ISLAMIC FINANCE IN THE LIMELIGHT

6-02-2009: Islamic finance in the limelight
(Extracted from The Edge – author : Racheal Lee Mei Nyee)

Ever since the US housing bubble burst in 2007 leading to the collapse of the global financial system last year, investors have been scurrying to seek alternative investment platforms and Islamic finance is deemed to be one of the viable and attractive options.

Aware of the huge potential in Islamic finance, Malaysia had been preparing the groundwork for a couple of decades and is now poised to become a global Islamic finance hub. Regional fund managers and investors are keeping a keen eye to take advantage of the vast opportunities available here.

It has been reported that Islamic banking assets in the Asia-Pacific account for about US$450 billion (RM1.62 trillion), which is 60% of the global Islamic banking market. The numbers are expected to grow.

According to reports, the Malaysian Islamic finance sector has grown at a compound annual growth rate (CAGR) of 28% in the last 15 years.

As at end-November 2008, the country’s Islamic banking assets rose 18.7% year-on-year (2007: 19.2%) to RM186.6 billion (2007: RM157.2 billion) and accounted for 14.3% (2007: 12%) of total assets in the banking sector.

Bank Negara Malaysia (BNM) wants the Islamic banking industry to constitute 20% of the overall banking and insurance market by 2010.

The Edge Financial Daily spoke to the three latest Islamic asset management licensees, which were granted the approval by the Securities Commission (SC) last month to start their operations in Malaysia.

The three foreign fund management companies are Aberdeen Islamic Asset Management Sdn Bhd, Nomura Islamic Asset Management Sdn Bhd and BNP Paribas Islamic Asset Management Malaysia Sdn Bhd.

The three expressed similar views on the efforts being done by the SC, BNM, Bursa Malaysia as well as the Malaysia International Islamic Financial Centre (MIFC) in promoting the country as a major hub for international Islamic finance.

These three companies, which already have presence in the country’s conventional asset management industry, realise the vast potential in the Islamic finance industry and are keen to play their role in taking the industry to greater heights and give other players a run for their money.
Nevertheless, they address the concern of low liquidity and limited instrument choices in Islamic funds in the market and that is limiting investment opportunities.

They believe there is a lot of unfulfilled demand in Islamic finance and the three companies plan to issue more innovative and attractive products, which under their conventional licence they had been unable to do.

With the incentives given, the foreign players are geared up for stiff competition among themselves as well as with the local boys, and the global arena is their stage. It will be up to each individual house not only to seek investment opportunities for local investors, but also to attract global investments into Malaysia.

It is hoped that with the stiff competition, the players will come up with innovative but transparent solutions for investors in Malaysia.

BNP Paribas Islamic Asset Management Malaysia wants to work with takaful companies here to expand their products so investors have a wider range to choose from. It is also working on an exchange-traded fund (ETF) to be listed in Malaysia.

Nomura Islamic Asset Management is set to launch its first product for institutional investors by the second half of the year for the Malaysian market before venturing into the Gulf and other Asian nations.

Aberdeen Islamic Asset Management is keen on markets such as Indonesia, the Middle East, Brunei, Hong Kong, China and the United Kingdom.

Governed under Capital Market Services Act 2007, foreign Islamic fund management businesses in Malaysia are required to register with the SC.

Currently, there are a total of eight Islamic asset management companies in Malaysia. Besides the three latest licensees, the others are Kuwait Finance House (Malaysia), DBS Asset Management, CIMB-Principal Asset Management, Global Investment House and Reliance Asset Management.

According to MIFC’s website, a foreign Islamic fund management company under a special scheme is subject to two conditions — up to 100% foreign equity ownership and complying with the licensing requirements under the securities laws and the licensing handbook prior to commencing its fund management activities.

It also states that a foreign Islamic fund management company under the special scheme is allowed to participate in managing funds sourced from within or outside Malaysia as well as establishing and distributing unit trust funds. A Syariah adviser must be appointed, approved and registered by SC for these asset management companies.

Below are some of the incentives for Islamic fund management companies:
Institutional
* 10-year tax exemption on all fees received by fund management companies for managing approved Islamic funds for both local and foreign investors up to 2016.
Personal
* Income tax exemption to be given to income received by non-resident experts in Islamic finance.
Operational
* Allowed to conduct foreign currency and ringgit fund management for both retail and institutional investors
Incentives for investment activities
* Islamic fund management companies are allowed to invest all their Syariah funds abroad.
Start-up fund incentive
* Employees Provident Fund has set aside a specific allocation of start-up fund for foreign Islamic fund managers

My Comment :

It seems that the financial crisis has been a blessing in disguise as more and more people/corporations are moving towards Islamic finance.

However, one tends to forget about the ultimate risk management pertaining to Islamic finance, i.e., to incur the risk of not obeying the word of Allah and the teachings of Prophet Muhammad, and that this applies to every aspect of life including business.

What has been stated in the Quran and Hadith is the best method of risk management, and must be complied. Failure to do so will result in the worst risk, which will then lead to total destruction in the world and the hereafter. If all transactions, specifically financial and economic transactions, had been carried out under righteous methods and in accordance with the word of Allah and the teachings of the prophet, Lehman Brothers would not have collapsed in the first place.

DILEMMA FACING ISLAMIC FINANCING FACILITIES

19 Jan 2009: My Say: Dilemma facing Islamic financing facilities
(Extracted from The Edge – author : Philip Koh Tong Ngee, a senior partner at Mah-Kamariyah & Philip Koh, Advocates & Solicitors)

A recent High Court decision that merits the attention of the Islamic banking industry in Malaysia is that of Arab-Malaysian Finance Bhd v Taman Ihsan Jaya Sdn Bhd & Ors (2008) MLJ 0485. This case concerns the validity of documents involved in a Al-Bai' Bithaman Ajil financing facility (BBA facility) — whether the BBA facility contravenes the Islamic Banking Act 1983 (IBA) and the Banking and Financial Institutions Act 1989 (BAFIA).

When confronted with this issue, Justice Datuk Abd Wahab Patail approached the issue as follows:

First, giving an overview of the development of Islamic financing. The learned judge noted that Islamic financing in Malaysia is governed by the IBA and BAFIA. He also observed that "the fundamental requirement under these Acts in respect of Islamic banking and financing, the aims and operations of the bank do not involve any element not approved by the religion of Islam".

Secondly, in a significant passage exemplifying his judicial approach, he observed that "the civil court is not to be a rubber stamp to issue orders for sale; it must maintain curial supervision that the orders for sale are being sought upon the balance sums that are not pursuant to any element not approved by the religion of Islam".

It is on this premise that the High Court embarked upon an exegesis of whether the BBA facility contained elements which are not approved by Islam. This assertion of curial jurisdiction is a fascinating step for the Civil Court, for though the judge eschewed any findings of economic, social, religious and other justifications or rationale of the elements, he nevertheless proceeded to analyse whether the sale formula under the BBA facility contravened usury (riba).

The High Court also argued that the discernment needed in evaluating whether an instrument is that of the "true nature of contracts and transactions is the substance and not the words and structure". In fact, the judge rejected the use of legal devices or trickery (hilah), which he characterised as legal fiction so as to "fall in not the pit of complacency and inadvertently developing a fiqh al-hiyal (or juridicial evasion)". Bearing this in mind, it is not sufficient that the distinction between a sale and a loan is maintained in form, but it must also be maintained in substance. It is reality and not forms and labels that matters.

As part of the High Court's approach, the judge also refused to abdicate what he considered the judicial function to refer the matter for a ruling to the Syariah Advisory Council set up under the Central Bank of Malaysia Act 1958, as such a referral is not binding on the High Court.
The High Court's decision is that "where the bank purchased directly from its customer and sold back to the customer with deferred payment at a higher price in total, the sale is not a bona fide sale, but a financing transaction, and the profit portion of such BBA facility rendered the facility contrary to the IBA and/or BAFIA, as the case may be".

But after making such a ruling, the High Court made an interesting move to permit a restitution of the principal facility amount and invoke an equitable jurisdiction that the bank may seek to obtain a price close to market price on a sale and account for profit to the defendant's "borrowers".
This extraordinary decision, although dealing with a BBA facility, reverberates into the wider issue of validity of Islamic financing transactions. It will certainly excite Islamic and civil commercial law juristic debate and comments. It introduces an element of uncertainty into the financial markets and must surely invite some response from our regulators and lawmakers, if not from our appellate courts. The same judge had in an earlier decision in Affin Bank Bhd v Zulkifli bin Abdullah (2005) indicated his disquiet over the BBA facility instruments when he had already rejected a view that reference be made to the National Syariah Advisory Council.

It is interesting to compare Justice Abd Wahab Patail's approach with that of his fellow judges at the High Court. For example, Justice Suriyadi (as he was then) in Arab Malaysian Merchant Bank Bhd v Silver Concept Sdn Bhd (2005) took the view that once the contractual formalities had been complied with, a purchase at credit per se with a larger sum being agreed to be paid back founded on a buyback concept which may resemble interest is not void.

In the words of Justice Suriyadi: "I am unable to acquiesce to such a suggestion as there is no clear text that prohibits such a transaction entrenched with all those ingredients." The judge further held that it is his considered opinion that any transacted Islamic banking business must be presumed to be in order at the outset unless rebutted later. Justice Suriyadi approached the matter pragmatically that any court faced with application to enforce an Islamic financing or security instrument ought to do so if the cause papers are in order, unless there is cause to the contrary as may be contested by a chargor (the borrower). However, from the manner in which Justice Suriyadi would determine such a challenge, it would scarcely succeed.

In the UK, where a similar conundrum was placed before the English courts, they have also circumvented any challenge of the legality of Islamic instruments on the grounds of its being un-Islamic by approaching it via construing the same on common law contractual principles. In the case of Islamic Investment Company of the Gulf (Bahamas) Ltd v n (2002), the High Court rejected a challenge that a Murabaha agreement is contrary to orthodox syariah. In its essence, the High Court in UK affirmed that, if properly drafted, it may be enforced in an English court if it is governed by English law.

So too in Shamil Bank of Bahrain v Beximco Pharmaceuticals Ltd & Ors (2003). The Queen's Bench held that the syariah defence posed by defaulting borrower(s) and security provider was without merit and a wholly lawyers' construct which the court rejected. This decision was upheld by the Court of Appeal (2004) where the court held that the intention of the parties was for the Murabaha agreement to be binding and a court ought to lean against a construction that might defeat such a commercial purpose.

My Comment :

Interesting insights given by the learned author. As a layman, I wonder whether the judges and/or the lawyers handling the cases that deal with muamalat (commercial transactions) are well versed in shariah. In Malaysia, if we mention Shariah Court, the first thing that comes to our mind is those that deal with family matters only and all other cases are referred to the Civil Courts.

It is high time that some proactive measures are taken by the Government, and/or Central Bank and/or other related parties e.g., Bar Council or any learned persons/bodies that have direct interests, to start educating these people so that the judgements made do not contravene the core concept of Islamic mode of financing etc.

On the other hand, the industry players must also refrain from manipulating the Islamic modes of financing so as to compete with its conventional counterparts – it comes to no surprise why our Islamic products are not faring well and/or not acknowledged by other Islamic countries especially in the GCC.

It is very sad that the concept of murabaha (that becomes BBA in Malaysia) has been manipulated so much that it mirrors the conventional term loan. God says “Those who consume usury cannot stand except as one stands who is being beaten by Shaytan into insanity. That is because they say, ‘Trade is [just] like interest.’ But God has permitted trade and has forbidden interest.

HIGH COURT RULING ON BAI BITHAMAN AJIL FINANCING IN MALAYSIA

15-09-2008: Industry players mixed on High Court judgment on BBA
(Extracted from The Edge Financial Daily - author Ellina Badri)

Industry players are mixed on the impact of a recent High Court ruling that the application of Al-Bai’ Bithaman Ajil (BBA) as an Islamic house financing facility is contrary to the Islamic Banking Act 1983.

Last month, High Court Judge Datuk Abdul Wahab Patail, in a collective judgment for 11 cases involving Bank Islam Malaysia Bhd and Arab-Malaysian Finance Bhd as plaintiffs, had ruled the sale element in the BBA was “not a bona fide sale”.

An industry player told The Edge Financial Daily that the judgment would have no impact on the Islamic banking industry, as it did not affect the banks’ ability to claim money owed by customers.

“My guys are doing a detailed analysis of the judgment, but as far as we’re concerned, it will have no impact whatsoever on the industry, as banks can still claim the money owed by their customers,” the industry player said, disagreeing with the court judgment.

He said the Islamic Banking Act 1983 highlighted that transactions should be carried out according to Islamic principles, and hence the application of BBA by banks, which was not contradictory to Islamic principles, was not contrary to the Act.

“We will not have to restructure our BBA product,” he added.

Monash University Malaysia school of business, director of banking and finance, Professor Bala Shanmugam, however, expected banks to restructure their BBA products following the High Court ruling.

He added that the many interpretations of the application of syariah principles required banks to be innovative while faced with the challenge of competing with conventional banking.

Meanwhile, an industry observer said while Abdul Wahab had made a good point, the solution prescribed was questionable.

In his judgment, Abdul Wahab had said: “This court holds that where the bank purchased directly from its customer and sold back to the customer with deferred payment at a higher price in total, the sale is not a bona fide sale, but a financing transaction, and the profit portion of such Al-Bai’ Bithaman Ajil facility rendered the facility contrary to the Islamic Banking Act 1983 or the Banking And Financial Institutions Act 1989, as the case may be.”

He also said under Section 66 of the Contracts Act 1950, the plaintiffs were entitled to return the original facility amount they had extended.

“Notwithstanding that the properties may, where no title had been issued, have been assigned absolutely to the plaintiffs, by virtue of the fact the assignment was as security, it is equitable that the plaintiffs must seek to obtain a price as close to, if not more than, the market price as possible, and account for the proceeds to the respective defendants,” Abdul Wahab said.

My Comment :
All the industry players went berserk after the judgement, however what bothers me is that why Bank Negara Malaysia (the Central Bank) remains mum about the issue. After all, BNM has their own Shariah Supervisory Council that definitely have their own opinion on this matter, especially as this issue pertains to Islam, our national religion.


Translation – Bahasa Melayu

Industri perbankan umumnya memberi reaksi yang berbeza berkenaan penghakiman yang diberikan oleh Mahkamah Tinggi di mana didapati bahawa penggunaan Bai Bithaman Ajil (BBA) sebagai suatu produk pembiayaan pembelian rumah adalah bertentangan dengan Akta Perbankan Islam 1983.

Bulan lalu, Hakim Mahkamah Tinggi Datuk Abdul Wahab Patail, dalam suatu penghakiman kolektif (11 kes) membabitkan Bank Islam Malaysia Bhd dan Arab-Malaysian Finance Bhd sebagai plaintif, telah mendapati bahawa elemen jualan dalam BBA bukanlah dilakukan secara “bona fide”.

Seorang ahli perbankan memberitahu bahawa penghakiman ini tidak akan member sebarang impak kepada industry perbankan Islam, kerana ia tidak mempengaruhi kemampuan bank untuk menuntut hutang dari para pelangan. Beliau juga mengatakan bahawa Akta Perbankan Islam 1983 menyebut bahawa transaksi yang dijalankan haruslah berlandaskan prinsip-prinsip Islam, oleh itu perlaksanaan konsep BBA oleh bank-bank adalah tidak menyalahi prinsip-prinsip berkenaan, yang tidak bertentangan dengan Akta tersebut.

Komen saya:
Para pengamal perbankan Islam khasnya memang terkejut selepas penghakiman dibuat tetapi apa yang memusykilkan saya adalah kenapa Bank Negara Malaysia bersikap berdiam diri – BNM mempunyai Lenbaga Syariah yang semestinya mempunyai pendapat tentang isu ini terutamanya ia melibatkan perihal agama Islam, iaitu agama rasmi negara ini.