and over a quarter of non-users (27%) of Islamic banking products can select the right definition of ‘murabahah’ as an indication of accurate knowledge

Intention

• 26% and 27% of the respondents have expressed their intention to acquire an Islamic and conventional banking product respectively in the coming six months
• 75% of all intenders are open to Islamic banking products. 86% of Muslim intenders and 59% of non-Muslim intenders are open to Islamic banking products
• 21% of the intenders say they only seek Islamic banking products, while 54% say they are open to both.

Commenting on the findings, Bin Ghalaita said, ‘With three out of four people in the UAE willing to consider an Islamic banking product, there is clearly an opportunity for the industry as we continue on our path to become the global centre of the Islamic economy. Trust, fairness and community responsibility are core pillars of the Islamic banking proposition and clearly people associate with that. Yet, the same consumers also want the best products, technology and service. This is also our call to action.’

The survey was conducted online in September 2015. There were more than 900 respondents aged 18+, with a bank account in the UAE and earning more than AED 5,000 per month. The sample includes all nationalities living in the UAE.

Islamic Banks Outperform the Conventional Sector in the UAE

In late November Fitch Ratings reported on the UAE’s Islamic finance sector, which has, according to them, continued to outpace the UAE’s conventional banking sector’s growth in 2015. The six largest Fitch-rated Islamic banks’ share of total bank gross loans was around 21%, up 3% in the first half of 2015 and they had around 20% of total assets at the end of that period. They expect demand for UAE Islamic banks’ lending to continue to grow, supported by wider acceptance and an expanding customer base. The Islamic banks’ impaired loans/gross loans ratio was 5.3% at end of the first half of 2015, down from 11.5% at the end of 2012.

Significant improvement continues and partly reflects increasing gross loans, but asset quality remains weaker than the conventional banks’ average of 4%-6%. This is partly due to the larger proportion of retail loans at the Islamic banks (including personal residential mortgages), which made up more than 40% of their loans at the end of 2014. This has resulted in vulnerability and potentially large losses compared with conventional banks when the cycle turns.

Positively for their ratings, Islamic banks have managed to reduce exposure to the real estate sector, which was historically higher than for conventional banks. UAE Islamic banks will benefit from the central bank’s decision in 2015 to include Shari’ah-compliant securities in the range of instruments it accepts as collateral for accessing liquidity. Islamic banks often hold these securities but, in the past, have had to hold liquidity either in cash or monthly offerings of central bank sukuk, with maturities of three to six months. This puts them at a disadvantage with conventional banks, which have a wide range of interest-earning liquidity management options.

There is no Shari’ah Council in the UAE; the central bank has proposed a Higher Shari’ah Authority to provide unified supervision and issue guidelines to financial institutions in Islamic finance-related matters. This means that Islamic banks have their own Shari’ah boards, which can give different fatwa on product or bank activities. The effect of the new authority would probably vary by bank, depending on whether the new rules increase or limit a specific bank’s product offerings.

EY’s World Islamic Banking Competitiveness Report

Shortly after the Standard and Poors Report was published, EY disclosed some of the findings from their World Islamic Banking Competitiveness Report at December’s World Islamic Banking Conference in Bahrain. They estimate global banking assets at $1 trillion. EY have shied away from making a forecast about asset growth in 2016; instead they have concentrated on profitability, forecasting that profits will more than double by 2020, from $12 billion in 2014 to $30.3 billion in 2020. That is not inconsistent with Standard & Poors forecast of slower growth in 2016; it could simply be interpreted as the result of Islamic banks getting smarter.

In terms of the share of participation bank assets globally, EY report that Saudi Arabia is by far the most dominant force with 33% of global Islamic banking assets, with Malaysia and the UAE coming almost equal second with 15.5% and 15.4% respectively. Kuwait and Qatar punch above their weight coming fourth and fifth with 10.1% and 8.1% respectively. The only negative comment is in relation to Turkey, where E&Y comment that prevailing geo-economic conditions have resulted in some erosion of their position. (Perhaps they are too polite to mention as a potential factor the mayhem surrounding the affairs of Bank Asya and its effective takeover by the Turkish government in 2015. For the full story see the last issue of NewHorizon.)

NEWHORIZON    July – December 2015 News

Malaysia Launch the Chartered Institute of Islamic Finance Professionals

In early November 2015 Malaysia launched the Chartered Institute of Islamic Finance Professionals (CIIF). At the launch Dato’ Muhammad bin Ibrahim, Deputy Governor of Bank Negara, said, ‘This marks a momentous occasion that reflects our collective effort to enhance the professionalism of the Islamic financial services industry. We are embarking on a long journey to create a new landscape of talent development, one which is permeated with a strong culture of professionalism, integrity and ethics. Greater professionalism among Islamic finance practitioners will instil greater confidence and capability in the Islamic finance industry to better serve public interest.

‘The recent global financial crisis has brought to the fore the importance of trust, confidence and integrity in the financial services sector. The banking industry is subjected to continuous scrutiny on their values, professionalism and work ethics. This has prompted a host of initiatives both domestically and globally, aimed to strengthen the industry, given the significant role financial institutions have to the broader interest of society and the overall economy. Maintaining public confidence is critical.

‘It is therefore in the industry’s interest to always place public trust above everything else, and only if we are able to do this, will we enjoy the confidence that ensures the long-term growth of the industry. Such expectations are even greater on Islamic finance given that the professed values of this industry are driven by the principles of Shari’ah, which promotes fairness, equality and justice. It is from this perspective that Islamic finance practitioners are duty-bound to observe the norms of high ethical conduct to uphold the values and the sanctity of Shari’ah. The need is even greater now, given the increasing complexities faced by Islamic finance brought about by more competition and evolving regulatory requirements, more offerings of sophisticated products and growing cross-border activities.’

He went on to say that these are the reasons why a decision was made to implement a strategic plan of action to develop true professionals to lead the industry to the next stage of development. These professionals should produce results that exceed expectations. They should also possess the highest degree of integrity in personal and business dealings. They are expected to adhere to ethically-driven values that reflect Shari’ah principles. They should be regarded as the true exemplars of Islamic finance. In short, they are the embodiment of what is good about Islamic finance.

He added, ‘The establishment of CIIF is therefore a significant milestone in our collaborative efforts to raise the bar for professionalism and ethics in the industry. We aspire for CIIF to become the global body for professionals in Islamic finance. As we envisage CIIF as the leading driver and advocator of professionalism and ethical conduct, we should expect the new body to adopt global best practices of similar professional institutions.’

Dr Zeti Akhtar Aziz to Stand Down

Dr Zeti Akhtar Aziz will stand down as Governor of Malaysia’s central bank, Bank Negara, in April, after 16 years in office. There is a great deal of speculation about who will replace her. It is believed that her own vote would go to her Deputy, Datuk Muhammad Ibrahim, but the choice ultimately rests with the Malaysian government, who will choose from a shortlist drawn by Bank Negara’s Governance Committee, which is made up of independent directors from the private sector.

Whoever succeeds her has a hard act to follow. She is widely credited with bringing much-needed discipline to the banking system and contributing significantly to Malaysia’s economic stability.

Agreement to Establish an Islamic Finance Industry Data Repository

The Islamic Research and Training Institute (IRTI), and member of the Islamic Development Bank Group and the General Council for Islamic Banks and Financial Institutions (CIBAFI) have signed a Memorandum of Understanding to establish an Islamic financial industry data repository. The online repository, which will be named the Islamic Financial Industry Intelligence (IIFI), aims to be a one-stop shop for comprehensive and reliable Islamic financial and non-financial data.

IIFI will comprise several integrated databases covering all components of the Islamic financial industry including banking, insurance and social finance. The first phase will be a database of Islamic banking information. The resource is expected to be useful to Islamic financial institutions, policymakers, regulatory authorities, industry professionals, academics and scholars. Its built-in features will include tools to allow report generation, data visualisation and the download of financial data sets.

Speaking during the signing ceremony IRTI Director General, Professor Omar said that the repository would make it easy for industry operators to get credible information to support their operations and assist academics and analysts in the production of high-quality research to advance the cause of Islamic economics, banking and finance.

NEWHORIZON    Ramadan - Shawwal 1436 - Rabi Al Awwal 1437 News

Islamic Finance – Growth Rates to Slow

Standard & Poors are forecasting that growth of the Islamic finance industry in 2016 is likely to slow to single figure improvements rather than the 10-15% rate that it has enjoyed in recent years. They say the industry has achieved critical mass Islamic finance assets worldwide exceed $2 trillion by their estimate, but they now think the industry faces challenges from the decline in oil prices, changes in the global regulatory framework for banks and insurance companies and its own fragmented nature.

They believe, however, that Islamic finance will have the impetus to continue progressing and maintain some growth. They suggest that governments in core markets see Islamic finance as a tool to maintain their investment spending, somewhat countering the negative impact of oil prices on their budgets. In addition, they think that regulatory changes could help the industry in resolving issues related to the lack of liquidity management instruments and applying more stringently its principle of profit and loss sharing. Standardisation of documents and Shari’ah ruling could enhance industry integration and free stakeholders’ capacity to focus on innovation. They expect the industry will be worth $3 trillion sometime in the next decade.

New Islamic Hedging Standard

The International Swaps and Derivatives Association, Inc. (ISDA) and the International Islamic Financial Market (IIFM) have published a new Islamic hedging product standard, the ISDA/IIFM Himaayah Min Taqallub As‘aar Assarf (Islamic Cross Currency Swap) for use in Islamic hedging transactions. The

announcement was made at the IIFM 33rd Board of Directors meeting and workshop hosted by The National Commercial Bank at its Riyadh regional office.

The published confirmation template is part of an ISDA and IIFM plan to provide the Islamic finance industry with documentation and product templates to manage risk in transactions arising mainly from currency and profit rate mismatches. The Islamic Cross Currency Swap (ICRCS) template falls under the ISDA/IIFM Tahawwut (Hedging) Master Agreement, a framework document that contains general terms and conditions and early termination and close-out netting provisions between transacting parties.

One of the objectives of entering into a Himaayah Min Taqallub As‘aar Assarf would be to enable a party to raise funds through a Shari’ah-compliant contract in one currency for a certain period of time against a Shari’ah-compliant contract in another currency. Profit rate, tenor and amount are all agreed between the two parties at the start of the transaction. It is used to manage and mitigate currency and rate risks associated with investments and is not intended for speculation.

‘With the expansion of Islamic finance into new territories and an increase in cross-border activities, certain transactions are being exposed to fluctuations in currencies and rate-of-return mismatches. IIFM has been playing a pioneering role in the Islamic hedging segment and, at an early stage, undertook the challenge of developing global standards in collaboration with ISDA. “ I am confident our ongoing efforts will play a critical role in shaping the industry, particularly in view of new regulations being introduced in G-20 economies”, said Khalid Hamad, Chairman of IIFM.

NEWHORIZON    July – December 2015 News

Islamic Banking Closures

DBS (Development Bank of Singapore) has decided to wind down its Islamic banking operation, the Islamic Bank of Asia, due to its inability to achieve economies of scale. The gradual winding down of the operation is expected to take two to three years. The Islamic Bank of Asia was set up in 2007 with an investment of $250 million (US) from DBS. The activities of the bank and, as many as possible of, its 33 employees will be absorbed by DBS. DBS will continue to develop and market Shari’ah-compliant products and services through its mainstream operations.

The International Bank of Azerbaijan has also announced that it will be closing its Islamic window operation opened in 2013. Just a year ago the bank had been lobbying for a change in the country’s laws that would have enabled it to establish the window as a separate, fully Islamic bank in order to expand Islamic banking in Azerbaijan.

Japan Establishes an Islamic Banking Bridgehead in Dubai

In July 2015 Japan’s Bank of Tokyo-Mitsubishi (BTMU) was granted a license by the Dubai Financial Services Authority to open an Islamic window. In October it launched its new business, which will initially focus on Shari’ah-compliant loan syndications. In the longer term it also plans to offer project financing.

Although this is BTMU’s first foray into the Middle Eastern market, they already have six years of Islamic banking experience through their Malaysia operation, which has been in operation since 2008. Not only has the Malaysian operation completed Shari’ah-compliant financing arrangements in Malaysia, Singapore, Indonesia and Brunei, they were the first Japanese commercial bank to issue sukuk in 2014

NEWHORIZON     Ramadan - Shawwal 1436 - Rabi Al Awwal 1437 News

In Brief

Following the granting of approval from the State Bank of Pakistan (SBP) MCB Bank is to merge its 34 existing Islamic banking branches to form MCB Islamic Bank, which will be a wholly-owned subsidiary of MCB Bank.

The Jakarta-based Financial Services Authority recently reported that Islamic banking assets in Indonesia fell 27% in the first eight months of 2015. According to a report in the Straits Times, it is believed that Indonesians tend to base their banking decisions on economic rather than religious factors, thus higher rates of return in the conventional banking sector mitigate against choosing an Islamic bank.

The Bank of Ghana said it was set to issue the first Islamic banking licences by the end of 2015, although by early 2016 no announcement had been made.

There is a suggestion that as part of the restructuring of Seychelles-registered Bank of Muscat International Offshore (BMIO) there may be an introduction of onshore banking including Shari’ah-compliant banking. (BMIO is 50% owned by Al Salam Bank of Bahrain. In 2014 BMIO was put under the control of the Central Bank of Seychelles following the breakdown of its foreign correspondent banking relationship. With an agreed reorganisation plan in place, BMIO is close to being returned to the control of its shareholders.) The main hurdle to such activity is the fact that Seychelles currently has no legislation to regulate Islamic banking, although recently the government have apparently commissioned a report into Islamic banking.

Abdul Latif Aljwahiri, the governor of Morocco’s Bank-Al-Maghrib confirmed at the Global Islamic Finance Conference that Morocco would licence its first Islamic bank in 2016. The bank has received licence requests from 15 foreign banks and three Moroccan banks.

Four Malaysian Islamic banks have formed a consortium to develop a multi-bank platform to market investment account products. The consortium is called Raeed Holdings Sdn Bhd. Its board is made up of the CEOs of the four banks in the consortium. It is claimed that the new platform will provide new financing opportunities for entrepreneurs and will aim to attract investment from private, public and institutional investors.

Reuters have reported that AAOIFI plan to review some of their major standards in 2016 to include sukuk and the sale of debt. The current sukuk standard is now 13 years old and in that time the market has moved on. The review is expected to cover the asset-backed and asset-based nature of sukuk, capital boosting instruments, beneficial ownership and non-viability clauses.

Suriname’s Trust Bank has announced that it is to become a fully-fledged Islamic bank. The announcement came following the signing of an agreement with the private arm of the International Development Bank, who will advise on the transition. Trust Bank believes this move will support their strategic decision to concentrate on the small-to-medium sized business sector.

The Council of the Islamic Financial Services Board (IFSB) has appointed its Chairman and Deputy Chairman for the year 2016. H.E. Tarek Amer, Governor of the Central Bank of Egypt will steer the Chairmanship of the IFSB, while H.E. Dr. Valiollah Seif, Governor, Central Bank of the Islamic Republic of Iran was appointed Deputy Chairman. The new appointments will take effect on 1 January 2016. In light of this appointment, the 2016 Annual Meetings of the IFSB will be held in Cairo, Egypt in April 2016, hosted by the Central Bank of Egypt.

The Turkish government has recently issued a circular on the formation of an Islamic Finance Coordination Committee (Faizsiz Finans Koordinasyon Kurulu) to accelerate the development of Turkey’s Islamic finance markets and to strengthen Turkey’s goal of becoming an international financial hub. The Islamic Finance Coordination Committee will be chaired by the minister responsible for the Under-Secretariat of the Treasury and will include top financial market regulators from the Ministry of Development, the Ministry of Finance, the Central Bank, the Banking Regulation and Supervision Authority, the Capital Markets Board, Borsa Istanbul, and the Islamic Banks Association of Turkey. The Islamic Finance Coordination Committee will also consult with non-governmental organisations, academics and professional organisations.

Qatar International Islamic Bank (QIIB) have signed an agreement with Moroccan lender Credit Immobilier et Hotelier to set up a bank in Morocco, subject to the appropriate approvals. QIIB will hold a 40% stake in the new bank, which is expected to open in the next few months.

The Ugandan parliament has amended the Financial Institutions Act to allow Islamic banking to be established in the country. Before the amendments can take effect, however, the central bank will need to set up a central Shari’ah board to regulate Islamic banks.

Austrian bank, BAWAG (Bank für Arbeit und Wirtschaft), is to pilot Islamic bank accounts from February 2016 targeting Austria’s 600,000 Muslims of mainly Turkish and Bosnian origin. It is the first Austrian bank to enter the Islamic banking arena. Three Shari’ah-compliant current accounts will be offered. They will neither pay nor charge interest, but instead will make a monthly charge to cover costs.

The central bank for the CFA currency region, which includes Benin, Burkina Faso, Cote d’Ivoire, Mali, Guinea-Bissau, Senegal, Niger and Togo, has signed an agreement with the private sector division of the Islamic Development Bank (IDB) to set up a fund to assist small and medium-sized businesses in the region. The IDB has pledged $30 million and will seek additional investors to bring the fund up to $100 million.

Cyprus-based Capital Index has launched a Shari’ah-compliant trading account, targeting clients from MENA. The index incurs no Swap or Rollover fees on overnight positions, thus meeting Shari’ah requirements.

According to a posting on President Kadyrov’s Instagram page, Chechnya plans to open an Islamic bank with assistance from the UAE.

Malta’s Stock Exchange has launched an Islamic equity index. The index has been developed with help from Dubai-based Shari’ah advisory firm Dar al Sharia.

Talks between the Malaysian Building Society and Bank Muamalat to create Malaysia’s biggest standalone Islamic bank have broken down.

Bahrain-based Al Baraka Bank has said that they plan to open an Islamic bank in France in 2017. They had planned to do this a few years ago but plans were put on ice due to the global financial crisis. They also plan to acquire an Indonesian bank in 2016 or 2017 and are in talks with the Indonesian central bank regarding these plans.

Turkish participation bank, Küveyt Turk, a subsidiary of Kuwait Finance House is to set up a portfolio management company, KT Portföy, subject to the approval of the Turkish Capital Markets Authority. They will be the first participation bank to play an active role in the Turkish capital market.

Russia’s first Islamic bank will open on March 2016 in the city of Kazan, capital of the semi-autonomous Republic of Tartarstan. The bank is to be called The Partnership Banking Centre and follows a new law enacted by the State Duma in late January.

Following the closure of the International Bank of Azerbaijan’s Islamic banking arm in October 2015, it is understood that the Azerbaijan government plans new legislation to allow interest-free banking in the country. A group of cabinet ministers are working with the Islamic Development Bank to frame the legislation. It is hoped that the first bank could be set up in 2017.

The subsidiary of the pan-African Ecobank in Cameroon has begun to offer a mudarabah savings account. This is the second bank in the country to offer Islamic finance. The first was Afriland First Bank, which has offered an Islamic current account for some years and in 2015 opened a branch dedicated to Islamic finance.

The Bank of London and the Middle East (BLME) is to acquire SME asset finance provider, Renaissance Asset Finance (RAF). The acquisition should be finalised in April 2016. BLME initially provided a finance line of £35 million to RAF in order to access and support the UK SME sector, complementing the Bank’s focus on the UK’s mid-market. RAF will remain a separate brand and legal entity in the market, in order to leverage its reputation and expertise as a specialist lender to the SME segment. BLME will maintain its focus on the UK mid-market, using its expertise in this sector to complement RAF’s experience and product offering.

NEWHORIZON    July – December 2015SUKUK UPDATE

SUKUK UPDATE

Sukuk Market Slows in 2015

At the beginning of December the latest Thomson Reuters Sukuk Perceptions and Forecast Study, published in conjunction with Qatar’s Barwa Bank, confirmed our gut feeling that the sukuk market has slowed in 2015. Up to the end of September 2015 issuance had dropped a very significant 38.6% compared to the same period in 2014.

At the beginning of 2015 forecasters were bullish about market prospects, but the dramatic fall in oil prices, combined with interest rate uncertainty, Bank Negara Malaysia’s decision to cut short-term sukuk issuance and the GCC preferring conventional bonds over sukuk in 2015 have acted as brakes on the market. Nevertheless Thomson Reuters are forecasting a growth rate of 15% for 2016, in part fuelled by the expectation that the governments of oil-exporting countries, hit by the fall in oil prices, will use sukuk to cover their deficits. (According to Bloomberg, the prospects for 2016 are already looking better, with issuance up to $5 billion in the first two months of 2016 compared to $1.8 billion in the same period in 2015.) The forecast for 2017 is a growth of just 8%.

Malaysia Raises Funds for Infrastructure Projects

Reuters has reported that DanaInfra Nasional Bhd, a company created by Malaysia’s finance ministry to raise funds for the country’s most extensive infrastructure project, said it would seek Islamic financing of up to 50 billion ringgit ($11.7 billion). The funds will be used to finance the completion of an existing line of Kuala Lumpur’s Mass Rapid Transit rail network, for which it has already raised 17.6 billion ringgit. It will also raise funds for a new MRT line which has an estimated cost of 42 billion ringgit and is to be completed by 2022. The issue will be fully backed by the Malaysian government.

AmInvestment Bank Bhd, CIMB Investment Bank Bhd, Maybank Investment Bank Bhd and RHB Investment Bank Bhd are the joint lead arrangers and joint lead managers for the programme. In addition, Affin Hwang Investment Bank Bhd, Hong Leong Islamic Bank Bhd and HSBC Bank Bhd are joint lead managers.

QIB Raise $750 million

Qatar Islamic Bank (QIB), rated A- S&P/A+ Fitch (both stable outlook), priced a $750 million 5-year RegS only sukuk offering. The sukuk was issued at par with a profit rate of 2.754%, representing a spread of 135bps over 5-year mid-swaps.

The sukuk came on the back of a comprehensive set of global investor meetings conducted in Singapore, UAE and London. The final order book closed in excess of $1.75 billion (US), representing an oversubscription of 2.33 times from 105 accounts.

Mr. Bassel Gamal, QIB Group CEO commented on this issuance: ‘We are very pleased to see that our return to the international debt capital markets was met by a strong reception. The success

of the sukuk is attested to by the strong investor interest, which resulted in an order book in excess of $1.75 billion (US), more than 2.33 times of the offered amount. This highlights the continued strong support and confidence of international, regional and local investors in the fundamentals of Qatar’s economy, its strong banking sector and Qatar Islamic Bank’s underlying credit quality. We are proud to have effectively re-opened the primary credit market for the regional banking sector after an inactive period over the last three months.’

Malaysian 2016 Budget Includes Incentives for Sukuk Issuance

In 2013 Malaysia launched a class of sukuk for sustainable and responsible or ethical investment, but to date there has only been one issue, which came in May 2015. In an attempt to kick start this sector Prime Minister Najib Razak announced in the 2016 budget that taxes would be reduced on the issuance costs related to these instruments.

Kuwait Seeks to Boost Sukuk Issuance

Against a background of falling sukuk issuance the Kuwait regulator has released new rules designed to encourage sukuk issuance. The new rules set out the conditions that sukuk must meet to be tradable. Sukuk will need to be approved by Kuwait’s CMA (Capital Markets Authority) and the central bank. In the past the lack of a legal framework within Kuwait meant that sukuk had to be issued in foreign jurisdictions.

The Kuwait government have not issued sukuk in the past, but it is thought likely they will be among the first to take advantage of the new rules to issue a sovereign sukuk. Falling oil prices have put pressure on the emirate’s finances and the government is seeking ways to offset their deficit.

King & Spalding Advise IDB

King & Spalding has advised the Islamic Development Bank (IDB) on the establishment of a US$25 billion sukuk programme, triple listed on the London Stock Exchange, Nasdaq-Dubai and Bursa Malaysia. The programme is rated ‘AAA’ by S&P and Fitch and ‘Aaa’ by Moody’s.

‘We are particularly delighted to have advised our longstanding client IDB on the establishment of what is to date the largest sukuk programme,’ said Rizwan H. Kanji, a debt capital markets partner at King & Spalding in Dubai, United Arab Emirates.

King & Spalding’s Kanji advised the IDB on the transaction with assistance from Dubai-based senior associate Hamed Afzal and Washington, D.C.-based transaction specialist Gina Bunker. The lead manager on the transaction was Standard Chartered Bank plc and dealers included CIMB, HSBC, National Bank of Abu Dhabi, Natixis and Standard Chartered Bank.

NEWHORIZON    Ramadan - Shawwal 1436 - Rabi Al Awwal 1437SUKUK UPDATE

SUKUK UPDATE

Oman Puts its Toe in the Water

In late October the government of Oman sold its first sovereign sukuk. The five-year, $517.17 million sukuk was oversubscribed 1.7 times. It received 22 orders from a mix of conventional and Islamic institutions. To accommodate the strong order book the Omani Ministry of Finance expanded the offer to £647.13 million.

In the wake of this issuance, in early 2016, Oman’s major telecommunications operator, Omantel, launched a five-year, dual-currency corporate sukuk worth $130 million. By early February it announced that it had abandoned its plans citing high interest rates offered by lenders. The funds were to be used to build a new headquarters for the part state owned organisation.

Kazakhstan Paves the Way for a Sovereign Sukuk

In November Kazakhstan’s parliament amended finance legislation that will pave the way for Islamic finance in the country. Reuters report that an adviser to the government of Kazakhstan has said that a sovereign sukuk could be on its way as early as March 2016. Details are sketchy, but the initial issuance could be worth $1 billion as part of a $3 billion programme. Kazakhstan, heavily dependent on oil revenues, has been badly affected by the fall in oil prices in 2015 and may view a sovereign sukuk as one way to plug the hole in its budget.

Côte d’Ivoire To Raise CFA 150 Billion Sukuk

Hogan Lovells has advised the Islamic Corporation for the Development of the Private Sector (ICD), as arranger, on the inaugural CFA150 billion (approximately $24.5 billion) sukuk offering by the Government of Côte d’Ivoire. The sukuk is an amortising sukuk al-ijara and is targeted at local banks and institutional investors.

Zaky Sow, Sukuk Project Manager for ICD commented, ‘We are delighted to have brought this ground-breaking sukuk to the market and to also introduce Islamic finance to Côte d’Ivoire. The sukuk opens up a whole new stream of investment into the country, which will ultimately benefit the people.’

Sharjah Issue $500 million Sovereign Sukuk

The first Gulf sovereign sukuk of 2016 was issued by the Emirate of Sharjah. Worth $500 million the five-year sukuk was just under two times oversubscribed. This compares with their 2014 issue of a 10-year sukuk worth $750 million, which was more than 10 times oversubscribed.

The difference in investor response is perhaps a reflection of nervousness caused by the slump in oil prices and regional political instability. Despite the more muted response to this issue it is likely that other Gulf countries will be looking to issue sukuk in 2016 as they struggle to cover budget deficits created by the falling oil prices.

Kuveyt Türk Issue Sukuk

Kuveyt Türk, the Turkish subsidiary of Kuwait Finance House have issued a 10-year sukuk worth $350 million to boost its capital; adequacy ratio. The yield is set at 7.9%. The issue will be listed on the Irish Stock Exchange.

Indonesia’s Financial Services Authority (OJK) Calls for Sukuk Incentives

The Jakarta Post has reported that the OJK’s Deputy Commissioner for Stock Market Supervision, speaking at a seminar in Jakarta, has called for more incentives to lift the

Indonesia sukuk market out of the doldrums. The sluggishness of the market was attributed to a lack of understanding about Shari’ah-compliant finance and the inadequate market infrastructure.

Turkey’s Ziraat Bank to Issue Sukuk

The Islamic division of Turkey’s state-owned Ziraat Bank has applied to sell sukuk worth just less than $502 million. No details are yet available for what would be the first sukuk to be issued by a state-run Islamic bank in Turkey. Ziraat are a fairly new entrant to the Turkish Islamic banking sector, having been set up in early 2015. They plan to have 170 branches by the end of 2018.

Hong Kong Considers Third Sukuk

Bloomberg has reported that Hong Kong is considering selling its third sukuk in three years. The first two sukuk raised $2 billion and were approximately three times oversubscribed. The announcement came in Financial Secretary, John Tsang’s recent budget speech. This is widely seen as further evidence that Hong Kong wants to establish itself as a key centre for Islamic finance in Asia.

In Brief

Jordan’s central bank is reported to be ready to issue a sovereign sukuk in the second quarter of 2016. The issue is expected to be worth $250 million JD (approximately $350 million). The proceeds will be used to purchase the National Electric Power Company and the Water Authority of Jordan.

In a statement to the stock exchange in March 2016 the board of Spichem (Saudi International Chemical Company) announced that they have approved the issue of sukuk. No details on the size and date of the issue are yet available, but they have appointed Riyad Capital and NCB Capital as lead managers.

Sime Darby Berhad has completed the first fund raising exercise under its Perpetual Subordinated Sukuk Programme, which is one of the group’s initiatives to manage its gearing level. The RM2.2 billion Perpetual Non-Call 10-year Subordinated Sukuk is the largest perpetual sukuk issuance globally by a non-bank, the largest Ringgit perpetual sukuk issuance so far and the first perpetual sukuk globally based on the Shari’ah principle of wakalah. The offering was more than 1.8 times oversubscribed, allowing Sime Darby to upsize and price the offering at the final yield of 5.65% per annum. Sime Darby plans to use the proceeds largely for the refinancing of its debt obligations.

Saudi Arabian Airlines plan to issue sukuk worth 5 billion riyals in the second or third quarter of 2016 as part of a sukuk issuance programme. The funds will finance the expansion of the aircraft fleet with the aim of operating 200 aircraft by 2020.

Axiata Group Berhad (Axiata) has successfully priced its 10-year $500 million sukuk, which will be issued via its wholly-owned Malaysian-incorporated special purpose vehicle, Axiata SPV2 Berhad. This is the third issuance under Axiata’s multi-currency sukuk issuance programme with an aggregate nominal value of $1.5 billion established on 17 July 2012. Proceeds of the sukuk issuance will be used to fund the proposed acquisition of Ncell Pvt. Ltd.

In March 2016 Dubai Islamic Bank (DIB) returned to the international debt capital markets with a five-year $500 million sukuk, the first GCC bank issuance since November 2015. The offering was 2.4 times oversubscribed, raising more than $1.2 billion from investors (62% MENA, 20% UK/Europe and 18% Asia). The level of interest in the issuance allowed DIB to tighten pricing from initial price thoughts of 5Y MS+245bps to +230bps.

NEWHORIZON    July – December 2015 TAKAFUL NEWS

Takaful: Global Challenges to Growth, Performance and Governance

‘Takaful: Global Challenges to Growth, Performance and Governance’ is a recent report developed and published by Hamdan Smart University in collaboration with the Dubai Centre for Islamic Banking Finance. It contains extensive information about the industry and its growth by sector and geography and most particularly the challenges it faces. The key challenges identified by the report come as little surprise. Takaful operations are small when compared to the conventional insurance industry. This means that it is currently impossible to achieve significant economies of scale, which affects the ability of takaful operators to offer really competitive pricing. The report also suggests that the small size of takaful operations means they have limited geographical reach. We would suggest that scale is only one issue affecting geographical reach; the other main issue is that the takaful model acceptable in one jurisdiction is not always acceptable in another.

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The lack of skilled personnel is another factor, which runs right through the sector from trained actuaries familiar with Shari’ah principles through Shari’ah scholars knowledgeable about the insurance industry to the staff needed by takaful operators to run their businesses. The latter may also have an impact on the limited distribution channels that characterise the industry. A shortage of skilled staff not only limits a takaful operator’s ability to expand its direct sales operation s, but also to develop the range of distribution channels, e.g. internet-based sales. Distribution channels are, however, also affected by the nature of the emerging markets, where many takaful companies operate. These markets do not have the mature networks of insurance agents that characterise Europe and North America.

Another very familiar challenge affecting takaful as well as other sectors of the Islamic finance industry is the limited range of Shari’ah-compliant investment opportunities. This particularly affects the life or family elements of the business, which need good, long-term investment instruments to underpin them.

Also familiar are the observations that takaful operators tend to mimic conventional insurance products rather than innovating and that, with the exception of Malaysia, they have poor corporate governance structures. (Bank Negara in Malaysia supports that country’s Takaful Association to promote good governance practices.)

The report concludes with the recommendations that the industry needs to look particularly closely at corporate governance if it is to fulfil its potential and because corporate governance is so closely linked with corporate structure, the industry also needs to look at this. The objective should be to achieve transparent governance and to give takaful members an effective collective voice.

Takaful Emarat Raise DH50 Million in Rights Issue

Takaful Emarat has raised Dh50 million during a successful rights issue, which was nearly 36.51% oversubscribed. This was the first tradable rights issue for a takaful insurance company in the UAE. The proceeds will be used to capitalise on the

company’s recent restructuring under a new management team and its return to operating a profitable underwriting model. The proceeds of the oversubscribed shares will be refunded to the shareholders after allocation of shares and the new shares shall be listed in DFM following SCA approval to list the new shares.

The new capital will be used to strengthen Takaful Emarat’s back office function and grow and develop its distribution channels and sales network across the UAE, in particular in the Northern Emirates. The capital will also be invested in the company’s digital and interactive client service technologies to ensure optimal customer service and efficient policy management. In addition, the funds will be used to streamline Takaful Emarat’s investment, ensuring a more stable and predictable income and return on investment.

Takaful Emarat’s Chief Executive Officer, Wael Al-Sharif, said, ‘As a business, we have excelled with this rights issue successfully raising Dh50 million with strong shareholder support, despite volatile markets. Takaful Emarat has delivered significant progress to date both from a financial and customer acquisition perspective, as we continue to expand our distribution channels and physical presence across the UAE. We are now uniquely well positioned to continue our growth trajectory as we focus on delivering maximum value for our shareholders and investors.’

ACR ReTakaful Holdings Clarify Position

In the wake of a downgraded rating from A.M.Best to B++ with stable outlook, ACR ReTakaful Holdings Limited has reiterated that the capital positions of its operating companies are strong. They said that it must be noted that the new ratings are not a reflection of concerns or issues with the solvency of ACR ReTakaful Berhad and ACR ReTakaful MEA B.S.C. (c). The B++ (Good) ratings are indications that the capital positions of the two retakaful operators are still regarded as strong and that confidence in the companies’ abilities to support their claims obligations remains intact.

In A.M. Best’s assessment report dated 18 December 2015, it noted the two retakaful operators’ low self-generated retakaful business volumes and high dependence on inward business from conventional affiliates. The rating agency also took into consideration the retakaful operators’ limited progress in establishing their standalone business profiles in the competitive retakaful market. At the same time, it described the companies’ risk-adjusted capitalisation as ‘strong’.

Alizz Islamic Bank and Takaful Oman Sign MoU

Alizz Islamic bank SAOG signed a Memorandum of Understanding (MoU) with Takaful Oman, the Sultanate’s first fully-fledged Islamic insurance provider, to provide the Bank’s customers with motor takaful policies at special rates. Takaful Oman will issue motor takaful policies from Alizz Islamic bank’s branches.

The picture below shows Mr. Salaam Al Shaksy, Chief Executive Officer of Alizz Islamic bank, and Sayyidah Rawan Al Said, Vice Chairperson and Managing Director of Takaful Oman signing the MoU at a ceremony held in Alizz Islamic bank’s Head Office.

NEWHORIZON     Ramadan - Shawwal 1436 - Rabi Al Awwal 1437 TAKAFUL NEWS

Commenting on the occasion, Salaam Al Shaksy noted ‘Both Alizz Islamic bank and Takaful Oman are fairly young financial institutions offering Shari’ah-compliant products to a growing base of customers in Oman. Our agreement with Takaful Oman marks the beginning of what we hope is a strong and successful business relationship that will provide our valued patrons with an unrivalled customer experience.’

Sayyidah Rawan Al Said commented ‘We are delighted and excited about our new strategic partnership with Alizz Islamic Bank. The partnership with Alizz Islamic bank is mutually beneficial for both as we are able to offer motor takaful to a wider audience through the bank’s distribution network and alizz customers get value-added service in the form of having their vehicles insured through Shari’ah compliant means in the bank itself .’

Takaful Windows Get Moving in Pakistan

In 2012 the Securities and Exchange Commission of Pakistan (SECP) changed the rules in relation to takaful operations, allowing conventional insurers to open takaful window operations. (The 2005 rules allowed only dedicated takaful companies.) The dedicated takaful companies fought a two-year rearguard action against these new rules, but finally in 2014 windows were given the go ahead. Since then three companies have entered the takaful windows market.

First is Jubilee Insurance, which launched their takaful business in late August. The company is using its partnerships with retail banks to sell their family takaful product. (Some 65% of their conventional life business comes through this channel.) They say that there has been strong interest from their partners, who want to sell the takaful products through their Islamic branches.

Second is EFU Life Assurance, which launched their takaful window in late July. Their family takaful products will be sold under the brand name Hemayah. They have since signed distribution agreements with JS Bank, a provider of wealth management solutions, Askari Bank, a commercial bank and Faysal Bank, Pakistan’s largest commercial bank. They have also signed an MoU with Meezan Bank to provide coverage to the vehicles leased by Meezan Bank through its Shari’ah-compliant car financing service, Car Ijarah.

Third is the United Insurance Company of Pakistan, which launched general takaful products in late August.

Takaud and Takaful International Partnertship

Takaud, a specialist savings, investments and pensions provider for the MENA region and Takaful International, a Bahrain-based Islamic insurance company, are partnering to provide Takaful’s individual and corporate life insurance clients with innovative Shari’ah-compliant investment solutions.

The new partnership will enable Takaful to provide customers of its unit-linked savings policies with the opportunity to invest the savings portion of their policy in Shari’ah-compliant growth, balanced or prudent investment strategies. In support of the agreement, Takaud will provide a complete range of services, along with tools enabling customers to identify their investment profiles. Takaud will also provide marketing assistance and training for Takaful agents and others who will be presenting these new investment strategies to customers.

The Memorandum of Understanding was signed by Takaud’s CEO Mr Luc Métivier and Takaful’s CEO Mr Younis J. Al Sayed, at a ceremony held recently at Takaful’s Manama offices.

Malaysia Takaful Markey Records Strong Growth

In early 2016 Fitch Ratings published a report that indicates the Malaysian takaful sector saw strong growth in 2015. Family takaful grew by 7% and general takaful by 11.6%. (The takaful sector, which accounts for more than 70% of the Malaysian insurance market, outperformed growth in the conventional sector.) The report also suggests that the outlook is positive. Commenting on new regulations and capital requirements in Malaysia, Fitch suggest that there is likely to be some rationalisation in the industry with smaller, less well capitalised operators likely to either exit the market or be absorbed through mergers and acquisitions.

NEWHORIZON     July – December 2015 ANALYSIS

A Shari’ah Analysis of Murabah Transactions: As Executed in Islamic Financial Institutions

By: Syed Ehsan Ullah Agha, MSc
IIUM Institute of Islamic Banking and Finance (IIiBF),
International Islamic University Malaysia (IIUM)

Introduction

Islamic finance is based on firm theoretical foundations defined for Islamic financial institutions in the light of Shari’ah principles. In the current practice of Islamic banking, many issues have been raised regarding the compliance of existing Islamic banking practice with Islamic law. Islamic banking products on the asset side are, theoretically, to be based primarily on two contracts of partnership – mudarabah and musharakah; similar to the conventional concepts of venture capital and joint ventures, respectively. Over 95% of the asset-side financial products being utilised by Islamic banks worldwide, however, are based on trading and leasing contracts – murabaha and ijara respectively (Durrani and Babcock, 2014). It is considered to be the easiest strategy for Islamic banks to mitigate their credit risks. Functioning in today’s environment; which is largely dominated by the conventional banking system, it is quite a big challenge for Islamic banks to practise genuine profit and loss sharing (PLS) financing on the asset side.

This phenomenon has been criticised by various Shari’ah scholars. The core critique is that Islamic finance is mimicking conventional financial products in substance. In other words, only the procedures and paperwork for the processing of the products are Shari’ah compliant and the outcome is apparently similar to conventional finance. This article will highlight some critiques raised by scholars on the current practice of murabaha as a tool of financing in Islamic financial institutions.

Murabaha is basically a cost-plus-profit sale contract, where the seller expressly mentions the cost of the sold commodity as it is incurred and sells it to another person by adding some profit or mark-up at credit. Presently murabaha is used globally by Islamic financial institutions as a mode of credit financing.

Using Interest Rates as a Benchmark for Financing

Most of the Islamic financial institutions offering credit financing via murabaha transactions use interest rates as a benchmark to determine their profit or mark-up. This practice raised the issue that the determination of a profit based on an interest rate should be as non-Shari’ah complaint as the interest itself. Using an interest rate as a benchmark for financing will make the transaction similar to conventional modes of financing in substance. The basic principle for the legality and validity of a murabaha contract is that it must be a genuine sale along with all its requirements and liabilities, not a superficial contract. It is obvious that the use of interest rates for determining a halal profit is deemed to be undesirable. Nevertheless, if a murabaha contract fulfils all the conditions of a true sales contract, then merely by using an interest rate for determining a halal profit will not convert it into an invalid transaction.

Upfront Securities Against Murabaha Price

In murabaha financing the price is payable at later date. To mitigate the risk of default, the seller/financer may ask the client to provide a security. The security can be in the form of a lien or mortgage. From the Shari’ah perspective, the security can be claimed only after the liability or debt is established. In the case of murabaha financing, however, the security is required from the client before the debt is created, which is not lawful. The right way to proceed, therefore, would be for the financer to ask for the security after the sale of the commodity to the client, because at this stage the price will become a debt. Another way could be for the client to place the security with the financer before the transaction, but it will be considered a security for the debt only after the transaction is concluded. Prior to the contract, the item will be possessed by the financer at his sole risk. If the item is destroyed without any negligence or misconduct, the cost will be borne by the financer. It is also permissible to make the sold commodity itself a security given to the seller.

Third Party Guarantee

Sometimes the financer asks the client to arrange a guarantee from a third party. This has been the subject of debate between contemporary scholars: whether it is lawful for the third party as guarantor to charge a fee?

The classical jurists have unanimously agreed that a guarantee is a voluntary transaction and no fee can be charged on a guarantee. On the other hand, a group of contemporary scholars holds the view that the prohibition of guarantee fees is not directly derived from the Qur’an or Sunnah. It was based on the prohibition of riba as one of its ancillary consequences. Furthermore, they argue that a guarantee in present-day commercial activities differs from the way it was used in the past. The guarantor has to do some preparatory administrative work in order to issue the guarantee. Based on this argument they allow the guarantor to charge a fee to cover the actual expense.

Penalty of Default

In the case of a conventional loan if the client fails to pay the price at the due date, the interest portion will keep increasing according to the period of default. However, in Islamic finance once the price of the commodity is fixed in the form of

a murabaha transaction the price cannot be increased. Sometimes this restriction is exploited by dishonest clients as they intentionally delay the instalment at maturity date. To mitigate the risk of default in murabaha transactions, in Malaysia the regulator suggested that Islamic bank may charge 1% of the total outstanding amount or the actual loss as compensation, but it shall be charged once not compounded.

Another option, which is a practice in the Middle East, is that before executing the murabaha contract the client undertakes that in the case of default he will pay a certain amount to a charitable fund managed by the bank. It must be clear that the amount of the penalty will not be used for the bank`s benefit or income.

Rollover and Rescheduling in Murabaha

In conventional finance when the client is unable to repay the loan for any reason, he simply requests the bank to increase the time line. This facility is called rolled-over, which is basically to provide another loan of the same amount with a deferent interest rate and maturity date.

In a murabaha contract, the price cannot be rolled-over for an extended period. Nevertheless, the client may ask the bank to reschedule the instalments. In this case if the bank accepts the client`s request they will reduce the payment amounts by extending the payment period and increasing the number of payments. No additional amount will be charged and the amount of the murabaha price will remain the same.

Rebate on Early Payment

When a debtor pays earlier than the specified date, conventional banks give him a rebate in terms of giving discount on the agreed deferred price. From the Shari’ah perspective, is it permissible to give him a rebate on early payment? This is discussed in Islamic legal literature as ‘Da`wa-ta’ajjal’ (give discount and receive soon). According to the majority of the jurists it is not permissible. Some scholars considered this as a permissible arrangement, based on a famous hadith narrated by Abd Allah Ibn Masod. According to this hadith when the Jews of Banu Nadir were exiled from Madinah (because of their conspiracies) few people came to the Prophet (peace be upon him) and said, ‘You have ordered them to be expelled, but some people owe them debt which have not yet matured’. Thereupon, the Prophet (peace be upon him) said to the Jews, ‘Give discount and receive your debt soon.’

It should be taken into account that if the contractual conditions stipulate that an earlier payment will receive a discount, then the rebate is not permissible. However, if the creditor gives a rebate voluntarily, without any upfront agreement, it is permissible. In murabaha a rebate should not be stipulated in the master agreement; it should remain at the sole discretion of the bank.

Conclusion

The Shari’ah-compliant aspect of Islamic financial products is considered one of the most important factors differentiating them from their conventional counterparts, not only the form but the intention as well. The substance of the Islamic products should be in total compliance with Shari’ah. The Shari’ah compliance of Islamic banks has been severely criticised especially in the current era, where the fact is that Islamic banks operate under the conventional regulations and accounting standards that strongly affect the Shari’ah-compliance aspect of Islamic banks.

The industry is ‘between the hammer and the anvil’, i.e. facing the need to satisfy commercial objectives that are restricted by Shari’ah requirements. This actually gives a comparative advantage to the conventional banks that can be more innovative and competitive as they have no other restriction except the banking acts. This phenomenon should be acknowledged by governments as well as the corresponding regulatory bodies in Islamic finance and attempts should be made to find alternative solutions to these issues. This is particularly relevant in the current era of increasing globalisation, where Islamic banking has to preserve its unique identity.

Syed Ehsanullah Agha holds a Master’s degree in Islamic banking and finance from the International Islamic University Malaysia. He is currently a research assistant at the International Shari’ah Research Academy.

NEWHORIZON     Ramadan - Shawwal 1436 - Rabi Al Awwal 1437 ACADEMIC ARTICLE

Challenges of Realising Maqasid al-Shari’ah (Objectives of Shari’ah) in the Islamic Capital Market: Special Focus on Equity-Based Sukuk

By:Assoc. Prof. Dr. Asyraf Wajdi Dusuki’, Former Head of Research Affairs ISRA
(With contributions on the current position by Mohammad Qayyum, Director General, IIBI)

This article is based on a keynote address given Prof Dusuki in 2009, however, the observations he made then are still valid today. The Islamic capital market is an important component of the overall Islamic financial system especially in providing an element of liquidity to otherwise illiquid assets. Like its conventional counterpart, the Islamic capital market complements the investment role of the Islamic banking sector in raising funds for long-term investment. These long-term investments are facilitated through various Shari’ah contracts and instruments ensuring efficient mobilisation of resources and their optimal allocation. One of the most popular instruments used today in the Islamic capital market is sukuk. Various structures of sukuk based on ijarah, musharakah, mudarabah and hybrid forms have evolved. These innovations, however, have invoked many Shari’ah issues and controversies. This paper argues that some innovations that try to achieve the same economic outcome as conventional instruments distort the vision of Islamic economics based on justice and equitability. These visions are deeply inscribed in the objectives of Shari’ah, also known as Maqasid al-Shari’ah. This distortion stems from the restricted view of understanding Shariah, by only focusing on the legal forms of a contract rather than the substance especially when structuring a financial product. The overemphasis on form over substance lead to potential abuse of Shari’ah principles in justifying certain contracts, which are, in fact, contradictory to the Shari’ah text and ultimately undermining the higher objectives of Shari’ah. In the final analysis, the paper concludes that the substance of a contract that has significant implications for the realisation of Maqasid al-Shari’ah should be examined as carefully as questions of form, otherwise, Islamic finance is merely an exercise in semantics; the functions and operations of these contracts are really no different from conventional banks, except in their use of euphemisms to disguise interest and circumvent the many Shari’ah prohibitions.

Introduction

Over the past decade or so the Islamic financial sector has grown and gained strength by the creation of various support and infrastructure institutions and expanded from being a banking-based industry to wider areas incorporating capital market-based products and services. Indeed the Islamic capital market like its conventional counterpart is an important component of the overall Islamic financial system. It facilitates the transfer of investible funds from economic agents in financial surplus to those requiring funds (Ali, 2008). In other words, the Islamic capital market provides an element of liquidity to otherwise illiquid assets. This is achieved by selling a wide array of products ranging from Shari’ah-compliant securities to bond-like structures known as sukuk.

Perhaps one of the most notable achievements of the Islamic capital market is in the growth of the sukuk market around the globe. The increasing popularity of sukuk in recent years stems from the need of sovereigns and corporates to tap funds from the Islamic capital market through a sukuk issuance. However, the tools used to develop and structure sukuk must comply with Shari’ah values and principles, distinguishing it from others. Indeed, extant literature proclaims that the Islamic financial system differs significantly from the conventional system, not only in the ways it functions, but above all in the values that guide its whole operation and outlook. The prevailing values within the ambit of Shari’ah are expressed not only in the minutiae of its transactions, but also in the breadth of its role in the Maqasid al-Shari’ah (objectives of Shari’ah).

Indeed, Maqasid al-Shari’ah reflects the holistic view of Islam, which has to be looked at as a whole not in parts as Islam is a complete and integrated code of life and its goal encompasses the whole life of individuals and society, in this world and the hereafter (Dusuki & Abozaid, 2007). Hence, a deep understanding of Maqasid al-Shari’ah entails the intense commitment of every individual and organisation to justice, brotherhood and social welfare. This will inevitably lead to a society whereby every member will cooperate with each other and even compete constructively, as success in life is to obtain the ultimate happiness (jalah). Thus mere maximisation of profits cannot, therefore, be a sufficient goal for a Muslim society. Maximisation of output must be accompanied by efforts directed to ensure spiritual health at the inner core of human consciousness and justice and fair play at all levels of human interaction. Only development of this kind would be in conformity with the Maqasid al-Shari’ah (Chapra, 2000a).

Despite progress in improvements to and the introduction of an enabling Islamic capital market environment through various Shari’ah-compliant product innovations such as sukuk, some structures, which attempt to achieve the same economic outcome as conventional bonds, distort the Maqasid al-Shari’ah. This distortion stems from the restricted view of understanding Shari’ah, by only focusing on the legal forms of a contract rather than the substance, especially when structuring a financial product. The overemphasis on form over substance leads to potential abuse of Shari’ah principles in justifying certain contracts, which are, in fact, contradictory to the Shari’ah text and ultimately undermine the higher objectives of Shari’ah.

This paper aims to analyse the challenges of realising Maqasid al-Shari’ah in the Islamic capital market, focusing on sukuk instruments. In particular, the paper deliberates on the application of one of the most popular sukuk structure, namely, equity-based sukuk in the light of Maqasid al-Shari’ah. For that reason, the concept of Maqasid al-Shari’ah will be first delineated in detail so as to shed light on its application to the modem-day practice of sukuk.

Following this brief introduction, sections will, in order, deliberate on the objectives of Shari’ah (Maqasid al-Shari’ah); evaluate the application of the Shari’ah tools especially with respect to Maqasid al-Shari’ah and maslahah in Islamic finance; discuss the polemics of equity-based sukuk structures particularly the use of credit enhancement mechanisms to replicate fixed-income bond characters; analyse how debt-resemblance features of equity-based sukuk may distort the noble objectives of Islamic economics in the light of Maqasid al-Shari’ah and finally provide a summary and conclusion.

Objectives of Shari’ah (Maqasid Al-Shari’ah)

Maqasid al-Shari’ah is the objectives and the rationale of the Shari’ah. A comprehensive and careful examination of Shari’ah rulings entails an understanding that Shari’ah aims at protecting and preserving public interests (maslahah) in all aspects and segments of life. Many Shari’ah texts state clearly the reasoning behind certain Shari’ah rulings, suggesting that every ruling in Shari’ah comes with a purpose, which is to benefit the mukallaf (accountable person). For example, when the Qur’an prescribes qisas (retaliation), it speaks of the rationale of it, that applying retaliation prevents further killing ‘There is life for you in Qisas.’ Similarly, when the Qur’an prohibits wine it says that wine is the works of devil as it causes quarrels and instils hatred and enmity among Muslims ‘The devil only wants to excite enmity and hatred between you in intoxicants and gambling and hinder you from remembrance of Allah and from prayer.’ In depth comprehension of the objectives of Shari’ah is important for analogical deduction and other human reasoning and its methodology (Kamali, 1999). Indeed, Maqasid al-Shari’ah allows flexibility, dynamism and creativity in social policy (Hallaq, 2004; Mumisa, 2002; Zuhrah, 1958). According to Imam Al-Ghazali (d.ll11):

‘The objective of the Shari’ah is to promote the wellbeing of all mankind, which lies in safeguarding their faith (din), their human self (nafs), their intellect (‘aql), their posterity (nasi) and their wealth (mal). Whatever ensures the safeguard of these five serves public interest and is desirable.’ (Chapra 2000a, p.118)

Al-Shatibi approves al-Ghazali’s list and sequence, thereby indicating that they are the most preferable in terms of their harmony with the essence of Shari’ah. Generally, Shari’ah is predicated on benefits to the individual and the community and its laws are designed so as to protect these benefits and facilitate improvement and perfection of human lives and conditions on earth. This perfection corresponds to the purposes of the Hereafter. In other words, each of the worldly purposes (preservation of faith, life, posterity, intellect and wealth) is meant to serve the single religious purpose of the Hereafter (Nyazee, 2000).

The uppermost objectives of Shari’ah rest within the concept of compassion and guidance that seek to establish justice; eliminate prejudice and alleviate hardship. It promotes cooperation and mutual support within the family and society at large. This is manifested in the realisation of maslahah (public interest), which the Islamic scholars have generally considered to be the all-pervasive value and objective of the Shari’ah and is to all intents and purposes synonymous with compassion. Maslahah sometimes connotes the same meaning as maqasid and the scholars have used the two terms almost interchangeably (AbdelKader, 2003). To shed further light on our discussion of the objectives of Shari’ah, especially with regard to their application in the preservation of public interest, the following section elaborates on the principles of maslahah, serving as an important tool to uphold Shari’ah.

Maslahah

Maslahah is one of the juristic devices that has always been used in Islamic legal theory to promote public benefit and prevent social evils or corruption. The plural of the Arabic word maslahah is ‘masalih’, which means welfare, interest or benefit. Literally, maslahah is defined as seeking the benefit and repelling harm. The words maslahah and mania ‘ah are treated as synonyms. Manfa ‘ah (benefit or utility), however, is not the technical meaning of maslahah. What Muslim jurists mean by maslahah is the seeking of benefit and the repelling of harm as directed by the Lawgiver or Shari’ah.

Amongst the major schools of Islamic jurisprudence, Imam Malik is known to be the leading proponent of upholding maslahah as one of the sources of Shari’ah. He uses the term ‘al-masalih al-mursalah’ to connote interests that have not been covered by other secondary sources of Shari’ah. On the other hand, the majority of other jurists reject it as a source of Shari’ah though, they practiced it without theoretically admitting its authority as an independent source of the Shari’ah. However, Al-Ghazali (who is from the Shafi’i school), uses the term istislali (seeking the better rule for public interest) but never claims it as the fifth source of Shari’ah. He also restricts its application to situations which are deemed to be necessary to serve the interest of the public.

On the other hand, those who opposed the maslaha mursala as one of the independent sources of Shari’ah argue that by endorsing this principle, it implies giving human beings a legislative authority, which is premised on a human’s perception of what is good and what is bad. Thus, it sometimes functions in isolation from Shari’ah text even though it may be based on certain legal principles in addressing a particular issue, which is not clearly mentioned in any Shari’ah sources. This may imply that maslahah may indirectly nullify the textual rulings and their legislative authority.

Islamic Finance and Maqasid Al-Shari’ah

The preceding sections have elaborated the fundamental principles of Shari’ah particularly in dealing with the mundane affairs of human beings. Our next focus is to evaluate the application of Shari’ah tools especially with respect to Maqasid al-Shari’ah and maslahah in Islamic banking and finance. Indeed, one of the biggest challenges of the Islamic banking and finance industry today is to come up with products and services that are Shari’ah compliant or legitimate from the Islamic point of view without undermining the business aspects of being competitive, profitable and viable in the long run.

Shari’ah-Compliant: Validity versus Permissibility

The first question that needs to be raised is what should be the basis for justifying whether a product is Shari’ah compliant or not? In other words, what are the approaches in fiqh when determining whether a contract is valid and permissible from a Shari’ah perspective?

Schools of fiqh have differed on the issue of determining the basis of contract validity (sahih). Some emphasise its legal form, while others stress its substance and the intentions of contracting parties. These differences can be attributed to the Shari’ah texts as there are some who based their opinion on a hadith that ‘matters are determined by intention’. Based on this hadith, the validity of all contracts must be determined by niyyah (intention), i.e. the purpose or substance of the contract, not by just looking at its form or structure alone. However, some scholars like Imam Shafii found it was impractical to determine the validity of contracts by means of intention, as it is difficult and sometimes impossible to identify the intention of the contractors. Moreover, they found some Shari’ah texts suggesting that judging things must be based on their form and appearance.

To reconcile between these two conflicting texts in a practical way, scholars distinguished between two types of hukm (ruling): hukm Qada’i and hukm Diyani. The former concerns contracts that comply with all Shari’ah conditions and requirements pertaining to a contract in its form and structure. The later concerns compliance with the substance or contract purpose, which must be in line with the Shari’ah. If the contract structure is Shari’ah compliant, then it could be termed as a valid contract (sahih qadaan). On the other hand if all the contractors’ purposes, i.e. the substance of the contract, are Shari’ah compliant, then it is termed as permissible (valid diyanatan). Thus, a transaction is deemed to be sahih qadaan when it serves the legal purpose and intention and sahih diyanatan if the contract meets all contractual conditions and requirements. Consequently, a sahih (valid) contract is not necessarily halal (permissible).

The first approach represents the position of the Hanafis and Shafi’is, while the Malikis and Hambalis emphasise that the validity of a contract must be based on the real intention or the substance of the contract. Apparently, the scholars of fiqh only differ in terms of basing the validity of a contract. However fuqaha never differed on the issue of basing the permissibility of a contact on its substance or the contractors’ intentions. Even Shafi’i gave examples of instances when the real intention does invalidate a contract such as the selling of grapes to a winery or selling arms to an enemy whose intentions are to attack Muslims. This implies that the emphasis on the form or expressed intention is more applicable when the real intention is difficult to determine. Therefore, for a contract to be accepted as Shari’ah-compliant, it must both valid in its legal forms and substance (sahih qadaan wa sahih diyanatan).

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The Polemics of Equity-Based Sukuk

The foregoing discussion has somehow indicated that scholars are generally agreed; for an Islamic financial product to be deemed as Shari’ah compliant, the contract must be both valid in its legal forms and substance (qadaan wa diyanatan). This somehow raised an issue whether the current practice of equity-based sukuk is indeed following the same principles. Before critically examining this instrument in the light of the objectives of Shari’ah, the following section delineates the concept and practice of equity-based sukuk in current Islamic capital market transactions.

The Emergence of the Sukuk Market

The sukuk market is a fairly new development in the Islamic capital market. The first issuance of sukuk was Shell MDS (Malaysia) in 1990. There were no active issuances by other players or countries until the year 2000 when a number of institutions issued sukuk including Majlis Ugama Islam Singapore (MUIS), the Government of Bahrain and the first global corporate sukuk by Guthrie Malaysia. This was the beginning of an active sukuk market. Total sukuk issued as at 5 August 2009 amounted to US$133 billion. Chart 1 depicts the growth of the sukuk market.

Literally sukuk means certificates. Technically, sukuk refer to securities, notes, papers or certificates, with features of liquidity and tradability. The Accounting and Auditing Organisation for Islamic Financial Institutions (AAOIFI) defines ‘Investment Sukuk’ (sukuk al istithmar) in its Shari’ah Standards - Standard 17(2) as:

‘Investment sukuk are certificates of equal value representing undivided shares in ownership of tangible assets, usufructs and services (in the ownership of) the assets of particular projects or special investment activity, however, this is true after receipt of the value of the sukuk, the closing of subscription and the employment of funds received for the purpose for which the sukuk were issued’ (Accounting and Auditing Organisation for Islamic Financial Institutions, 2008b)

The investment sukuk under AAOIFI’s definition are said to represent undivided shares in ownership of tangible assets; usufructs; services; assets of particular projects; or special investment activity. However, AAOIFI’s definition does not seem to include financial assets

or debt receivables as possible asset classes that can be represented by the sukuk. This exclusion is mainly due to fact that AAOIFI does not recognise the validity of the sale of debt.

Sukuk can be structured in various forms. The types of sukuk issued can have various structures depending on the underlying Shari’ah principles such as bai’ bithamin ajil, murabaha, salam, istisna, ijarah, musharakah, mudarabah and wakalah (Kamil, 2008). These can be further grouped into three main clusters - sale-based sukuk (comprising of bai’ bithamin ajil, murabaha, salam and istisna’ a), lease-based sukuk (ijarah) and equity-based sukuk (musharaka, mudaraba and wakala). Chart 2 illustrates the trend of each cluster issued.

As depicted in Chart 2, in the year 2007, equity-based sukuk was the most popular type of sukuk issued. It represents 75% of sukuk issuance in 2007. There is, however, a huge drop of equity-based sukuk in 2008. This may be partly attributed to the AAOIFI pronouncement, which is going to be discussed later. It cannot be confirmed that the AAOIFI pronouncement caused the sukuk market to decline, nonetheless, based on the data above, the pronouncement may have some influence on the type of sukuk issued.

Equity-Based Sukuk

Equity-based sukuk that is currently structured and issued in the market normally take the form of participatory contracts (uqud al-mu ‘awanaty) namely mudarabah and musharakah. In the case of mudarabah, the originator will be the managing partner of the venture without contributing any capital, only their skills and expertise. The Malaysian Securities Commission’s ‘Guidelines on the Offering of Islamic Securities’ 2004 (hereinafter referred to as the IS Guidelines 2004) in Para 1.05 (a) defines mudarabah as: ‘A contract which is made between two parties to finance a business venture. The parties are a rabb al-mal or an investor who solely provides the capital and a mudarib or an entrepreneur who solely manages the project. If the venture is profitable, the profit will be distributed based on a pre-agreed ratio. In the event of a business loss, the loss shall be borne solely by the provider of the capital.’ (Securities Commission Malaysia, 2004)

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As depicted in Exhibit 1 below, the issuer will first call for investors to participate in the mudarabah contract. The issuer acts as the manager or mudarib and the investor is the capital provider or rabb al-mal. Mudarabah sukuk are issued by the issuer to evidence the proportionate capital contribution by the investors (rabb al- mal) to the mudarabah and their subsequent rights in the mudarabah project or investment activities. The issuer as mudarib will then invest the mudarabah capital into an agreed project. Normally, the mudarabah project has already identified the projected cash flow and this allows the issuer to indicate an expected rate of profit to the investors upon initial issuance of the mudarabah sukuk. The expected rate of profit should be calculated based on a pre-agreed, profit-sharing ratio that is tentatively applied to the projected return of the project. After the project starts to generate profit, the issuer will apply the profit sharing ratio and pay the profit share of the investors as periodic coupon distribution, normally at the expected profit rate. However, if the project suffers loss, it will be borne solely by the investors except when the loss is caused by the negligence or mismanagement of the mudarib.

Similar to the concept of mudarabah sukuk, musharakah sukuk is also an equity- based sukuk. Both sukuk do not represent debt receivables, but rights in specific investment projects or assets. In the case of musharakah, the originator can be an equity partner in the venture that will be formed, by contributing capital in cash or kind. The IS Guidelines 2004 defines musharakah as:

‘A partnership arrangement between two parties or more to finance a business venture whereby all parties contribute capital either in the form of cash or in kind for the purpose of financing the business venture. Any profit derived from the venture will be distributed based on a pre-agreed, profit-sharing ratio, but a loss will be shared on the basis of equity participation.’ (Securities Commission Malaysia, 2004)

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In a musharakah sukuk transaction, both the issuer and investors will contribute to the capital of the musharakah project. The musharakah project is normally managed by either the issuer or a third party as the case may be. Alternatively, a musharakah sukuk transaction can also be structured with all investors contributing capital in a musharakah project and then appointing the issuer as their agent to manage the musharakah. This structure can also be classified as an investment agency sukuk (sukuk wakalah bi istithmar) (Engku Rabiah, 2009).

Based on the explanation above, it is clear that mudarabah and musharakah sukuk are conceptually equity-based and are not debt instruments. The mudarabah and musharakah sukuk represent the sukuk holders’ proportionate rights over the investment project and revenue. Thus, the secondary trading of equity-based sukuk on the secondary market is not generally a sale of debt (unless if it can be shown that the investment project has been liquidated and all its assets are in the form of cash or receivables).

It should be noted that it is not permissible to guarantee the capital or profit in an equity-based sukuk transaction. In mudarabah sukuk for instance, the mudarib is considered as the manager and trustee (am in) of the mudarabah fund and its project (Engku Rabiah, 2009). Therefore, the mudarib is not to be made responsible for losses unless due to negligence, mismanagement and dishonesty leading to losses. It is permissible, however, for an independent third party to give a guarantee for the preservation of the mudarabah capital.

In both structures, the issuer will issue certificates evidencing the capital contribution of the investors in the musharakah and the ‘indicative rate of profit’. The indicative rate of profit is derived from the application of the pre-agreed profit sharing ratio to the expected or projected net profit of the musharakah venture. This indicative profit is not and cannot be guaranteed because according to the rules of musharakah, any financial loss must be borne by all musharakah investors proportionate to their respective investments. However, similar to mudarabah, it is permissible for an independent third party to give a guarantee for the preservation of the musharakah capital.

Paradox in Structuring Equity-Based Sukuk

As illustrated in the preceding section, the fundamental characteristics of equity-based sukuk are based on two basic features; firstly, the capital cannot be guaranteed and secondly, the periodic returns are also dependent on actual profits made and can be variable. However, these strict Shari’ah prescriptions of equity-based sukuk structure may not be attractive to conventional mind-set, risk-averse investors. In particular, the characteristics of mudarabah and musharakah do not meet the risk appetite of investors who mainly expect capital preservation and fixed income instruments as commonly featured in conventional bond instruments (Ghani, 2009).

Over time, the structure of equity-based sukuk has evolved into debt-based obligation, whereby various ‘credit enhancements’ and strategies were introduced to the mudarabah and musharakah sukuk structures to achieve capital protection and predictable periodic returns similar to other fixed income or bonds instruments. These enhancements basically give fixed income and capital preservation features to the equity-based sukuk. The following provides brief descriptions on various mechanisms of credit enhancements in sukuk structure: Liquidity-facility arrangement

• This is an undertaking given by the obligor (entity needing the funding) that if there is insufficient cash to pay the returns to sukuk-holders, the obligor will provide cash to ensure smooth profit payment. This liquidity is normally provided either in the form of a loan or other Shari’ah-compliant facility such as tawarruq.

For example let’s say the sukuk raised was RM500 million and the expected return was 7%. In year one, the actual return was only 5%. The obligor then would provide an additional 2% by way of a liquidity facility to ensure the sukuk-holders get the 7% return.

Purchase undertaking at a fixed formula

• This is another credit enhancement mechanism whereby the obligor will promise that at maturity or in the event of default he will buy back the sukuk holder’s interest in the partnership assets at par/face value (outstanding principal + accrued but unpaid profit), regardless of whether their value exceeds that of their face value or not. For example, if the sukuk issued was for RM800 million and expected profit was 6% each year with a five year maturity, at the end of year five, the obligor will buy back the sukuk holder’s share at the price of RM800 million + 6% return (for year five).

Capping of profit with incentive payments

• The sukuk holders will agree to forego any excess profit beyond the benchmark (i.e. the expected return). If, for example, the expected return is 6.5%, and the actual return (based on the profit sharing ratio) is 10%, the sukuk holders will only take 6.5% and give the excess to the obligor for good performance.

Non-distribution of expected profit constituting event of default

• This is also known as the non-payment clause which says that if the obligor fails to pay profit (or any amount due) this will be considered as default.

Obviously from the brief descriptions above, the various credit enhancements embedded in sukuk structures resemble conventional bond features. These innovations inevitably aim at achieving the same economic outcome as conventional bonds. Consequently these fixed-income enabling mechanisms embedded into equity-based sukuk had been the subject of strong criticisms by various parties in terms of their compliance with the Shari’ah requirements of mudarabah and musharakah contracts.

In particular, the Shari’ah Board of the Accounting and Auditing Organisation for Islamic Financial Institutions (AAOIFI) published a statement in February 2008 suggesting that musharakah and mudarabah sukuk with credit enhancement mechanisms as practiced by the market was not congruent with Shari’ah principles (Accounting and Auditing Organization for Islamic Financial Institutions, 2008a). More specifically, AAOIFI’s pronouncement highlighted two main issues with regard to equity-based sukuk, namely the usage of the liquidity facility and the purchase undertaking at par to redeem the sukuk. Box 1 highlights AAOIFI’s pronouncement in February 2008 that is relevant for equity-based sukuk.

• This is an undertaking given by the obligor (entity needing the funding) that if there is insufficient cash to pay the returns to sukuk-holders, the obligor will provide cash to ensure smooth profit payment. This liquidity is normally provided either in the form of a loan or other Shari’ah-compliant facility such as tawarruq.

For example let’s say the sukuk raised was RM500 million and the expected return was 7%. In year one, the actual return was only 5%. The obligor then would provide an additional 2% by way of a liquidity facility to ensure the sukuk-holders get the 7% return.

Purchase undertaking at a fixed formula

• This is another credit enhancement mechanism whereby the obligor will promise that at maturity or in the event of default he will buy back the sukuk holder’s interest in the partnership assets at par/face value (outstanding principal + accrued but unpaid profit), regardless of whether their value exceeds that of their face value or not. For example, if the sukuk issued was for RM800 million and expected profit was 6% each year with a five year maturity, at the end of year five, the obligor will buy back the sukuk holder’s share at the price of RM800 million + 6% return (for year five).

Capping of profit with incentive payments

• The sukuk holders will agree to forego any excess profit beyond the benchmark (i.e. the expected return). If, for example, the expected return is 6.5%, and the actual return (based on the profit sharing ratio) is 10%, the sukuk holders will only take 6.5% and give the excess to the obligor for good performance.

Non-distribution of expected profit constituting event of default

• This is also known as the non-payment clause which says that if the obligor fails to pay profit (or any amount due) this will be considered as default.

Obviously from the brief descriptions above, the various credit enhancements embedded in sukuk structures resemble conventional bond features. These innovations inevitably aim at achieving the same economic outcome as conventional bonds. Consequently these fixed-income enabling mechanisms embedded into equity-based sukuk had been the subject of strong criticisms by various parties in terms of their compliance with the Shari’ah requirements of mudarabah and musharakah contracts.

In particular, the Shari’ah Board of the Accounting and Auditing Organisation for Islamic Financial Institutions (AAOIFI) published a statement in February 2008 suggesting that musharakah and mudarabah sukuk with credit enhancement mechanisms as practiced by the market was not congruent with Shari’ah principles (Accounting and Auditing Organization for Islamic Financial Institutions, 2008a). More specifically, AAOIFI’s pronouncement highlighted two main issues with regard to equity-based sukuk, namely the usage of the liquidity facility and the purchase undertaking at par to redeem the sukuk. Box 1 highlights AAOIFI’s pronouncement in February 2008 that is relevant for equity-based sukuk.

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As highlighted in Box 1 above, AAOIFI actually reiterated its existing standard on investment sukuk especially on the usage of the liquidity facility and the purchase undertaking at par (Accounting and Auditing Organisation for Islamic Financial Institutions, 2008b). From the Shari’ah point of view, sukuk structures based on mudarabah and musharakah should not implant any form of guarantee on either the return or the principal as it is viewed as a trust-based instrument that has strong equity-like features.

As described earlier, the use of the liquidity facility in sukuk, sometimes called the ‘top-up’ facility, when actual earnings fall short of expected earnings, resembles a bond feature, wherein the sukuk manager (obligor), who is either the entrepreneur (mudarib in sukuk mudarabah) or investment partner (sharik in sukuk musharakah), agree to advance a sum of money to ensure sukuk holders gets their full payment on the expected return on a periodic basis.

The undertaking of the manager (obligor) to offer loans to the sukuk holders at times when actual returns fall below the (promised) rate of return is tantamount to prohibited sales linked to credit. It is well known that the Prophet Muhammad (peace be upon him) prohibited sales linked to credit. The same was related by Malik in his al-Muwatta on the authority of trusted narrators (balaghan) and by Abu Dawud and al-Tirmidhi whose version reads, ‘A sale and a credit are not lawful.’ AI- Tirmidhi added, ‘This is a good and a sound hadith.’ (Usmani, 2008)

Furthermore, most equity-based sukuk structures involve either the sale of an asset (Shirkah al-Milk) with a promise to repurchase the assets by the sukuk manager (obligor) based on the waad principle or sukuk holders just inject capital into the business operation of the sukuk manager. In musharakah, the obligor will provide capital in kind while in mudharabah the obligor does not have to provide any assets. In all these structures there will be waad in the form of purchase undertaking by the obligor (at the beginning) to re-purchase the assets/shares from sukuk holders, for their nominal value at a certain agreed price. This would assure that the principal/capital invested by the sukuk holders remains intact. In other words, sukuk holders shall be rest assured that their capital will be guaranteed at maturity since the purchase undertaking allows sukuk assets to be redeemed at par and hence achieving the same economic outcome as a conventional bond.

Substance and Form

Apparently, the credit enhancements that have been described in the preceding section involve arrangements and commitments, which, if taken on their own, are perfectly acceptable and permissible. Such arrangements include promises or undertakings (waad) to do a certain act in the future, such as to give a loan or to buy assets or to give incentive payments for jobs well done, etc. The original permissibility of such undertakings is the main reason why these structures and arrangements had received endorsement by the Shari’ah advisors concerned.

However, when taken in the context of the whole process of sukuk issuance, periodic distribution payments and redemption upon maturity, these otherwise innocent promises and undertakings clearly look like devices to achieve capital preservation and a predictable rate of return on investment (similar to conventional bonds/debt instruments), which cannot be achieved directly in the mudarabah and musharakah contracts (Engku Rabiah, 2009). Thus, the issue is whether such practices amount to tricks (hiyal) to circumvent certain prohibitions using legal means and arrangements.

However, as discussed earlier, the legal form is not sufficient to certify and justify the permissibility of a contract although it may be perceived otherwise for validity. Therefore, to claim permissibility by merely basing this on the legal form of the transaction, is definitely undermining ijma’ (consensus of jurists) and go against the very principles of Shari’ah and religion in general. The use of credit enhancement strategies like a purchase undertaking in structuring sukuk to enable guarantee-resemblance features of conventional bonds obviously has maintained the legality of the form (sahih qadaan) but neglected the legality of the substance (sahih diyanatan) despite the fact that the objective of form is to help ensure the compliance of the substance with the Shari’ah and it is not meant for itself.

If observing Maqasid al-Shariah naturally entails observing the rationale and the spirit of the texts then observing only the form and the structure of the contracts functions against the very concept of Maqasid al-Shariah from the contract (Usmani, 2008). Surprisingly enough, Maqasid al-Shariah has been used here as a justification for the adoption of such controversial transactions though observing Maqasid al-Shariah must be the first factor to determine their prohibition.

Macro Maqasid versus Micro Maqasid

One may think that by legalising and structuring instruments that replicate conventional transactions such as having fixed-income enabling mechanisms embedded into equity-based sukuk by way of a purchase undertaking, the macro maqasid are observed. What we meant by macro maqasid here is the interest or benefits related to the overall wellbeing and welfare of the economic system, which has been the objectives of Islamic economics for so long; whereas micro maqasid only relates to certain micro issues pertaining to certain individual financial transactions.

Obviously it is more important for macro maqasid to be concerned and observed than any micro maqasid. These macro maqasid manifest themselves in structuring an Islamic economy and pushing it forward to compete with and supersede the conventional banks at least in Muslim countries. On the other hand, we may argue that maintaining the prohibition of certain transactions helps in observing a particular maqasid of certain detailed rulings but at the expense of the macro maqasid of Shari’ah, or more specifically, the maqasid of the Islamic law of transactions, since the latter aims at building a strong just economic system.

Apparently, over-emphasising debt-based instruments in the economy would not help to remove the injustices, harm, inequity and inefficiency as enshrined in the objectives of Shari’ah. It is an established fact that mere debt creation and proliferation via various debt-based instruments accentuates inequity as it redistributes wealth in favour of the suppliers of finance, irrespective of the actual productivity of the finance supplied (Mirakhor, 1995; Siddiqi, 2004). Moreover a monetary system merely based on debt creation and speculative finance based on debt creates fasad (harm) that results in inequity in the distribution of income and wealth and contributes to greater instability in the economy (Siddiqi, 2007). Therefore, debt based instruments, such as those resulting from fixed-income-enabling mechanisms embedded into sukuk, sever all links with the real assets which they could have been associated with in the beginning of sukuk issuance. This process inadvertently shifts the transaction from that of the asset market to the money (debt) market, where the underlying signalling and equilibrium mechanisms are no longer linked to the real market.

It is important to note that debt as an individual transaction is not illegal from the Shari’ah point of view. However, when taken into a bigger perspective on how debt in modern day transactions can cause harm to the entire society, different rulings need to be asserted. It has been an accepted principle in Islamic jurisprudence that priority should be given to public interest (maslahah ‘ammah) over individual interests (maslahah khassah). Therefore, the benefits of debt-based instruments (such as the equity-based sukuk with embedded credit enhancers) in certain circumstances must be overruled in view of the huge public benefits of not proliferating it.

On a different note, we also need to address the common confusion with regards to the perception of the seemingly potential conflict between perceived maslahah and Shari’ah text. Essentially the Shari’ah texts must always prevail over the perceived maslahah. Only by acknowledging this hierarchy, can the realisation of maslahah for human beings be achieved since we recognised the authority of the Lawgiver Himself, Who is the Most Knowledgeable and the Most Wise. In other words, the determination of maslahah in terms of what is beneficial and what is harmful cannot be left to human reasoning alone. Instead, as Muslims we should give high recognition to what has been prescribed by the Lawgiver in Shari’ah text. This is because, the inherent limitations of human beings posit a strong reason that requires Divine guidance especially to ascertain what is right and what is wrong. In this regard, Ibn Taymiah says: ‘What constitutes a maslahah or a mafsadah is subject to Shari’ah standards. Al-Dahlawi says: ‘Our lawgiver is more trustworthy than our reasons’.

If there was any kind of maslahah in riba or its resemblance of guaranteed return and principal in equity-based sukuk structures, then the Lawgiver would not have considered riba as the worst of evil and one of the gravest sins that invoke the strongest curse and declaration of war by the Almighty. The Qur’an says: ‘But God has permitted the sale and forbidden the riba’ (2:275) and, ‘God destroys/eliminates the riba’ (2:276) and ‘0 ye who believe, fear God and quit what remains of the riba if ye are indeed believers; but if ye do it not, take notice of war from God and His Messenger’ (2:278-279). No other sin is prohibited in the Qur’an with a notice of war from God and His Messenger.

The Misguided Dharurah

Dharurah, which means emergency, unanimously renders the prohibited things permissible as this constitutes a well-established fiqh maxim in the Shari’ah ‘Necessities permits the forbidden’ (Al-Dharurat Tubih Al-Mahzurat). However, when jurists discussed and explained the applications of this fiqh maxim they mentioned what is known in Arabic as dhawabit, which means conditions and guidelines, for the functionality of this maxim. These guidelines (dhawabit) are of course stated in or derived from the Shari’ah texts. The first guideline (dhabit) is: what constitutes a dharurah. The jurists’ approach to the concept of dharurah can be summarised by saying that dharurah is something which is indispensable for the preservation and protection of the five essential values or masalih: Faith, Life, Intellect, Posterity, and Wealth. This means the concept of dharurah would give the accountable person (mukallaf) legal excuse to commit the forbidden; what is indispensable for his survival, spiritually and physically.

Applying the principle of dharurah to the case in question would not in any way imply that rendering the unanimously forbidden transaction to be permissible so as to apply them in Islamic finance. Even if we rightly presume that such products are inevitable for the Islamic banks’ survival and long-term sustainability due to certain considerations, then the argument is that the very concept of bank itself is not indispensable for the mukallaf’s survival from the Shari’ah perspective. If such dharurah hypothetically exists, then it would rather legitimise dealing with conventional finance direct.

NEWHORIZON     July – December 2015 ACADEMIC ARTICLE

Undoubtedly when Shari’ah supervisory boards, academic councils and legal seminars have given permission to Islamic banks to carry out certain operations that more closely resemble stratagems than actual transactions, such permission, however, were granted in order to facilitate, under difficult circumstances, the figurative turning of the wheels for those institutions when they were few in number, short of capital and human resources. It was expected that Islamic banks would progress in time to genuine operations based on the objectives of an Islamic economic system and that they would gradually distance themselves from what resembled interest-based enterprises (Usmani, 2008).

What is happening at the present time, however, is the opposite. There is a tendency in many Islamic financial institutions today to conveniently use dharurab as an excuse to legalise certain transactions such as the issue of profit and principal-guaranteed in equity-based sukuk structures, although all jurists agree on its impermissibility. Oftentimes the so-called Islamic products are rushed to market using ploys that sound minds reject and bring laughter to enemies (Usmani, 2008). Even if the justification of dharurah is considered valid, they should acknowledge the original ruling of the transaction and not simply altering it then attributing it to Shari’ah.

Even in a worst case scenario, there has been a well-established ruling that when a person is given the excuse to commit the forbidden on the grounds of dharurah, he can never deny the original ruling of its prohibition. Hence he cannot claim the original permissibility of his commission of the forbidden. For example, if a person is excused to seek a riba-based loan due to the occurrence of an extreme urgency and the absence of any possible alternative source of finance, under no circumstances can he deny the prohibition of riba or regards it as permissible. Otherwise, such an act tantamount to a betrayal of God’s ruling since riba impermissibility is definitive.

So, where is the dharurah that may allow these sukuk to be structured in a way that abandons the genuine principles of Shari’ah in favour of a harmful and destructive one? Legalising a forbidden thing on the grounds of dharurah is supposed to solve a problem not to create a bigger one. Islamic banks have been in business for more than three decades and so far they still offer the same excuses of dharurah and the impracticality or impossibility of adopting lawful business contracts, due to the existence of certain obstacles and deterrents. The questions are: do these obstacles and hindrances still exist after more than three decades of Islamic banking development? Are there any indications to suggest a possible change? How has this excuse of dharurah affected the behaviour of Islamic banks in product innovation?

In the final analysis, the entire practice of Islamic finance has to be studied not only from the perspective of Islamic legal form or jurisprudence. More importantly, the true success of Islamic finance is measured by the extent to which it can integrate the social goals with the mechanics of financial innovation. That, in turn, requires a holistic understanding of the economic reasoning underlying classical jurisprudence, which is enshrined in the noble objectives of Shari’ah (Maqasid al-Shari’ah).

However, if we examine the current structure of sukuk from the higher purposes of Islamic law or the objectives of Shari’ah, then sukuk, in which are to be found nearly all of the characteristics of conventional bonds, are inimical in every way to these higher purposes and objectives. Obviously, Islamic finance was not introduced so that it could offer the same products and engage in the same operations as the prevalent interest-based finance. Instead the purpose was to gradually open up new horizons for business, commerce and banking that would be guided by social justice in accordance with the principles established by Shari’ah. Once Islamic finance outgrows its formulaic current mode of operation and assumes a new identity based on the substantive objectives of Shari’ah, it will eventually become more authentic and allowing the industry to serve Islamic ideals.

Conclusion

This paper has critically evaluated the practice of equity-based sukuk, which is one of the main Islamic capital market instruments to mobilise Islamic funds in the light of the objectives of Shari’ah (Maqasid al-Shari’ah). The study focuses on the issue of credit enhancement mechanisms used in structuring mudarabah and musharakah-based sukuk, namely the use of liquidity facilities and purchase undertakings. These credit enhancement mechanisms used in sukuk today, however, strike at the foundations of these objectives and render sukuk exactly the same as conventional bonds in terms of their economic results.

After a deep deliberation on the foregoing arguments, this paper concludes that the widespread use of credit enhancement mechanisms namely liquidity facilities and purchase undertakings at par do not conform to the Maqasid al-Shari’ah. Although most of the mechanisms adopt Shari’ah principles like waad, which is perfectly Shari’ah compliant if we analyse it as a standalone part in equity based sukuk. However, when we look at the combined effect of waad and its price, it plays the role of guarantee

because it provides the investors with recourse to the obligor. This assertion somehow supports the pronouncement by AAOIFI, which regards the two strategies as unlawful. AAOIFI has made a very clear indication that on the issue of liquidity facilities, it is unlawful for a manager to lend money when actual profits are less than expected. Nevertheless, AAOIFI allows the setting up of a reserve from actual profit realised for the purpose of smoothing out the profit distribution. With regards to a purchase undertaking strategy, AAOIFI asserts that it is unlawful for a manager, whether a mudarib or a partner or an agent, to commit to repurchase of assets at face value. Instead, their resale must be undertaken on the basis of the net value of the assets or at a price that is agreed upon at the time of purchase.

The paper also argues that the restricted view of understanding Shari’ah, by only focusing on the legal forms of a contract need to be changed. Instead, the substance that has greater implications to the realisation of Maqasid al-Shari’ah should be equally looked into especially when structuring a financial product. Otherwise, Islamic banks will just appear as an exercise of semantics; their functions and operations are really no different from conventional banks, except in their use of euphemisms to disguise interest and circumvent the many Shari’ah prohibitions.

Therefore, Islamic banking and finance must ensure that all of its transactions are Shari’ah compliant not only on their forms and legal technicalities, but more importantly the economic substance, which is premised on the objectives outline by Shari’ah. As discussed, if the economic substance of a given transaction is identical to that of the prohibited transaction, such as the one in which the bank or the financier acts as a creditor not as a trader of real property, then this must render the transaction impermissible regardless of its legal form.

In a nutshell, Islamic banks should do away with all the controversial contracts that may impede the growth and progress of the Islamic banking and finance industry. Indeed the Islamic banking system has the potential to become one of the most promising sectors to realise the noble objectives of Shari’ah, as it resides within a financial trajectory underpinned by the force of Shari’ah injunctions. These Shari’ah injunctions interweave Islamic financial transactions with genuine concern for a just, fair and transparent society at the same time as prohibiting involvement in illegal activities, which are detrimental to social and environmental wellbeing. There are fundamental differences between Islamic banking and conventional banking, not only in the ways they practise their business, but above all the values which guide Islamic banking’s whole operation and outlook. The values as prevailing within the ambit of Shari’ah are expressed not only in the minutiae of its transactions, but in the breadth of its role in society. This demands the internalisation of Shari’ah principles on Islamic financial transactions, in its form, spirit and substance. By so doing, it epitomises the objectives of Shari’ah in promoting economic and social justice.

Moin Qazi

YB Senator Dato’ Dr Asyraf Wajdi Bin Dato’ Dusuki is currently the Deputy Minister in the Prime Minister’s Department. He was formerly the President or Yang Dipertua of Islamic Da’wah Foundation Malaysia (YADIM). He was the Head of Research Affairs at International Shari’ah Research Academy for Islamic Finance (ISRA) and Associate Professor of International Centre for Education in Islamic Finance (INCEIF).

In Islamic finance, he served as an Independent Director of Affin Islamic Bank and was Chairman of Affin Bank Group Shari’ah Committee. He was also Shari’ah consultant and advisor to several financial institutions and advisory firms including the Maldives Capital Market Development Authority, PriceWaterhouseCoopers (PWC) Malaysia, Maldives Allied Insurance Pvt Ltd, London-based Mortgage Company Chain Mender Limited, London-based Halal Industries PLC, US-Based Islamic Financial Institution United Chartered Bank (UCB), and Singapore-based IFIS Business Advisory Pte Ltd.. He had also served as Shari’ah Advisor to AIA AFG Takaful Berhad, AIA Takaful International.

He holds Master of Science degree in Islamic Economics, Banking and Finance and Ph.D in Islamic Banking and Finance from Loughborough University, United Kingdom.

NEWHORIZON     Ramadan - Shawwal 1436 - Rabi Al Awwal 1437 FOOD FOR THOUGHT

Currency and Purchasing Power:
Some Shari’ah Concerns

By: Hifzur Rab, Al-Hamd Charitable Trust, Rahmat Nagar,
Jhapia, Bamrauli, Allahabad, India

Introduction

Contemporary Islamic scholars have put a substantial amount of effort into debating whether currency should only consist of gold and silver or not. While the dominant view is that it must be gold and silver, the minority view is that it is not limited to gold and silver as is the practice all over the world. We have not properly examined what are the essential requirements for something other than gold and silver to be used as currency. Holding that currency is not limited to gold and silver does not imply that it can be anything and even nothing. It is agreed that currency is a measure of value and therefore it must satisfy the conditions necessary to function as a measure of value. Our contemporary scholars by overlooking those necessary conditions have unconsciously accepted freely floating fiat money (currency declared as legal tender by a government, but with no physical commodity backing it) as Shari’ah compliant. Some have even gone to the extent of claiming that the concept of ‘Islamic money’ does not exist. It is strange to believe that freely floating fiat money, despite having no intrinsic value except the purchasing power that the market assigns it, has become the undisputed yardstick for all our economic dealings, whereas scholars continue to argue that Shari’ah does not rely on purchasing power.

Gold and silver coins constituted money during the period of the Prophet (peace be upon him) and his companions. These coins constituted the primary medium of exchange, which derived their purchasing power from the quantity of noble metals (gold and silver) contained therein. There were gold coins (Dinar) that differed in their gold content and hence the Prophet (peace be upon him) ordered them to be exchanged on the basis of the equality of weight of these coins. Thus the weight of the noble metal contained by the coin determined its exchange value and purchasing power. It follows from this that gold and silver coins constituted money and their purchasing power or exchange value was determined by their weight. In other words Shari’ah requires that a gold coin of say 4gm weight must be exchanged with gold in any other form of the same quality (equal fineness) and equal weight. This shows that Shari’ah enforces equality of price based on equality of quantity. It may be noted that any value in excess of the intrinsic value due to its use as medium of exchange may not be acceptable. This may require authorities to make sure that at any point in time the supply of the medium of exchange should be sufficient to ensure that it does not create a special premium for use as currency.

During the Prophet’s (peace be upon him) period wheat, rice and dates were sometime used as a medium of exchange and this did assist in ensuring an adequate supply of the medium of exchange. Strict banning of any excess of quantity on grounds of quality in the case of exchange with the same genera seems also to be on the grounds of restricting arbitrage and maintaining the quality and sufficiency of the medium of exchange in circulation. Restrictions on hoarding and the uses of gold and silver also indicate special concern to ensure an adequate supply of the medium of exchange. The adverse effects of a shortage of the medium of exchange are well known.

It may be noted that Shari’ah has also used daily measures as a unit of measure to set its economic provisions, for example, the provisions to feed a given number of poor. There are instances where Shari’ah has relied on quantity rather than value. In the case of edible commodities it is the quantity of produce and not its value that determines its threshold (nisab) for zakah. Whereas, in the case of stocks in trade, it is the value of stocks in terms of gold and silver that determines the measure (or nisab) for zakah. By fixing the threshold of zakah for merchandise in terms of gold and silver Shari’ah has declared gold and silver to be a universal measure of value. This along with other evidence show that gold and silver have been used as a general unit of account, whereas other forms of money are used as units of account only for themselves (e.g. nisab for the charge of zakah on production of wheat is prescribed in terms of a specified volume of wheat). Thus it is seen that Shari’ah does not apply the same unit of account in all cases rather it adopts a unit of account that is most appropriate.

It is not difficult to fathom why Shari’ah has generally chosen gold and silver as the unit of account and measure of wealth. It is the most reliable, dependable and stable besides being the most suitable to perform this function across time and space. When it comes to measurement of wealth Shari’ah has given unequivocal importance to gold and silver for all times to come.

Common Medium of Exchange and Measure of Value

The economy depends totally on market forces to determine prices and allocate financial resources. The failure of markets to perform these functions may lead to gross injustice, inefficiency and imbalances leading to colossal losses for the society. Currency acts as a yardstick of measurement in the determination of price. Scientifically, technically and rationally the most essential condition for correct measurement is the yardstick itself, which must be precisely defined.

During the period of the Prophet (peace be upon him) and for a long period thereafter gold and silver coins were used as the medium of exchange and these satisfied the aforementioned condition. Further, Shari’ah mandates the establishment of just measurement, which necessitates the medium of exchange to be a precisely defined quantity of value. Sometimes it is contended that the availability gold and silver is not sufficient to allow it to function as the medium of exchange. Some people also contend that the use of gold and silver as money would be a waste of resources when money can be created free of cost (i.e. freely floating fiat money). One may ask what purpose it serves to keep it idle as reserves in banks. Further to meet the additional demand for money, paper currency redeemable with a specified quantity of gold or silver or its equivalent wealth may also be issued. As long as the money supply is controlled so as to ensure that every unit has a purchasing power equivalent to specified quantities of gold or silver there will be no demand for redemption and therefore no cost.

The most important advantage of this linkage would be to maintain the constant intrinsic value of money and stability in terms of purchasing power, which will not only attain market efficiency and justice in terms of prices and exchanges, but also the efficient allocation of precious financial resources.

Some scholars try to argue that freely floating fiat money allows the lowest rates of interest. This is not borne out by fact. Gold commands lower interest rates in exchange for providing higher certainty on return. Contrarily with paper money loans one is not

sure of the exact returns as the future value of paper money is more uncertain. In the case of a gold loan you know there is no depreciation. One ounce of gold will remain one ounce of gold. It will not shrink; it will not spoil; it is indestructible. No faith or credit is required in accepting it: you can test it with scales and acids.

Freely Floating Fiat Money

Fiat money is actually a transferable warrant that entitles the holder to use the purchasing power assigned to it by the market (on the day it is used) to buy goods and services and for the paying of dues. The purchasing power assigned to it varies in relation to money supply and GDP (Gross Domestic Product). In reality it is an artificial and variable quantity of purchasing power. Governments issue currency and banking institutions create credit almost free of cost to increase money supply through their double entry accounting system. Thus an increase in money supply leads to a corresponding increase in price levels and a corresponding reduction in the purchasing power of the money. In other words, a fall in the purchasing power of fiat money due to an increase in its supply is analogous to a reduction in the quantity of wealth per share when the number of shares in a given stock of wealth is increased. It is same as an increase in the number of gold coins made from a given quantity of gold by reducing the quantity of gold per coin, thus leading to a corresponding reduction in the purchasing power of the coin.

In Shari’ah the payment of a loan with gold coins of lesser weight mandates the debtors to increase the number of coins so that there is no loss to creditors in terms of the quantity of gold due and the quantity of gold received. This is the meaning we derive from the six commodity hadith (Mislin be Mislin), where equality in a transaction is required. However our contemporary scholars seem to have failed to notice this analogy when they compare gold and fiat money and call both currency. It needs reiterating that during the period of the Prophet (peace be upon him) gold coins of different weights were exchanged by weight and not by the count. Thus whenever the quantity of gold in gold coins was reduced, debts were required to be cleared by giving a correspondingly increased number of coins. By considering weight irrelevant in the case of fiat money most contemporary Islamic scholars seem to believe that one dollar is always equal to one dollar. By this argument they seem to grant fiat money a level of sanctity even higher than that which Shari’ah grants to gold and silver coins.

Shari’ah Compliance

Now let us examine the case of Shari’ah compliance in relation to freely-floating fiat money. The quantity of purchasing power associated with this money is determined by the market; it is known to fall consistently and at times abruptly. Thus scientifically, technically and rationally this money is not acceptable as a measure of value. It also follows that it is not Shari’ah compliant. Further we see persistent economic crises, as can be expected from the failure of the market to set/determine just/efficient prices. As discussed earlier while Shari’ah mandated that gold, including gold currency, be exchanged on the basis of the equality of its quantity (intrinsic value), quantity as well as intrinsic value are irrelevant in case of fiat money, thus it seems there is no way laws that applied to gold could be applied to fiat money.

As regards freely-floating fiat money, most of its supply is created by banks through their double entry bookkeeping system out of nothing and at almost nil cost. Newly created money together with the existing money supply shares the purchasing power requirement of the economy and thus it results in a corresponding reduction in the purchasing power of freely-floating fiat money. Thus a 10% increase in money supply results in a 10% reduction in the purchasing power of the money1. It is wrongly considered analogous with the change in the purchasing power of gold coins when gold become cheaper. Firstly, gold, being the most stable measure of value in the period, was actually used as currency; there was no way to know that it had actually become cheaper. Further considering that other things had a much less stable value it was always more reasonable to assign any fall in the purchasing power of gold to some other things becoming costlier. Additionally while gold has exceptional stability in its purchasing power, all measures of purchasing power are inaccurate and therefore none can be relied on to say definitively that gold became cheaper.

1The creation of new fiat money automatically reduces the wealth of those who hold it in form of money or deposits or as a lender or as a creditor. This confiscation of people’s wealth is clearly contrary to divine command ‘not to subject people in loss in respect of their dues’ (Quran: 55:7-9; 7:85; 6:152). Money is also created by banking institutions to earn interest. Thus, freely-floating fiat money clearly violates many Shari’ah requirements.

As regards our times, as long as freely-floating fiat money is accepted as money, those who create money have unlimited power to create money and this has the potential to disturb all values including the purchasing power of gold. However, even if it is accepted that the purchasing power of gold varies, it cannot be compared with freely-floating fiat money. For example, the most stable fiat money, the dollar, has depreciated about forty times with respect to gold since 1971. Even if a person holds a valley of gold he/she desires to hold another and no one faces any serious problems if they have no gold. In the case of a shortage of gold money, people will use alternative forms of money and therefore a shortage of supply or an excess of gold-based money will not have a very significant effect on its purchasing power. Furthermore, the quantity of available gold is growing very slowly and consistently and there is no justification for assuming that the supply of gold-based money may also rise or fall significantly, while the supply of fiat money may be raised without limit and almost free of cost. Thus there is no analogy between the continual reduction in purchasing power of fiat money and the changes in purchasing power of gold-based money, while, as discussed, the fall in purchasing power of fiat money due to an increase in its supply is strictly analogous to the fall in purchasing power of gold coins with a reduction in the quantity of gold used to make the coin. Historically the reduction of gold content in gold coins and the consequent fall in their purchasing power is well known. These are often considered a failure of the gold standard, while, in reality, these cases represent a failure in the manipulation of gold-based currency.

NEWHORIZON    July – December 2015 FOOD FOR THOUGHT

Fiat money acquires its value only due to its use as currency, while gold coins have value due to their intrinsic value; the quantity of gold contained in them. The Shari’ah provision mandating the exchange of gold only with an equal quantity of gold will disallow fiat money to be exchanged with anything having intrinsic value as fiat money has no intrinsic value. Even for those who argue that fiat money has intrinsic value as it holds purchasing power, it needs to be noted that the value it holds arises only at the time of its use because the law requires people to accept it as payment. Thus the value it holds does not reside in itself but comes from its use in the market. Based on the above arguments it is amply clear that fiat money is not wealth in itself. In any case it has no value other than its purchasing power. Therefore rejecting the argument based on the consideration of purchasing power while accepting fiat money may be less sensible and much less Shari’ah compliant.

Purchasing Power

During the Prophet’s (peace be upon him) time wheat, rice, dates, salt and barley were also used as a medium of exchange, however these were used infrequently and selectively. For obvious reasons only dinar and dirham were preferred for currency, while other items were allowed to be used as a medium of exchange for facilitation purposes. One cannot escape noting that for payment of zakah, except in cases of some particular produce, Shari’ah has relied on dinar and dirhams, thus implying these are a universal measure of value across time and space. The considered wisdom behind this is undoubtedly its strong reliability as a measure of value, unit of account and standard of deferred payment. It may be argued that it is this highest level of stability of purchasing power of these metals (i.e. gold and silver) that makes it the cause of these being considered the universal unit of account in Shari’ah. It also demonstrates that the opinion of certain scholars, who think that purchasing power is not much relied on in Shari’ah, is without any basis.

Considering that the property of the medium of exchange that the market uses in determining prices is its purchasing power, is it not preferable to have a currency that has more stable purchasing power? The purchasing power of a representative basket of Amwal-e-Ribuviah will be more stable. Alternatively a general representative basket of national products will definitively have more stable and reliable purchasing power than paper currency with zero intrinsic value. The market mechanism that assigns purchasing power to fiat money links it with an equivalent basket of national products. A reduction in the quantity of the aforesaid product basket results in a corresponding reduction in the purchasing power of fiat money. Gold and silver, though they provide the most reliable measure of purchasing, are not suitable for measuring a reduction in the purchasing power of fiat money, as gold and silver have little weight in the national product basket that symbolises money. Further, as discussed, Shari’ah provides for adaptation of the most suitable measure for the given purpose. Thus a nationally representative product basket (or the basket consisting of Amwal-e-Ribuviah) may be the best available measure of purchasing power for fiat money, hence more acceptable in Shari’ah due to the non-availability of a better measure.

During the Prophet’s (peace be upon him) period currency with zero intrinsic value did not exist (as he and his companions had had no dealings with such a currency), but today the intrinsic value of most currency is zero and its acceptance for payment is only because of the fiat of government. In this entirely new environment expecting direct guidance from Shari’ah is not possible. In addition there is an absence of any reliable standard of value through which all commodities could be measured precisely. Even gold and silver could no longer be expected to play the role they used to play when they were used as currency. Today the prices of even these precious metals are more at the mercy of speculators and traders and therefore their own fair price itself is debatable. In cases where a commodity is normally borrowed or held for its utility it is only natural to expect the borrower to return the same quantity of at least equal quality (if not more at his sole discretion). Is it not fair that the lender should get back the same utility as the borrower derived from the borrowed item? In fact introducing another element such as the purchasing power of the item borrowed in this case will induce uncertainty (gharar) into the transaction; hence the Shari’ah requirement that the lender must return the same quantity and quality is simple and just. This however does not question the concern Shari’ah has with regard to the stability of the purchasing power of currency. The stability of the purchasing power of currency is essential to allow the market to determine just and efficient prices for various products and services constituting the economy. That was the case when gold and silver coins were in use and this Khalqi currency (currency by creation/nature) served the economy well through the use of a universal unit of account with inbuilt intrinsic value. Rather it is fair to say that Shari’ah takes full cognisance of purchasing power where it serves the purpose of equity and justice.

Determination of Purchasing Power

Many contemporary scholars argue that since purchasing power cannot be measured correctly no cognisance can be taken for changes in the purchasing power of fiat money. It is strange to believe that freely-floating fiat money, despite having no intrinsic value except the purchasing power that the market assigns it, has become the undisputed yardstick for all of our economic dealings, whereas scholars continue to argue that Shari’ah does not rely on purchasing power. Shari’ah relied on the quantity of gold and silver contained in the coins. The purchasing power of gold and silver coins is best measured in terms of the quantity of gold and silver the coins contained and therefore it is more appropriate to hold that Shari’ah relied on purchasing power than to hold that it did not rely on it.2

2It may be more correct to say that Shari’ah relies on intrinsic value but it is not correct to hold that Shari’ah does not rely on purchasing power.

The purchasing power of gold coin is best measured in terms of the quantity of gold contained in the coin. Similarly the purchasing power of a silver coin is best measured in terms of the quantity of silver contained in it. Based on the same corollary the purchasing power of fiat money is best measured in terms of the market-determined quantity of the national product basket represented by that money. The reliance of Shari’ah on quantities

of gold and silver in their respective coins in determining their respective values underscores the reason why Shari’ah should rely on the quantity of the national product basket in the case of fiat money.

Some Shari’ah scholars, while arguing in favour of non-reliance on the purchasing power of fiat money, contend that purchasing power is calculated using the prices of products and services and, there being different methods for its determination, none of them could be relied upon for an accurate measure. This is true; nothing exists that can be used as a measure of value of all other things. This is because the purchasing power of all items is subject to the law of supply and demand. The indices used to measure purchasing power are also not foolproof as these rely only on some major items and not on all. Thus each involves some error of estimation and calculation; however one cannot deny that Shari’ah prefers the best possible measure. If parties to a contract agree on a particular measure, the dues will be known accurately and there will be no uncertainty. Thus what is essential is that parties must mutually agree to a method so that there remains no uncertainty regarding dues. If the government links its currency to a product basket, the use of that product basket will then become essential to avoid uncertainty. The Wholesale Price Index and Consumer Price Index are generally used for such measures.

Fiat money is a transferable warrant which entitles its holder to use the purchasing power assigned to it by the market (at the time of its use) to buy goods and services and for payment of dues. The purchasing power assigned to it varies with the quantity of the money supply to national product, thus it brings variation in purchasing power. In other words lending fiat money is actually lending purchasing power and therefore to clear the dues the borrower must repay the same purchasing power.

Take the example of someone who borrows $10 today and wants to pay it back after five years. Suppose in this period the purchasing power of the dollar falls to half, then to clear this loan the borrower must return $20 (double the number of dollars borrowed). Let’s take another example, someone borrows 10 dinars containing 4.25gm of gold each, but can that person pay back this loan by using dinars containing only2.125gm of gold? Yes, but he will have to double the number of dinars to return the same quantity of gold as he had originally borrowed. The argument is simple, when you borrow dollars what you really borrow is its purchasing power and therefore you must pay back the same quantity of purchasing power.

Acknowledgement

Dr Sharik Nisar has provided critical comments and has helped to improve the presentation and readability of the paper.
References and further reading:
Hifzur-Rab (2002), ‘Problems Created by Fiat Money Gold Dinar and Other Alternatives’
Meera, A.K. Mydin (ed.), (2002), International Conference on Stable and Just Global Monetary System. IIUM, Kuala Lumpur
Hifzur Rab (2004) ‘Impact of Inflation on Mudarabah Profits: Some Observations’ J.KAU: Islamic Econ., Vol. 17, No. 2, pp. 21-25 (1425 A.H / 2004 A.D)
Hifzur Rab (2006) ‘Economic Justice in Islam’ AS Noordeen, Kuala Lumpur, Malaysia.
Hifzur Rab (2008), Manipulation of Currency and Reality of Riba, presented at ‘International Conference on Ijtehad and Ifta in 21st century: Challenges and Prospects, Volume 1’, Published by IIUM, Kuala Lumpur, Malaysia.
Hifzur Rab (2009), ‘Freedom, Justice and Peace Possible Only with Correct wealth measurement with a Unit of Wealth as Currency’ presented at International Conference on Unity of Sciences held on Jan14-15 at BCG trust University Chittagong.
Hifzur Rab (2010), Interest, monetary manipulation and misunderstanding are stifling emergence of just and efficient Islamic alternatives, presented at Seventh International Conference on Unity of the Sciences held in Jan 10 at UKM, Malaysia.
Hifzur Rab (2011), ‘Monetary correction is most potent tool of poverty alleviation’ presented in 8th International Seminar on ‘Tauhidi methodology applied to microenterprises development, Jan 7-8, Jakarta
Hifzur Rab (2012), Market, system of interest, free floats and way out, presented at International Conference on Unity of Sciences held on Jan14-15 in Jakarta.
Asmatullah, Money and Its Usage: An Analysis in the Light of Shariah translated by Omar Javaid, edited by Erum Surfraz
Mohd Arif ed., (1982) Monetary and Fiscal Economics of Islam, selected papers International Seminar held in Makkah, ICRIE, King AA Univ. Jeddah
Meera, A.K.Mydin ed, (2002) ‘Proceedings of the International Conference on Stable and Just Global Monetary System. IIUM, Kuala Lumpur
Meera, A.K. Mydin (2004), Theft of nations, Pelanduk Publications Sdn Bhd, Selangar, Darul Ehsan Malaysia.
Mundell R.A. (2001), ‘Currency Areas, Volatility and Intervention’ http://polyconomics.com/showarticle.asp?articleid=1720
Smith J.W (2010), Economic Democracy: The Political Struggle of the 21st Century, IED Press http://iedpress.com
Tarek El Diwany (1997) ‘The Problem With Interest’ TA-HA Publishers UK
Umar Ibrahim Vadillo, The Return of the Gold Dinar, URL: http://users.netmatters.co.uk/%20murabitun/Return/Noframes
Zulkifli Bin Hasan, Characteristics-of-money-from-fiqhi-perspective (available online)

Moin Qazi

Mr Hizur Rab was born and brought up in Allahabad. He has an MSc from the University of Allahabad (India) 1976. He has published regularly in the field of Islamic economics with a particular interest in the areas of currency and riba.

NEWHORIZON     Ramadan - Shawwal 1436 - Rabi Al Awwal 1437 COUNTRY FOCUS

Islamic Finance in Sub-Saharan Africa

Andrea Wharton, Editor, NewHorizon

Introduction

According to the Pew Research Centre 15% of the world’s Muslims live in sub-Saharan Africa (SSA), some 242.5 million people. The largest proportion lives in Nigeria, 75.7 million, making up 47.9% of the population, predominantly in the north of the country. There are, however significant populations in Niger with 15.6 million Muslims (98.3% of the population), Tanzania with 13.5 million (29.9% of the population), Senegal with 12.3 million (95.9% of the population), Burkino Faso with 9.6 million (58.9% of the population) and Côte d’Ivoire with nearly 8 million (36.9% of the population). A second tier of countries includes Mozambique with 5.3 million Muslims (22.8% of the population), Ghana with nearly 4 million (16.1% of the population), Uganda with 3.7 million (12% of the population), Cameroon with 3.6 million (18% of the population) and Kenya with 2.9 million (7% of the population). The Gambia has just 1.7 million Muslims, although this accounts for 95.3% of the population and then there is South Africa with just 110,000 Muslims (1.5% of the population).

Introduction

According to the Pew Research Centre 15% of the world’s Muslims live in sub-Saharan Africa (SSA), some 242.5 million people. The largest proportion lives in Nigeria, 75.7 million, making up 47.9% of the population, predominantly in the north of the country. There are, however significant populations in Niger with 15.6 million Muslims (98.3% of the population), Tanzania with 13.5 million (29.9% of the population), Senegal with 12.3 million (95.9% of the population), Burkino Faso with 9.6 million (58.9% of the population) and Côte d’Ivoire with nearly 8 million (36.9% of the population). A second tier of countries includes Mozambique with 5.3 million Muslims (22.8% of the population), Ghana with nearly 4 million (16.1% of the population), Uganda with 3.7 million (12% of the population), Cameroon with 3.6 million (18% of the population) and Kenya with 2.9 million (7% of the population). The Gambia has just 1.7 million Muslims, although this accounts for 95.3% of the population and then there is South Africa with just 110,000 Muslims (1.5% of the population).

Interestingly, some of the countries with smaller Muslim populations such as Kenya have historically led in the campaign to establish Islamic finance in their countries, with dominant Nigeria coming slightly later to the party. In fact one of the first SSA countries to issue a sukuk was South Africa with the smallest Muslim population in the region. In most countries the first hurdle to overcome is the need to amend financial legislation to facilitate the establishment of Islamic financial institutions (IFIs) and to allow governments and corporates to issue sukuk. In some cases such changes are fraught with difficulties as has been the case in Nigeria, where the tensions between the Christian south and Muslim north have been well publicised in recent years. Kenya with its much smaller Muslim population seems to have had far fewer problems.

The Historical Background

Islam arrived in sub-Saharan Africa as early as the 8th century travelling with Arab traders from North Africa and the Middle East. The Muslim merchants, however, brought more than trade goods to exchange for gold; they facilitated trade by introducing concepts such as contract law and credit arrangements. Perhaps even more critically they became valued for the literacy they brought, particularly written script, which African rulers rapidly discovered could help them to administer their kingdoms. Initially, however, the merchants were kept at arms’ length. In ancient Ghana, a kingdom that was very different from the modern state of Ghana, encompassing the Niger Delta and Mali, as well as parts of Senegal and Mauritania, merchants were not allowed to stay in the cities overnight.

The Middle Ages saw a divergence in the patterns of development between East and West Africa. By this period Islam began to flourish in West Africa with the conversion of some of West Africa’s most powerful rulers. The Islam that they practised, however, would not be recognised by the purists; it combined Islamic beliefs and aspects of traditional African religions. It was the 19th century that saw significant changes take place. Initially movements generated from within the Muslim community sought to transform the practice of Islam into something that would be recognised by the rest of the Muslim world.

In East Africa, however, Portuguese explorers and traders searching for a sea route to India discovered the ports and trading posts established by Arab traders up and down in the east coast of Africa. They were not content to simply takeover these Islamic outposts; they were zealots determined to establish their brand of Christianity in the area. They effectively wiped out the towns and trading posts, replacing them with forts to protect their own trade routes and using all the horrors of the Inquisition to convert the population to Christianity. Only in the northern part of East Africa was Muslim influence preserved through the rearguard action of the Sultan of Oman.

By the late 18th and 19th centuries West Africa was also coming under the influence of European powers, mainly Britain and France. While European imperialism effectively brought an end to Islamic rule in parts of the region, the colonial powers clearly saw

By the late 18th and 19th centuries West Africa was also coming under the influence of European powers, mainly Britain and France. While European imperialism effectively brought an end to Islamic rule in parts of the region, the colonial powers clearly saw the advantages of recruiting local rulers to help them administer their new colonies and there was therefore a certain tolerance of Islam. This tolerance did, however, have its limits. The British, for example, discouraged people from Northern Nigeria going to North Africa to further their Islamic studies. They did not want new and possibly radical influences disturbing the status quo.

Today, those countries to the north of the SSA region such as Gambia, Guinea, Mauritania, Mali and Niger are predominantly Muslim. To the south of the region, in countries such as modern Ghana and Kenya, Muslims are very much in the minority. Countries in the middle, most notably Nigeria, are split with their northern regions being largely Muslim and the south largely Christian, which leads to some tensions spilling over into the broader society, with banking being no exception. For example, in 2011 the 20 Anglican bishops of Sapele in the far south of Nigeria issued a statement at the end of their first synod urging the government to ‘review the conditions for the approval of non interest banking and make all possible amendments that would ensure the interest of every religious group in Nigeria.’

Banking in Africa

According to the World Bank some 66% of the population of SSA are unbanked. There are a number of reasons for this low penetration and some of these take us into the realms of the ‘what came first, the chicken or the egg’ argument. For example, in many countries the financial sector is poorly developed with only South Africa and Nigeria having banking sector assets in excess of $100 billion ($361 billion and $166 billion respectively). The banks in the SSA also tend to concentrate their lending activities on large corporate and government projects, neglecting SMEs and individual clients. Is this because the SMEs and individuals tend not to have bank accounts, because the branch networks are underdeveloped and these groups therefore find it difficult to access banking facilities or do the banks not develop their networks because of a lack of interest from these groups? Certainly weak financial regulation and fairly frequent banking crises in the region can have done little to help inspire confidence in the general population. That situation is changing, but robust banking and financial regulation is fairly new in many countries in the SSA.

It is against this background that Islamic finance is struggling to emerge as a credible alternative to conventional finance. This article will take a look at just what is happening in the some of the countries of the SSA, which have made some progress with Islamic finance and a snapshot of those countries where the journey is just beginning.

Kenya

There has been a Muslim presence in Kenya since the 8th century and for most of the time since then the Muslim community was mainly located in the coastal regions, but events in neighbouring countries during the latter part of the 20th century boosted that population. The arrival of many Ugandan Asians in the country in the 1970s was responsible for a relatively small increase in the Muslim population, but it was the civil war in Somalia that was responsible for a doubling in that population.

The 2009 Kenyan census reported that there were 4.3 million Muslim in Kenya, 11% of the population, although Pew Research put the figure much lower at 2.9 million (7% of the population). To add further confusion Muslim leaders in the country claim the figure is much higher; perhaps even 30% of the total population. Whatever the real figure is, conventional financial institutions and Islamic banks have seen an opportunity, helping to finance businesses catering to the Islamic market, such as restaurants, hotels, food stores and halal slaughter houses, as well as developing Shari’ah-compliant wealth management and investment products targeted at some of the wealthy Somali immigrants.

NEWHORIZON     July – December 2015 COUNTRY FOCUS

Barclays were the first put a toe in the water in 2005 followed by two fully-fledged Islamic banks licensed by the Central Bank of Kenya (CBK) in 2007, First Community Bank and the Gulf African Bank, which opened for business in 2008. They have since been joined by a number of window operations from, for example, Standard Chartered Bank under the brand name Saadiq and KCB, Kenya’s largest lender by assets. Dubai Islamic Bank (DIB) is eager to join the list of fully-fledged Islamic banks in Kenya and after being approval in principle by Kenya’s central bank recruited staff for a proposed launch in early 2016, but in November 2015 the central bank decided to put a temporary hold on the licensing of any new banks in order to enhance banking regulations. This move follows the 2015 collapse of Imperial Bank with which DIB seems to have had some dealings, including taking over Imperial Bank’s former head office and there are suspicions of joint ownership. For the time being, therefore DIB’s plans in Kenya are on hold.

Currently Islamic banking accounts for about 2% of Kenya’s total banking assets. This is very little changed since we last reviewed Islamic banking in Kenya in early 2011. Curiously, this is all happening without any real regulatory framework for Islamic finance, but Islamic financial transactions are recognised by the central bank through an amendment to existing finance legislation. Over the last few years there have been occasional rumblings from the central bank suggesting that it may be in the process of establishing a proper framework for Islamic finance, but that is all they are - rumblings.

First Community Bank

The founding investors in FCB were a number of businessmen from Kenya, Kuwait and Tanzania. They have 17 branches across Kenya, with a heavier concentration in the south of the country. They also have 165 agencies mostly based in neighbourhood stores. In 2014 they also introduced mobile banking facilities.

In 2010 FCB set up Kenya’s first Islamic investment bank, FCB Capital and FCB Takaful Insurance Agency. In 2014 they appointed their first Shari’ah Supervisory Board. In early 2015 they also became a member of the Islamic Financial Services Board.

The bank began to operate profitably after three years of operation. Currently the bank has an acting general manager, Abdallah Abdi Ali, the former Head of Risk and Compliance at FCB, who has a background with Fina Bank in Rwanda and Uganda. He replaces Omar Sheikh recruited in early 2014 from Barclays Bank Kenya.

Gulf African Bank

Gulf African Bank is the larger of Kenya’s two Islamic banks both in terms of net assets and profits. It is principally backed by Middle Eastern investors. The CEO is Mr. Abdalla Abdulkhalik, who was previously with the SAMBA Financial Group in Saudi Arabia. It currently has 14 branches, but it also has agreements with the National Bank of Kenya and the Cooperative Bank for simple transactions such as withdrawing cash and cheque deposits, as well as a mobile phone banking facility. The bank set up a takaful subsidiary in 2013

Sukuk

Kenya has been talking about issuing a sovereign sukuk for some time, at least two years, but it seems that the country is waiting for legislative changes before embarking on a sukuk issuance. Kenya’s plans were again confirmed in early 2016 by Henry Rotich, Kenya’s Treasury Secretary speaking at an Islamic Finance conference in Nairobi. He suggested that a sovereign sukuk could come during 2016. In addition to legislative changes Kenya’s Treasury apparently plans to set up a National Shari’ah Advisory Council to advise on sukuk and other Islamic financial matters, but again there seems to be no firm timeframe.

Perhaps of more concern is Kenya’s growing debt (currently in excess of 51% of Gross Domestic Product), fuelled by increasing spending and a faltering revenue collection system. Given this situation and the plummeting oil prices in GCC and Middle Eastern countries, who might otherwise be interested in a Kenyan sukuk, it is questionable just how attractive issuance in the near future would be.

Kenya’s Ambitions

In May 2010 the then Governor of the Central Bank of Kenya (CBK), Professor Njuguna Ndung’u, in a paper delivered at a conference in Nairobi, asserted that Kenya had the potential to become the regional Islamic finance hub. He also commented that the Central Bank of Kenya had had to make adjustments to some of its regulations to accommodate Islamic banking. For example, the law in Kenya required banks to pay interest on savings accounts as long as a minimum balance is maintained. Changes to the Banking Act now allow Islamic banks the leeway to give some alternative form of return on Shari’ah-compliant products.

At the same time CBK also announced their intention to launch Shari’ah-compliant treasury bills (sukuk). (Kenya has established a partnership with the government of Qatar to help them develop the necessary regulatory framework to allow this to happen.) Analysts believe that a government sukuk could be an important factor in establishing Kenya as the Islamic finance hub in the region. It would also have been a welcome move for the two Islamic banks in the country, which needed new Shari’ah investment opportunities to underpin their growth. The CBK were very aware of this requirement and did set aside a portion of a government infrastructure bond in 2009 for Islamic investment. Both Gulf Africa Bank and FCB did in fact take advantage of this opportunity.

So Kenya were certainly ‘talking the talk’, but so far they have not delivered on these promises, which may have had some impact on the failure of the two Islamic banks to significantly increase their share of total banking assets. Kenya were one of the first SSA countries to make the move into Islamic finance, but the question now is whether their ambitions to become a regional Islamic finance hub are likely to be disappointed as other countries that started later, but have moved faster, snap up that particular crown. Until very recently Kenya’s banking system had been seen as one of the most developed and robust in SSA, but towards the end of 2015 the CBK put Dubai bank into receivership and placed Imperial Bank under government control, in both cases for alleged malpractice. Rumours that the CBK planned further closures were hotly denied by the CBK, but the immediate result was that banking shares on the Nairobi Stock Exchange were hit heavily.

Much will now depend on the new CBK Governor, Patrick Njoroge, who took control in mid 2015, and his ability to put the economy and the banking system back on a stable footing. He has spent 25 years at the International Monetary Fund in Washington, where he gained considerable experience working with countries suffering severe economic problems. He is also a member of the Roman Catholic Opus Dei organisation, whose members are called to live a moral and ethical life within the context of the everyday world, including through their work. Given this, it is interesting that, since Njoroge took control, the CBK has moved against two banks seen to be flouting regulatory roles and placed a temporary ban on new banking licenses.

In theory, he should find the ethical banking aims of Islamic finance attractive. Can we, therefore, expect to see him push forward a proper legislative framework for Islamic finance in Kenya?

NEWHORIZON     Ramadan - Shawwal 1436 - Rabi Al Awwal 1437 COUNTRY FOCUS



Nigeria

Nigeria is almost 50/50 Muslim and non Muslim in terms of its population. Just as with pre partition India and Sudan, Nigeria’s Muslim population is geographically concentrated, so that the north of the country is predominantly Muslim and the south is predominantly Christian. Tension between the two communities has been a part of the landscape of Nigerian politics ever since independence in 1960 and the problems were exacerbated in 2010 by the election of southerner, Goodluck Jonathan, as president, following the death after a long illness of Umaru Yar’Adua, a northerner, in May 2010. (Under an informal arrangement dating back to when military rule came to an end in 1999 it was agreed that the presidency would alternate between a member of the community from the Muslim north and one from the Christian south.) Northerners argued that their ‘turn’ in the presidency had not come to an end and consequently religion - based sensitivities ran high.

In elections in 2015 Muhammadu Buhari was elected president. He is from the north of Nigeria and is a Muslim. An ex army officer, he had enjoyed a spell as military governor for almost two years in 1984 and 1985 following a military coup in December 1983. He has a reputation for incorruptibility, but his period as military governor was marked by human rights abuses, perhaps overzealous attempts to fight endemic corruption in the country. A former president, Olusegun Obasanjo, has commented in his autobiography that Buhari is unlikely to be a good economic manager.

In addition to the political and social tensions, 2009 saw Nigeria trying to stabilise its banking industry after a debt crisis in 2009 almost led to its collapse. The chief executives of eight lenders were fired by the central bank, which then pumped 620 billion naira (approximately $4 billion US) into the troubled banks, creating a state-owned company to buy bad debts.

This is the backdrop against which Sanusi Lamido Sanusi, then Governor of Nigeria’s central bank, released final guidelines in June 2011 for non- interest banks that would allow the establishment of Islamic banking in Nigeria. (Draft guidelines had been issued in March 2009).

Although Sanusi had a reputation for bringing economic stability and much needed reform of the banking system to Nigeria, in early 2014 Sanusi was suspended by President Goodluck Jonathan on the grounds of ‘financial recklessness’ and ‘far-reaching irregularities’. The suspension came just days after Sanusi had exposed $20 billion of missing oil revenues. He was replaced by Godwin Emefiele.

The Nigerian Journey

The basic regulation that would permit the establishment of Islamic banking in Nigeria is not in fact that new. The Banking and Other Financial Institutions Act (BOFIA) came into law in 1991 and this is seen as the legal basis for the establishment of Islamic banking in Nigeria. One of the restrictions imposed was as that no bank should use the words Islamic, Christian, northern or southern in their titles, so as not to exacerbate religious and political tensions.

In June 2011 the Central Bank of Nigeria (CBN) issued revised guidelines for non - interest banking. They were at some pains to make it clear that non- interest banking was not just about Islamic banking, but also other forms of non - interest banking; additionally banks were strictly prohibited from discriminating against individuals or institutions on religious or any other grounds. They also removed any reference to a Shari’ah Council and replaced this with the term Advisory Council of Experts, whose responsibility will be ‘to advise the CBN on the appropriateness of relevant financial products to be offered by

the institutions.’ In May 2011 Jaiz Bank was granted a preliminary licence to set up an Islamic bank and in June Stanbic IBTC Bank, a division of South Africa’s Standard Bank, was granted a similar approval to set up a Shari’ah compliant banking window.

Jaiz Bank

Jaiz opened its first three branches in January 2012. This has since expanded to 21 branches. Initially the bank’s licence was limited to north western and north eastern Nigeria, but at the beginning of 2015 the licence was extended to allow the bank to operate across the whole of Nigeria. With the extension of its licence Jaiz Bank has said that its ambition is to open 100 branches across Nigeria.

The last annual report for the year ended 31 December 2014 showed that the bank had managed to return a profit of N157 million (Naira) after its first two years of operations. Assets grew 24% in 2014 to reach N 42 billion. Then CEO, Mohammad Islam, highlighted the problems the bank faces with the lack of liquidity instruments, which he believes have constrained growth. When the results for 2014 were released in mid 2015, Islam was cautiously optimistic about future growth, but since then oil prices have failed to stabilise and global economic conditions have worsened, so 2015/16 may prove challenging.

In November 2015 Islam’s two-year contract came to an end and he has replaced as CEO by Mahe Abubakar, former Head of Business Development. Interestingly, Abubakar has the title ‘acting CEO’, suggesting that either the bank’s decision not to renew Islam’s contract or his decision to leave, was somewhat unexpected. Stanbic Stanbic is part of the South African Standard Bank Group and operates as an Islamic window operation in Nigeria offering Shari’ah-compliant services through all of its 180 branches in the country.

Sukuk

In 2013 Osun State in the south west of Nigeria issued the country’s first sukuk. It was a seven-year bond worth N10 billion offering a yield of 14.75%. This did not, as had been predicted at the time, lead to a flurry of similar issues.

In early 2016 the news came that Nigeria’s Debt Management Office (DMO) and the Capital Markets Authority have agreed to cooperate on the issue of a sovereign sukuk by the end of 2016. The DMO included plans for sukuk in its strategic plan published three years ago, so any issue has been a long time coming. Given the prevailing economic climate, particularly the falling price of oil, which affects not only Nigeria, but also Middle Eastern and GCC countries, from where it is hoped much of the investment will come, we would not be surprised if 2016 is an optimistic date for a sovereign sukuk issuance, although May 2016 has been suggested as a date for issuance with the caveat that this date relies on there being ‘no unforeseen circumstances’.

Nigeria’s Ambitions

Nigeria, like Kenya, would like to become the hub for Islamic finance in SSA, but like Kenya, Nigeria has some more fundamental problems to solve before it can lay claim to that crown. The internal security situation with Boko Haram, crashing oil prices and corruption in both government and business will not encourage international investors. Periodically the country seems to be making progress to address some of these issues, such as the CBN’s moves to stabilise the banking system in 2009, but there is no real sense of any inexorable progress at the present time.

NEWHORIZON     July – December 2015 COUNTRY FOCUS



Senegal

Yet another African country seeking to become the Islamic finance hub in SSA is Senegal. By the standards of the region it is politically stable; has a fairly well-developed financial infrastructure and levels of corruption in business and government appear to be low. It beat much bigger economies such as South Africa and Nigeria to the pass, when it issued a sovereign sukuk in mid 2014 worth 100 billion CFA Francs ($168 million). It also has an Islamic bank, Banque Islamique du Sénégal.

Traditionally, the former French colony, had looked to the west for its borrowing requirements, but with the financial crisis of 2008 Senegal began to look around for alternatives. With a majority Muslim population and Gulf States with a surplus of money to invest, Islamic finance seemed attractive. What Senegal lacks currently is a comprehensive regulatory framework for Islamic finance; legislative changes have been piecemeal, but perhaps this is an easier issue to address than some of the more fundamental problems faced by other SSA countries.

South Africa

Another country with ambitions to become SSA’s Islamic finance hub is South Africa. South Africa has a Muslim population of just 110,000, less than 2% of the total population, but of all the SSA countries it has the most sophisticated legislative and financial infrastructure. They have not only amended laws to enable Islamic financial institutions (IFIs)to be set up, but they have also amended tax laws to allow IFIs to compete with conventional financial institutions on a level playing field.

The country has one fully-fledged Islamic bank, Al Barakah and three Islamic window operations through ABSA (part of the Barclays Group), HBZ (part of the Habib Group) and First Rand. In 2014 Islamic banking assets made up between 1 - 2% of total banking assets in South Africa. There are also 11 asset management companies offering Shari’ah - compliant investment opportunities. There was one insurance company offering takaful through a window operation, but it withdrew from all short-term insurance business in 2015, including the takaful window.

South Africa issued a sovereign sukuk towards the end of 2014. The 5.75-year sukuk was worth $500 million and was four times oversubscribed. It was very much designed to attract new investors, particularly from the GCC and the Middle East. Following this it was hoped some state-owned organisations and large corporates would follow suit and raise money through sukuk, but none had made a move by the end of 2015.

Other SSA Countries

Cote d’Ivoire issued a five-year sovereign sukuk in December 2015. The bond was worth CFA150 billion and investors were 56% West African, 6% North African and 38% Middle Eastern. It was arranged by the Islamic Corporation for Private Sector Development.

Ghana is believed to be on the point of licensing its first Islamic bank believed to be a Saudi Arabian institution. There are also rumours that Ghana may be planning a sovereign sukuk in 2016.

Niger is also planning a sukuk programme, but there is no indication of the timing as we go to press.

In early 2016 Uganda passed laws that will allow Islamic banks to be set up in the country.

In Summary

Islamic finance is beginning to establish a foothold in some African countries, not necessarily those with a large or majority Muslim population. African governments hungry for investment to develop have not been slow to appreciate the potential investment funds that could come from the countries of the GCC and the Middle East. To tap into many of those funds they need to offer Shari’ah-compliant investment opportunities.

While many countries have been talking about sovereign sukuk for several years, only Cote d’Ivoire, Senegal and South Africa have actually turned that talk into action. With global economic uncertainty – the slowing of the Chinese economy, interest rate rises in the US and falling oil prices, for example,

potential African issuers may find the sukuk market more difficult than they would have a year ago. In addition potential investors like to see stable political conditions and a robust financial infrastructure in the countries in which they invest. These attributes are still relatively rare in SSA.

On the Islamic banking front, notably in Kenya and Nigeria, although Islamic banks have been established their progress is hardly stellar. Some of the largely unexplained personnel changes at the topmost levels of these banks are also slightly disturbing.

Obove all, to establish Islamic banking so that it can compete effectively with conventional banking, there needs to be a comprehensive set of banking laws. For example, Islamic banks in Kenya still operate with a rather Heath Robinson amendment to its existing financial legislation, despite the fact that they have been in operation since 2008.

While there are undoubtedly opportunities for Islamic finance in SSA, realising these opportunities is likely to be a long haul. Which of the countries will emerge as the Islamic financial hub in the region is debatable. The largest Muslim population is in Nigeria, which also has the largest economy in the region, but Senegal has a substantial Muslim population, which accounts for nearly 96% of the total. Senegal is also politically stable, with few of the religious tensions that characterise Nigeria and has a well developed financial infrastructure. South Africa is undoubtedly the most sophisticated legislative and financial infrastructure, but has a tiny Muslim population. It is the second largest economy in the region and is already a regional hub in conventional finance.

Kenya is to some extent the wild card. It has a relatively small Muslim population, just 7% of the total, but the World Bank believes the country has ‘the potential to be one of Africa’s great success stories from its growing and youthful population, a dynamic private sector, a new constitution, and its pivotal role in East Africa.’ The economy was expected to grow a healthy 6% in 2015.

We would not care to forecast which country will be the winner. There are too many factors in play, which have the potential to derail any of the lead contenders. We do, however believe that the winner will emerge from one of the current front runners – Kenya, Nigeria, Senegal or South Africa.

Afterthought

In the preparation of the article on Sub-Saharan Africa (SSA) in this issue, it was evident that one of the obstacles to the growth of banking, both conventional and Islamic in SSA countries, is the issue of financial inclusion. This is particularly relevant to Islamic finance, which sets out to adopt a moral and ethical approach to finance including the alleviation of poverty and charitable works. At a recent conference in Pakistan Dr Ishrat Hussain, Dean Institute of Business Administration (IBA) Karachi and former governor State Bank of Pakistan said, that the prevalent Islamic finance system has a long way to go in achieving its aims, mainly relating to poverty reduction, agriculture, agri-business, small and medium enterprises and low-cost housing and is rather placing the emphasis on deposit and asset growth.

In an IMF (International Monetary Fund) paper titled ‘Can Islamic Banking Increase Financial Inclusion?’ published in 2015, the authors identified weak financial infrastructures, and embryonic regulatory systems as significant barriers to the growth of banking in many developing countries, applying as much to conventional finance as to Islamic finance. In relation to Islamic banks, the authors suggest that Islamic banks may need to improve their operating model. One option they identify is for Islamic banks to set up separate SME (small and medium size) business units geared to understanding the dynamics of this sector and tailoring solutions appropriate to their needs. They also identify the need to improve staff training in Shari’ah-compliant products and services, streamline transactions, i.e. make them easier and faster and introduce better credit evaluation systems.

They also believe that Islamic microfinance has more to offer than conventional finance, because it can use zakat and waqf and, because it is based on profit and loss sharing, the imposition of unreasonable rates of interest are avoided. Again the authors suggest Islamic banks need to open separate microfinance branches.

"
NEWHORIZON     Ramadan - Shawwal 1436 - Rabi Al Awwal 1437 POINT OF VIEW



Maqasid al Shari’ah and the Financial Crisis

Abdulkarim Ramadhan, studying for the IIBI Post Graduate Diploma
in Islamic Banking and Insurance

Islamic banking performs the same economic and financial functions as conventional banking, that of financial intermediary. Beyond that intermediary role, however, Islamic financial institutions are also required to focus on the goal of socio-economic justice. This entails embedding standards of moral conduct in all their dealings. That is achievable only by knowing and understanding the wisdom of establishing Shari’ah objectives in financial dealings that do not negate or distort the aspirations of fairness, justice and equity in all dealings that must ultimately be for the public good (maslah).

The lack of moral standards to go along with government and industry regulations is believed to have been a key ingredient of the recent financial meltdown. Combining some aspects of Maqasid al-Shari’ah with government and industry controls could have helped to prevent most of the rot that caused the financial crisis.

Maqasid can be defined as the higher objectives of the rules of Shari’ah aimed at achieving socio-economic justice as well as enhancing the welfare of the community. Maqasid means the intent, objective or purpose of creating harmony with others in relation to welfare or benefit. The vital element is to preserve the public good.

To try and identify what aspects of Maqasid could have made a difference and how this could have been achieved it is necessary to scrutinise the reasons for the meltdown. Many causes for the financial crisis have been suggested.

The US Senate’s Levin-Coburn report concluded that the crisis was a result of ‘high-risk, complex financial procedures, undisclosed conflicts of interest ....’, while the financial crisis enquiry commission concluded that the crisis was caused by ‘widespread systematic failures in financial regulations and supervisions of corporate governance and risk management at many financial institutions’ and ‘a combination of excessive borrowing, risky investments and lack of transparency by financial institutions.’ Numerous checks and controls, but that did not prevent the financial crisis.

Some key words include avoidable risky investments, systematic breakdown in accountability, undisclosed conflicts of interest. All share a common denominator - eroded moral conduct and disregard for the public good. According to Professor Rodney Wilson of Durham University, citizens can abide by national laws

and yet behave in an immoral way, including in financial dealings where laws are unable to curb speculative behaviour or exploitation of the gullible. These comments sum up what was happening before the crisis. Certain aspects of Maqasid al-Shari’ah, if embedded into the regulatory system, might have significantly helped.

One of the cornerstones of Maqasid is maslah, the preservation of public good. Renowned scholar Tadi al-din ibn Taymiah (d 3128 BC) in his teachings on the study of Maqasid added fulfilment of contracts, the preservation of ties of kinship, honouring the rights of one’s neighbours, sincerity, trustworthiness and moral purity, which expanded Maqasid in terms of promoting benefit and preventing harm. Amongst the causes of the financial crisis discussed earlier were lack of transparency and undisclosed conflicts of interest both of which could have been taken care of by the components championed by Ibn Taymiah.

Another aspect of Maqasid that would have helped check the practices that caused the crisis is tahdhib al-fard (educating the individual). It seeks to make every individual a trustworthy agent and carrier of the values of Shari’ah. It trains the individual to acquire the virtues of God-consciousness, thus becoming an agent of benefit to others.

Through the doctrine of maslah (public good) Shari’ah acknowledges that the individual is by nature self seeking and reaffirms the need to maintain order and justice in society, while balancing the individual’s rights with those of society. Maqasid, with the overall objective of public good, provides the motivation to ensure that wealth is generated from legitimate, fair and just dealings and should be for the ultimate attainment of public good.

Aklaq is the practice of virtue and morality in all dealings. The essence of this practice is purity and sincerity (ikhals), which must be reflected in all dealings.

Intention, implying good action, is another aspect of Maqasid that would have helped. The emphasis here is on transparency and full disclosure by all parties to a transaction or contract so that due consideration is given to the likely harmful consequences of their actions on individuals and society as a whole. This includes efforts by any party to exploit the gullible and ignorant or attempts at unjust enrichment by withholding vital information or using legal tricks or deception to conceal the mala fide (bad faith) intention of the transaction.

NEWHORIZON    July – December 2015 IIBI LECTURES

November: Riba-Free Banking: An American Experience

Background

Dr Abdul Rahman Yahia began the lecture by introducing himself. He said that since he went to the USA in 1968 he had worked in various capacities. Having trained as a chemical engineer, he went to work for an oil company, where he worked for 10 years before drifting into finance. While working for the oil company he had patented eight or nine processes for producing shale oil. He then had to prove that these made economic sense, so he returned to education to do an MBA in international finance. He said that what had captured his imagination were the theories of money creation and monetary discipline.

In 1971, when he went to work in Dallas, he was heavily involved in setting up the Muslim community in Dallas. At that time there were no Friday prayers in Dallas. They started to raise money to acquire premises for worship. Having saved $17,000, they needed a further $17,000 and it was recommended that Dr Yahia should go to the bank to borrow this amount, which was when the issue of riba raised its head.

Having moved to Los Angeles in 1977, he set up LARIBA, which is a finance company. He could not start a bank as they had insufficient money to meet the capital requirements to do that. LARIBA started with $200,000 in investment funds from close associates.

LARIBA’s Model

RF or Riba-free banking is a new brand of banking that LARIBA wants to popularise worldwide. Historically this type of banking used to be called interest - free banking, but everyone in the USA now refers to riba-free or RF banking.

So the ‘R’ stands for riba. Anyone can find references to riba in the Qur’an, but also to ribbit, which is the same as riba, in the Torah and the Bible. For those of no faith the ‘R’ can be translated as ‘responsible’.

When the company was registered in California, the founders were asked by the company registrars what LARIBA meant. They were somewhat nervous about being turned down, so Dr Yahia said LA stands for Los Angeles, the ’R’ stands for reliable; the ‘B’ is for banking; the ‘I’ is for investment and the ‘A’ is for associates. The company was registered and the regulators have slowly come to know who and what the company is and what its goals are. The point of this anecdote, said Dr Yahia, was to demonstrate that you can gradually make the concept of riba-free finance acceptable even to those who initially seem opposed. He suggested that such opposition came from ignorance rather than dislike.

The Definition of Riba

The problem for Islamic banking is that it does not have a simple, easy-to-understand definition of riba. Dr Yahia said his definition is the act of renting money at a price called interest rate.

Money cannot be rented, because it is simply a piece of paper. You cannot eat it or drink it. It is just a medium of exchange. If someone rents you an apple, you must return the same apple in the same condition, but an apple changes its nature over time; it is the same with a loaf of bread and with money. The only way of transferring any of these to you is by transferring the title of ownership. Money cannot be rented, only invested, so the slogan at LARIBA is – we do not rent money; we invest with you or in you.

LARIBA’s Story

LARIBA was set up in 1987 and it was the first finance house of its kind in the USA. It is capitalised by the American Muslim community. It started with a capital of $200,000 in a room above a garage and slowly grew into a significant operation $500 million with a full service banking operation with branches in California and Texas. Having been in business for 28 years, LARIBA know where there are pockets of demand and have plans to expand their branch network in the USA.

LARIBA finances homes, cars and commercial businesses, particularly those businesses that the big banks consider to be too small. It also looks after non-profit organisations such as churches, Islamic centres, schools and doctors’ clinics. It takes care of the needs of the community.

The hope is that this success story can be copied to become important in the USA and in the world, because this is a real manifestation of what community banking is all about. LARIBA present RF banking as a discipline; it is not overtly religious and everybody has the freedom to do what they want. LARIBA presents people with a discipline that has proven to be successful, fair to the public and effective in preventing people from participating in economic price bubbles.

Its staff members are trained as investors, not as people selling loans. They are trained to think as though the money is their own money and to make sure as far as possible that there will be a return. In conventional banks a loan officer might have the title Senior Vice President or Senior Partner. They have earned these titles through the amount of income they have generated for the firm. The objective is to sell as much as they can and because in most cases they operate on a commission basis, then that commission may interfere with some of the ethics. LARIBA do not believe in that model.

LARIBA describes itself as a movement dedicated to achieving a riba-free lifestyle. It serves all people of all faiths or none, all colours and all backgrounds. It benefits from and complies with existing US banking laws and regulations without violating Judeo/Christian/Islamic law, which is traditionally called the Shari’ah.

Usury

Usury is a very interesting word. Dr Yahia said that he learned from studying the Roman Catholic faith that usury is an expression of what people do when they rent money. Usury comes from paying for the use of money. After the 15th century, the definition was diluted. Two elements were defined. One is called interest and that is to pay for the foregone opportunity of using the money and usury, which is excessive interest, although nobody defines what exactly excessive means.

LARIBA does not compromise; it considers rent, interest and usury as riba. If a transaction, does not involve homes, cars, businesses or any other tangible asset, then you should be careful about it. If it is renting money, it is renting money regardless of what it is called - rent, fees or any other name.

The Added Value of RF Banking

RF banking is religious and spiritual, because the Torah, the Bible and the Qur’an prohibit riba or interest. It is also economic, which is to do with the cost and pricing disciplines and social, because it has an impact on society.

The most important thing about RF banking is the need to establish its credibility as the best and most trusted community service. LARIBA is judged in this not just by a higher authority, but also by the community, who will express their trust by bringing their business to the bank.

NEWHORIZON     Ramadan - Shawwal 1436 - Rabi Al Awwal 1437 IIBI LECTURES




The Art of RF Islamic Banking and Finance

This book starts by researching the prohibition of interest, riba or usury in Judaism, Christianity (Roman Catholic and Evangelical traditions) and Islam. To ensure that the findings were not coloured by a Muslim writer, Jewish and Christian academics were asked to comment. The result is a very illuminating description of the roots of riba or the prohibition of interest. For example, if a Jew participates in usury or renting money, according to Jewish teaching, he or she cannot stand as a witness in a Jewish court. In old Roman Catholic teachings, pre Thomas Aquinas, a person who rents money or is involved is usury would be denied Catholic burial and could be excommunicated.

A Historical Background

During the time of the prophet Moses rich people would lend money to the poor and needy and if those borrowers could not repay the loan, they could work for the lender in lieu of repayment. That was the beginning of slavery at that time.

By the time of Jesus money lenders would make loans to farmers to buy seeds and livestock, but if drought or other natural disasters meant that they could not repay the loan, then the money lenders would confiscate their land. By the time of the Prophet Muhammad (PBUH) international trade had begun to develop. People needed money, not because they were poor, but because they wanted to expand their business. The Prophet (PBUH) wanted to find a way for people to borrow money without incurring interest. The solution he recommended was musharakah, which is a joint venture, an innovative idea at the time.

A very well-placed figure in the court of Saladin, a very distinguished Talmud writer, Moses Maimonides, was very interested in riba-free activities in Islam and he translated them into shetar ‘iska, which was used by Eastern European Jews to expand business.

The Second Challenge

Having devised a way to raise capital, the Prophet (PBUH) was faced with a second challenge. He did business with Europe, India, China and the Persian and Byzantine Empires. All of these places had their own currencies. The issue was how to distribute profit and loss fairly between these diverse parties. He devised the commodity indexation discipline – gold for gold, silver for silver, wheat for wheat, barley for barley, dates for dates and salt for salt. This is one of the best-known sayings of the Prophet Muhammad (PBUH), but, for the first time, we have thrown a new light on it. What the Prophet (PBUH) was really saying was, from now on the yardstick will be two types of things – first, precious metals and second, staple commodities.

What he was saying is that from now on, when you trade gold, you cannot write an IOU saying payment would be made in two or three months. Why – the minute you have an IOU with a future payment indicated, the gold becomes part of future speculative activities; it is no longer a yardstick.

Mark to Market

Mark to market is based on a well know story about the Prophet (PBUH) being given three large, juicy dates. He asked the man who gave him the dates how he could possibly have afforded them. The man said he had saved 15 lower quality dates and swapped them at the market for the three premium dates. The Prophet (PBUH) said this was exactly what riba was all about. Dates are considered one of the measuring scales.

The man asked the Prophet (PBUH) what he should have done. The Prophet (PBUH) said the man should have exchanged the large number of dates for another yardstick commodity such as wheat and used the proceeds to buy the large dates. In this way the market would not have been upset and would be fair, transparent and not upset by speculative activities.





Dr Yahia said LARIBA used the mark to market concept in a very interesting way. They asked themselves how they would mark a home to the market. It has to be based on the utility of the home, which is the rent; how much would it rent for if it was bought for investment purposes.

Unlike money, which is fungible, things like homes do not change their nature upon use. You can own a property, have title to it and rent it out. This is very important, because in this way you can develop a model that fits in with Western society, but does not violate Shari’ah.

LARIBA developed an index based on a variety of products. It took the currency, in this case the dollar, out of the equation and took it back to commodity indexation as outlined above. Rather than price homes in dollars, for example, they are priced in substitutable commodities such as rice and wheat. In effect LARIBA were looking at the markets in a way that makes economic sense and enabled it to advise clients about price bubbles that may have an adverse effect on their investments.

This discipline also allows the bank to determine the real value of currencies around the world based on the index/matrix it had developed. It can also be used as a planning tool. It will tell countries what to produce to improve the value of their currency.

Social Responsibility

This is what LARIBA call the RF lifestyle. Many banks earn their money on the interest they charge on credit card debts and not by investing in the community, for example investing in schemes that will create jobs. People are encouraged to buy things they cannot really afford by clever advertising, appealing to image consciousness. LARIBA encourages people to get out of this vicious cycle.

LARIBA takes a different approach to loans, which is based on two rights - the right to own the property and the right to use the property. In a home purchase, a conventional financial organisation charges interest on the loan and takes the property as collateral. LARIBA does not charge interest. The bank asks the purchaser the address of the property and then asks the prospective purchaser to go to three different realtors and ask what the property could be rented for, if it were being bought as an investment. The bank will do the same, so that it ends up with six rental figures. The bank then takes an average of the six figures.

In the LARIBA loan model, the investment or purchase price is entered for a period of say 20 or 30 years. The monthly repayment is based on the rental figure, the average of the six quotes and the final entry is a percentage, the rate of return on investment. If the rate of return is too low, LARIBA tells the purchaser that the property is overpriced and will not invest with them.

In Conclusion

LARIBA offers a trust account, which is equivalent to a current account, but the money cannot be invested. It does not offer lines of credit, because this is renting money. The bank’s non-performing loans are less than 5% and it services a portfolio of $500,000. This is based on the Judeo/Christian/Islamic value system. It is prudent and designed to serve all people of all faiths or none. LARIBA’s slogan is – we do not rent money; we invest in you and we answer to a higher authority.

NEWHORIZON    July – December 2015IIBI NEWS

IIBI Awards in Islamic Banking and Insurance

In order to offer wider choice to potential applicants, IIBI launched its Diploma in Islamic Banking (DIB) by distance learning in January, 2010. The course builds candidates’ knowledge of Islamic banking concepts as well as their practical applications. It supports candidates seeking a career in Islamic banking and also their career progression in the Islamic finance industry.

Candidates having a graduate degree may take up the IIBI Post Graduate Diploma in Islamic Banking and Insurance (PGD), however those who wish to build a good foundation of Islamic banking concepts and operations, may opt to take the DIB course and later on progress to the PGD. DIB holders wishing to take up the PGD course will get an exemption from some of the Post Graduate Diploma modules.

Post Graduate Diploma in Islamic Banking and Insurance (PGD) Awards

To date students from more than 80 countries have enrolled in the PGD course. In the period to February 2016, the following students successfully completed their studies:

► Mohammed Nazhan Mohammed Naurooz, Inhouse Shari’ah Coordinator, Lanka Orix Finance Plc, Sri Lanka

► Imran Khan, Corporate Senior Internal Auditor, Abu Dhabi Health Services Co, UAE

► Mehedi Ibne Rahim, Senior Partner, Kawa, Guimaraes & Associates, Solicitors, UK

► Mohamed Sabrey, Sri Lanka

► Nafi Hamed Ahmed, UK

► Nasiru Rabiu, Resident Auditor, Keystone Bank Ltd, Nigeria

► Nasser Abdulwahab Salim, Shari’ah Compliance Office, Gulf African Bank, Kenya

► Tego Wolasa, Retail & Product Development Manager, Kenya Commercial Bank Ltd, Kenya

► Mark Wafula Wanjala, Legal Counsel, Bloom Zeit Ltd, Kenya

► Wahab Saleem, Canada

► Yasin M A M Bijepuri, Associate - Investment Banking, Sharjah Islamic Bank, UAE

► Wajhe Fatima, UK

Isa Nsereko

Hubert Werner Erich Knapp, Executive Advisor, FTP Corporation, Thailand
Excellent curriculum, well structured, good high level summary with drill-down to a sufficient level of detail for a more in-depth understanding. The course gave me an excellent overview of all aspects of Islamic banking and insurance with a sufficient level of detail for practical use. There were also a lot of recommendations for reference material for the student to drill down in even more detail. Excellent! Last, but not least, I benefited very much from the excellent feedback of my tutor.

As my background is in banking, I very much enjoyed the chapters about Islamic insurance (takaful), as this was a new subject for me. The course has helped me to solidify my knowledge of banking in an important growth area of finance, where moral aspects and considerations about doing the right thing for mankind are still the top priorities. Islamic Banking is very different to secular banking were unrestricted growth, greed, fraud and manipulation, has overtaken dignity and doing the right thing. The course has helped me to get a much deeper understanding of the objectives and goals of Islamic banking and finance, and also gave me a much better understanding of Maqasid Shari’ah. The course has really opened my mind to the depth and philosophy of Islamic banking and finance, which I otherwise would never have had. I also was fortunate to have an attentive tutor who gave me valuable feedback and advice.




 Ahmer AmmarUsmani

Mohammad Zarif Aminyar, Managing Director, Exchangerzone Microfinance Institution, Afghanistan
From this course I have gained an insight into the world of interest-free /Islamic banking which is the field I want to work in going forward. The way the assignments have been designed is certainly the stand-out aspect of this course. The assignments are so exhaustive that they leave no scope whatsoever for the student to leave out any concept from his scope of thinking. This course has really changed the way I conduct my monetary transactions, be it banking, insurance or stock market transactions. I make sure that my actions adhere to Shari’ah at all times.




 Ahmer AmmarUsmani

Ahmed Al Raji, Trainee Lawyer, M. Khaled Ahmed and Associates, Bangladesh
IIBI is an exceptional platform to spread knowledge of Islamic finance to practising finance professionals. The knowledge obtained through the courses will enable working professionals to transition from conventional to Islamic finance. Such efforts add more value to business transactions. The sincerity of IIBI’s intention to share this knowledge is commendable.

NEWHORIZON     Ramadan - Shawwal 1436 - Rabi Al Awwal 1437 IIBI NEWS

Diary of Events

April 2016

11-12: 11th Annual World Takaful Conference, Dubai

Topics to be discussed at this conference include the role of a robust regulatory framework for the takaful industry; whether takaful needs more Shari’ah harmonisation to overcome fundamental problems with the takaful operating model; the diversification of investment portfolios to improve financial stability and assessing new opportunities for growth. The conference takes place at Dusit Thani Dubai.
Email: partnerships@meglobaladvisors.com www.wtc16.com

13-14: 3rd Annual Infrastructure Sukuk and Islamic Financing, Kuala Lumpur

Designed to bring together issuers, borrowers, investors and bankers, this conference will look at funding infrastructure projects, current market appetite and demand for sukuk, promoting sustainable and responsible investment in sukuk issuance and developing innovative structures to achieve sukuk issuance at competitive prices.
Contact: Karen Leong
+603 2775 0000 ext. 510
Email: Email: karenl@trueventus.com www.trueventus.com

19-20: Bonds, Loans and Sukuk, Dubai

This conference looks at the broader topic of conventional bonds as well as sukuk. Some of the topics to be covered, such as how GCC countries are gearing up for the adoption of Basel III are relevant to both sukuk and conventional bonds and some, such as the impact of falling oil prices on sukuk, are targeted specifically at sukuk. The keynote speaker will be ex IMF Chief Economist, Simon Johnson. The venue is the Grand Hyatt, Dubai.
Contact: Marcia Ardila
Tel: +44 (0)207 405 0920
Email:registrations@GFCconferences.com www.globalfinancialconferences.com

26-27: The Sukuk Summit, Kuala Lumpur

This conference will address topics such as financing strategies in a period of falling oil prices and rising interest rates, the prospects for green and SRI sukuk and extending the role

of sukuk in the development of waqf.
Contact: Roohi Taragi
Tel: +600 227 25310
Email:roohi.taragi@fleming.events www.fleming.events

May 2016

25-26: Sukuk Summit 2016, London

Sessions at this conference include the dynamics of regulating, supervising and assessing the industry; the attraction of sukuk as an investment asset class. The conference takes place at the Jumeirah Carlton Tower.
Tel: +44 (0)208 200 9002
Email:info@icg-events.com sukuksummit.co.uk

July 2016

10: Islamic Banking and Finance Conference, London

This conference, organised by the Occidental Institute for Islamic Banking and Finance, will explore the relationship between Islamic legal thinking and modern financial rules looking at both the historic development and future aspirations of the Islamic finance industry. It aims to bring together both scholars and finance professionals.
Email:register@oiibf.org.uk
www.oiibf.org.uk

September 2016

1-3: International Joint Conference on Islamic Economics and Finance, Istanbul

This conference jointly organised by Sakarya University, Durham University and Istanbul Sabahattin University is currently seeking papers on a broad range of topics in the fields of Islamic economics and finance. The deadline for papers is 2 May 2016. To submit a paper authors will need to register on the website of the International Congress on Islamic Economics and Finance, following the link below.
www.icisef.org/sayfa/paper-submission

NEWHORIZON    Ramadan - Shawwal 1436 - Rabi Al Awwal 1437 BOOK REVIEW

Shari’ah Compliant Private Equity and Islamic Venture Capital



Fara Madehah Ahmad Farid. Edinburgh University Press (2012)
ISBN: 9780748640485
Reviewed by: Richard de Belder, Partner with Dentons and Global Head of Islamic Finance

As the author notes in the preface, this book is a product of his curiosity about the controversy surrounding derivatives in Islamic finance and the ‘divergent, and seemingly obstinate, views of some of the notable members of the Islamic finance community’ when it comes to considering the use of derivatives.

This book provides an introduction to private equity and venture capital in the Islamic finance space and will be useful background reading for people who are not familiar with this area. It was published in 2012 but a lot of the material and examples that are referenced relate back to the period 2000 – 2008. In that sense the book does not review current material and does not take into account the serious impact of the recent financial crisis on these Islamic finance tools. Nonetheless, it does offer an insight into how the Islamic banking and finance industry developed in this timeframe in relation to private equity and venture capital.

The first chapter reviews the growth and prospects of Islamic banking and finance in the MENA and ASEAN regions. It contains a series of tables which helpfully describe various asset ownership contracts, usufruct contracts, partnership contracts, trust contracts and security contracts.

The second chapter discusses the private equity and venture capital industry in the MENA and ASEAN regions. There is an interesting discussion about how these activities developed during the time period 2000 to 2008. While this provides an interesting historical perspective it also allows the reader to use their personal experiences to compare what was hoped for during this time period to what has happened since then and whether any of the assumptions that were used about future growth were in fact overly optimistic or incorrect.

The third chapter discusses the scope of Shari’ah-compliant private equity and Islamic venture capital. It contains a useful discussion of aspects of riba, haram activities and the different types of partnerships and company structures under Islamic law. There is also a discussion of the various types of musharakah that can be used for private equity and venture capital funding as well as some of the concepts and features of musharakah, which will be a useful primer for those new to this area.

The next chapter focuses on the potential and limitations of Shari’ah-compliant private equity and Islamic venture capital. There is a further discussion of limited partnerships, corporate venture capital firms and angel investors. The author then has an interesting discussion about various key issues such as management, financial information and valuation, market potential and the requirement for various screening tools to ensure Shari’ah compliancy. There is a short section on the limitations of Shari’ah-compliant funding and, while this is interesting, this area would have benefited from a deeper exploration. There are some case studies, which are a useful counterbalance to the theoretical discussion.

The fifth chapter considers issues relating to profit sharing, valuation and risk mitigation. The section dealing with the valuation methods contains a brief overview of some of the valuation methodologies that are employed and this is then followed by a discussion of risks and how they are to be allocated and mitigated in the context of Shari’ah-compliant venture capital.

With these types of products the exit strategy for investors is of critical importance. There is an interesting discussion of different shares and securities and how some of them are not suited for Shari’ah-compliant investments or venture capital. The author also briefly mentions the different types of exit strategies such as IPOs, MBOs, MBIs, trade sales and mergers and acquisitions.

The final chapter considers the issues of trust, monitoring and methods of due diligence. The issue of trust has, in many ways, taken on more significance since the financial crisis. The chapter very briefly talks about some of the methods that would build up trust in the context of Shari’ah-compliant structures. While the examples given are of interest, this section would have perhaps benefited from a deeper analysis including examples of where musharakah transactions have gone wrong due to the breakdown in trust.

In conclusion this book provides some interesting insights into Shari’ah-compliant private equity and Islamic venture capital and a historical insight into these structures in the period 2000 to 2008.

Richard de Belder

Richard de Belder is a partner in the London office of the international law firm Dentons and heads up the global coordination of the firm’s Islamic finance practice. He is ‘very well-known and very well respected’ by Islamic finance scholars and has a ‘deep understanding’ of the practice area. Richard has been involved in a wide range of Shari’ah-compliant transactions since the mid-1990s including working closely with leading Sari’ah scholars to create ground-breaking structures and internationally recognised solutions that comply with the requirements of the Shari’ah as well as secular laws and regulatory issues.

NEWHORIZON    July – December 2014GLOSSARY

arboun
An Islamic version of option, a deposit for the delivery of a specified quantity of a commodity on a predetermined date.

bai al-ina
This refers to the selling of an asset by the bank to the customer on a deferred payments basis, then buying back the asset at a lower price, and paying the customer in cash terms.

commodity murabaha
A murabaha contract using certain specified commodities, through a metal exchange.

fatwa
A ruling made by a competent Shari’ah scholar on a particular issue, where fiqh (Islamic jurisprudence) is unclear. It is an opinion, and is not legally binding.

gharar
Lit: uncertainty, hazard, chance or risk. Technically, sale of a thing which is not present at hand; or the sale of a thing whose consequence or outcome is not known; or a sale involving risk or hazard in which one does not know whether it will come to be or not.

Hadith
A record of the sayings, deeds or tacit approval of the Prophet Muhammad (PBUH) halal Activities which are permissible according to Shari’ah.

haram
Activities which are prohibited according to Shari’ah.

ijara
A leasing contract under which a bank purchases and
leases out a building or equipment or any other facility required by its client for a rental fee. The duration of the lease and rental fees are agreed in advance. Ownership of the equipment remains in the hands of the bank.

ijara sukuk
A sukuk having ijara as an underlying structure.

ijara wa iqtina
The same as ijara except the business owner is committed to buying the building or equipment or facility at the end of the lease period. Fees previously paid constitute part of the purchase price. It is commonly used for home and commercial equipment financing.

istisna
A contract of acquisition of goods by specification or order, where the price is fixed in advance, but the goods are manufactured and delivered at a later date. Normally, the price is paid progressively in accordance with the progress of the job.

maysir
Gambling – a prohibited activity, as it is a zero-sum game just transferring the wealth not creating new wealth.
mudarabah
A form of business contract in which one party brings capital and the other personal effort. The proportionate share in profit is determined by mutual agreement at the start. But the loss, if any, is borne only by the owner of the capital, in which case the entrepreneur gets nothing for his labour.

mudarib
In a mudarabah contract, the person or party who acts as entrepreneur.

murabaha
A contract of sale between the bank and its client for the sale of goods at a price plus an agreed profit margin for the bank. The contract involves the purchase of goods by the bank which then sells them to the client at an agreed mark-up. Repayment is usually in instalments.

musharakah
An agreement under which the Islamic bank provides funds which are mingled with the funds of the business enterprise and others. All providers of capital are entitled to participate in the management but not necessarily required to do so. The profit is distributed among the partners in predetermined ratios, while the loss is borne by each partner in proportion to his contribution

musharakah, diminishing
An agreement which allows equity participation and provides a method through which the bank keeps on reducing its equity in the project and ultimately transfers the ownership of the asset to the participants.

qard hasan
An interest-free loan given for either welfare purposes or for fulfilling short-term funding requirements. The borrower is only obligated to pay back the principal amount of the loan.

rab-al-maal
In a mudarabah contract the person who invests the capital. retakaful Reinsurance based on Islamic principles. It is a mechanism used by direct insurance companies to protect their retained business by achieving geographic spread and obtaining protection, above certain threshold values, from larger, specialist reinsurance companies and pools.

riba
Lit: increase or addition. Technically it denotes any increase or addition to capital obtained by the lender as a condition of the loan. Any risk-free or ‘guaranteed’ rate of return on a loan or investment is riba. Riba, in all forms, is prohibited in Islam. Usually, riba and interest are used interchangeably.

salam
Salam means a contract in which advance payment is made for goods to be delivered later on. Shari’ah Refers to the laws contained in or derived from the Quran and the Sunnah (practice and traditions of the Prophet Muhammad (PBUH)

Shari’ah board
An authority appointed by an Islamic financial institution, which supervises and ensures the Shari’ah compliance of new product development as well as existing operations.

shirkah
A contract between two or more persons who launch a business or financial enterprise to make profit. sukuk
Similar characteristics to that of a conventional bond with the key difference being that they are asset backed; a sukuk represents proportionate beneficial ownership in the underlying asset. The asset will be leased to the client to yield the return on the sukuk.

ta’awuni
A principle of mutual assistance. tabarru A donation covenant in which the participants agree to mutually help each other by contributing financially.

takaful
A form of Islamic insurance based on the Quranic principle of mutual assistance (ta’awuni). It provides mutual protection of assets and property and offers joint risk sharing in the event of a loss by one of its members.

tawaruq
A sale of a commodity to the customer by a bank on deferred payment at cost plus profit. The customer then a third party on a spot basis and gets instant cash.

ummah
The diaspora or ‘Community of the Believers’ (ummat al-mu’minin), the world-wide community of Muslims.

wa’ad
A promise to buy or sell certain goods in a certain quantity at a certain time in future at a certain price. It is not a legally binding agreement.

wakala
A contract of agency in which one person appoints
someone else to perform a certain task on his behalf, usually against a certain fee.

waqf
An appropriation or tying-up of a property in perpetuity so that no propriety rights can be exercised over the usufruct. The waqf property can neither be sold nor inherited nor donated to anyone.

zakat
An obligation on Muslims to pay a prescribed percentage of their wealth to specified categories in their society, when their wealth exceeds a certain limit. Zakat purifies wealth. The objective is to take away a part of the wealth of the well-to-do and to distribute it among the poor and the needy.