THE CONCEPT OF DARURAH

Yesterday, a fellow classmate has raised a question to my learned Professor on the concept of darurah in Islamic banking environment particularly in Malaysia. It is sad that after nearly 3 decades of the establishment of the first local Islamic bank in Malaysia, and based on the court cases (High Court and Court of Appeal), there seems to be still confusion in the concepts practiced by these Islamic banks.

What is darurah?

Darurah or extreme necessity, is things that which the Muslim cannot manage without. In other words, darurah is a legal instrument applicable in cases of extreme necessity or vital interest by which a person is allowed to act in a manner that would normally be forbidden. Allah swt has lifted difficulty as stated in Surah Al-Haj and Al-Ma'idah:

"And He has not laid upon you in religion any hardship" (22:78).

"Allah does not want to place you in difficulty, but He wants to purify you, and to complete His Favour to you that you may be thankful" (5:6).

However, there is another rule which governs and complements the rule of extreme necessity and need. This rule reads what has been made permissible due to extreme necessity must be dealt with great care and taken in a temporary and restricted measure.

Once we find ourselves in a darurah situation, it is obligatory to do everything in our power to move away from the situation as it is not allowed to dwell in that situation forever.

Islamic banks in Malaysia

During the earlier development stages of Islamic banking industry in Malaysia, the industry players were trying to preserve the capitalist environment and tools at the expense of the conditions imposed by Shariah – and they are doing this wrongly in the name of ijtihad and darurah.

Whether we like it or not, we can see that Islamic banks practice some kind of riba, in the same way that other conventional banks do, except that the differences are purely cosmetic. These Islamic banks tend to mislead common people by the use of Arabic names and the misrepresentation of commercial contracts as well as the introduction of certain forbidden practices such as “two transactions in one”, which are not known to be Haram by most people. Islamic banks dwell on the exceptionality of darurah in order to justify their own interpretation of Shariah, which validates banking practices, thus, they do not intend to change or eliminate the situation of darurah, because such a change would imply the end of their justifications