an analysis of shariah non-compliant events in Islamic banks : evidence from Malaysia

Abstract EN

Islamic banks (IBs) operate based on various SharÊÑah contracts, translated mostly into deposit and financing products.

The validity of contracts, therefore, plays a central role in determining the SharÊÑahcompliant status of Islamic banking products and services.

Failure to satisfy the contractual mechanical requirements will render the underlying transactions null and void, and any income derived therefrom cannot be recognized as profits.

Over the last decade, a number of cases were brought to court to challenge the validity of the underlying contracts in Islamic banking products.

The judge’s decision in some cases to annul the underlying contract used in a particular product threatened financial losses to the bank.

As a case in point, in Arab Malaysian Finance Bhd v Taman Ihsan Jaya Sdn Bhd & Ors [ 2008] 5 MLJ 631, the court declared that the bayÑ bi thaman Éjil (BBA) contract was invalid on the basis that the BBA facility was a bona fide sale transaction.

Therefore, when the bank recalled the facility at a higher total price, the sale no longer represented a bona fide sale transaction but was merely a financing facility similar to a loan under conventional financing and as such it contravened the provisions of the Islamic Banking Act (IBA) and the Banking and Financial Institutions Act (BAFIA), which require Islamic banking businesses to be in compliance with the religion of Islam (Suit No.

D4-22A-067-2003).

As Islamic banks continue to witness tremendous growth and move towards market maturity and increased product complexity, it is expected that more disputes and lawsuits are likely to occur in the future (Hasan and Asutay, 2011).

Therefore, ensuring the SharÊÑah compliance aspect and strengthening the robustness of SharÊÑah governance are paramount in maintaining the confidence level of Islamic banking stakeholders (Shafii et al., 2013).

Inadequate attention to the whole process of SharÊÑah compliance will inevitably trigger negative repercussions on the Islamic banking industry (Dusuki, Ali and Hussain, 2012).

On January 1st, 2011, Bank Negara Malaysia (BNM) introduced the SharÊÑah Governance Framework (SGF) for the Islamic financial institutions (IFIs) operating under its purview (notably, Islamic banks and conventional banks offering Islamic financial services and takÉful companies).

The SGF aims to strengthen the robustness of the SharÊÑah governance structures, processes and arrangements of the IFIs so as to ensure that the SharÊÑah-compliant aspects are fully observed in their operations and business activities (BNM, 2011).

The SGF requires IFIs to institute clear internal control and remedial rectification measures to address SharÊÑah non-compliant incidents in a holistic manner (BNM, 2011).

The Islamic Financial Services Act (IFSA), which was enacted in 2013, further reinforced the policy orientation of having IFIs ensure that their aims, operations and business activities are all in compliance with the SharÊÑah (IFSA, 2013).

Failure of an IFI to adhere to SharÊÑah-compliance requirements will subject it to criminal and civil penalties in the form of imprisonment of its executives and financial penalties.

Section 28(8) of the IFSA clearly states: “Any person who contravenes subsection (1) or (3) commits an offence and shall, on conviction, be liable to imprisonment for a term not exceeding eight years or to a fine not exceeding twenty-five million ringgit or to both.” 1 To complement IFSA (2013) and to strengthen the SharÊÑah compliance culture among IFIs, BNM recently embarked on the issuance of SharÊÑah standards that feature the most prevailing and applicable contracts and principles in the Islamic banking and takÉful industry.

These include, among others, SharÊÑah standards on murÉbaÍah, muÌÉrabah, mushÉrakah, wadÊÑah, istiÎnÉÑ, waÑd, kafÉlah, hibah, tawarruq and ÑÊnah.

However, ensuring SharÊÑah compliance is not a simple and straightforward matter.

Although BNM has put adequate effort to instill SharÊÑah compliance by IFIs, SharÊÑah non-compliant events (SNEs) in IBs are still likely to occur.

Nasrun (2013) argued that human error, poor governance, business processes and supporting systems, as well as lack of awareness and understanding of SharÊÑah matters are among the factors which may trigger SNEs in IBs.

Thus, in-depth research has to been carried out to specifically and comprehensively tackle the issue of SNEs in IBs, and that is the purpose of this research.

A cursory review of the literature finds that there is lack of research in this aspect due to the complexity of the subject and due to the fact that it is a relatively new area that calls for more academic research.