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Open Access
Article
Publication date: 21 February 2020

Aishath Muneeza and Zakariya Mustapha

The purpose of this paper is to explore the application of Kafalah in the practice of Islamic banking in Malaysia generally and ascertain applicable rules governing the…

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Abstract

Purpose

The purpose of this paper is to explore the application of Kafalah in the practice of Islamic banking in Malaysia generally and ascertain applicable rules governing the application under relevant legislations and Shariah. The study also aims to examine the legislations in the light of Shariah provisions governing Kafalah and propose amendments.

Design/methodology/approach

This is a qualitative research where primary data sources mainly legislations and secondary sources comprising of articles and books on the subject of Kafalah were examined. It is an exploratory legal research that primarily focuses on library studies and adopts doctrinal approach for content analysis of data from the identified sources.

Findings

Kafalah is widely used in Islamic banking in Malaysia with primary or secondary application in structuring such products/services as personal guarantee, bank guarantee, Islamic credit card among others. The substantive law applicable to Kafalah in Islamic banking in Malaysia is the Contracts Act 1950 as decided cases indicate. However, provisions of the Act are at variance with rules of Shariah applicable to Kafalah on absolution of guaranteed debtor, multiple guarantors’ liability towards guaranteed sum as well as recourse and recovery from principal debtor.

Research limitations/implications

This research explored the practice of Kafalah in Islamic banking under Malaysian legal framework based on the available literature. The research does not embody an empirical evaluation.

Originality/value

This research suggests, with respect to the identified issues, an amendment to the Act for clarification as follows: that recourse and recovery from principal debtor is only where creditor has requested guarantor to settle outstanding debt, that presence of surety does not absolve principal debtor from his original liability and that multiple guarantors stand as having equal responsibility towards guaranteed amount. The research findings will assist policy and law makers to harmonize the relevant laws with the Shariah to facilitate sustainable development of Islamic banking.

Details

PSU Research Review, vol. 4 no. 3
Type: Research Article
ISSN: 2399-1747

Keywords

Article
Publication date: 12 March 2018

Aishath Muneeza

Often, the application of specific relief to Islamic banking is unspoken and unwritten. However, few studies suggest that legislation on specific relief needs amendment to cater…

Abstract

Purpose

Often, the application of specific relief to Islamic banking is unspoken and unwritten. However, few studies suggest that legislation on specific relief needs amendment to cater for the effective application of Islamic banking and finance in the country and proposing the idea to introduce an Islamic Specific Relief Act. This paper aims to understand the application of specific relief to Islamic banking in Malaysia. This paper will look at the application of specific relief in Malaysia and discuss the extent of its application to Islamic banking cases reported in Malaysia from 1983 to 2015. The study will shed light on the general types of specific relief from Malaysian and Islamic law perspectives to conclude whether the provisions of Malaysian specific relief law invoked in courts in Islamic banking cases are in line with the general principles of Sharīcah. To further support this, evidence from various commercial civil codes of Muslim countries have been discussed to analyse these provisions from a more practical perspective.

Design/methodology/approach

This is a legal exploratory study primarily focussed on library research.

Findings

When it comes to Islamic banking, federal legislations dealing with commercial matters are applicable. For example, in Islamic banking products, if the land is the subject matter, then National Land Code 1965 shall be applied, and when dealing with Islamic banking agreements, the provisions of Contracts Act 1950 shall be followed. This has been highlighted as a problem faced by Islamic financial services in the case of Tan Sri Abdul Khalid Ibrahim v. Bank Islam Malaysia Berhad and other cases where the judge referred Engku Rabiah and quoted that in Islamic banking transactions, “the transactions entered by the parties may be Sharīcah-compliant in the first place, but upon enforcement of the contracts, the court may make orders and decisions that may side line the Islamic legal principles”. This happens when the substantive laws applicable to Islamic banking are incompatible with Islamic law. Fortunately, the analysis of the relevant sections of Specific Relief Act 1950 in this research proves that the provisions reviewed are in line with Sharīcah. However, to further enhance the operation of specific relief, the granting of specific relief could be made a general rule rather than an exceptional rule available with stringent rules. The research revealed that Specific Relief Act (1950) is expressly referred and discussed only in three cases reported from 1983 to 2015. There are only two specific sections of Specific Relief Act (1950) that have been deliberated in the reported case law on Islamic banking: provisions related to granting of a mandatory injunction and specific performance of contracts.

Originality/value

It is anticipated that this paper will assist to comprehend the importance of converging law and Sharīcah in legislations to attain Sharīcah compliance and will help to realise that not all conventional legislations are Sharīcah non-compliant.

Details

International Journal of Law and Management, vol. 60 no. 2
Type: Research Article
ISSN: 1754-243X

Keywords

Open Access
Article
Publication date: 4 January 2022

Md. Kausar Alam, Abu Umar Faruq Ahmad, Aishath Muneeza, Mosab I. Tabash and Md Adnan Rahman

Sharīʿah Secretariat plays a significant role in assisting Sharīʿah Supervisory Boards (SSBs) in their role in achieving Sharīʿah compliance in Islamic banks (IBs). The key…

Abstract

Purpose

Sharīʿah Secretariat plays a significant role in assisting Sharīʿah Supervisory Boards (SSBs) in their role in achieving Sharīʿah compliance in Islamic banks (IBs). The key objective of the study is to develop a organizational framework of the Sharīʿah Secretariat for the IBs in Bangladesh.

Design/methodology/approach

The study applied qualitative case study research. The data have been collected from 17 respondents through semi-structured interviews from IBs and professional experts in Bangladesh.

Findings

This study proposes a full-time Sharīʿah Secretariat and several departments for further enhancement of the Sharīʿah functions in IBs in Bangladesh. The framework proposed in this study covers the formation, functions, composition, qualification, reporting line, independence, remuneration and terms of appointment of the Sharīʿah Secretariat to set a uniform benchmark for all IBs in Bangladesh. It is anticipated that the outcomes of this research will assist to further strengthen the Sharīʿah governance of IBs in Bangladesh.

Research limitations/implications

This research contributed to the national and global regulatory authorities and IBs by proposing a Sharīʿah Secretariat framework for the smooth functioning of the IBs in Bangladesh. The framework proposed in this study covers the formation, functions, composition, qualification, reporting line, independence, remuneration and terms of appointment of Sharīʿah Secretariat.

Originality/value

This study proposed a framework which is considered the first organizational framework so far for the Sharīʿah Secretariat of IBs in Bangladesh. IBs can apply this proposed framework to form their Sharīʿah Secretariat structure.

Details

ISRA International Journal of Islamic Finance, vol. 14 no. 1
Type: Research Article
ISSN: 0128-1976

Keywords

Article
Publication date: 31 May 2024

Rizwan Malik, Humayon Dar and Aishath Muneeza

There is no uniform methodology adopted worldwide for Shariah equity screening. The purpose of this research paper is to suggest reforms required to improve Shariah screening…

Abstract

Purpose

There is no uniform methodology adopted worldwide for Shariah equity screening. The purpose of this research paper is to suggest reforms required to improve Shariah screening methodologies used for equities using Dow Jones Islamic Market Index, which is the world’s first such methodology adopted.

Design/methodology/approach

This research uses a qualitative research methodology that goes beyond analysing secondary data on the subject matter. It includes conducting semi-structured interviews with selected subject matter experts to gain insights into the practical issues associated with existing Shariah screening methodologies. The aim is to identify areas for potential reforms that can be implemented in the future. By combining secondary data analysis with first-hand perspectives from experts, this research provides a comprehensive understanding of the challenges and opportunities in Shariah screening, contributing to the development of practical and effective reforms.

Findings

The study recommends the inclusion of additional filters in Shariah screening methodologies to promote stocks that are not only Shariah-compliant but also socially responsible. It suggests that while a certain level of Shariah non-compliance threshold may be tolerated during the initial screening stage, over time, this accepted threshold should gradually decrease. The ultimate goal is to achieve 0% thresholds for Shariah-compliant equities. By advocating for stricter criteria and a progressive reduction in non-compliance tolerance, the study highlights the importance of continuously improving and refining Shariah screening practices to ensure higher levels of compliance and alignment with Shariah principles.

Originality/value

It is anticipated that the findings of this research provides original insights and contributions to existing knowledge. It offers novel perspectives, innovative approaches and solutions to address specific areas in need of reform. By focusing on enhancing the effectiveness and standardisation of Shariah-compliant investment practices, the research brings fresh perspectives and adds value to the field. Its unique contribution lies in identifying and addressing emerging challenges and proposing improvements in Shariah screening methodologies.

Details

International Journal of Law and Management, vol. ahead-of-print no. ahead-of-print
Type: Research Article
ISSN: 1754-243X

Keywords

Article
Publication date: 9 July 2024

Shinaj Valangattil Shamsudheen, Shamsher Mohamad, Aishath Muneeza and Ziyaad Mahomed

This paper aims to portray the publication pattern, key themes, study trends and future directions for the studies on ethics in Islamic finance. A total of 194 published documents…

Abstract

Purpose

This paper aims to portray the publication pattern, key themes, study trends and future directions for the studies on ethics in Islamic finance. A total of 194 published documents that includes journal articles, books and book chapters and conference proceedings were screened for the period 1988 to August 2022 and categorized based on designated sectors of the Islamic finance industry. This paper also highlights the change in research trends in all three sectors of Islamic finance and suggests possible areas for future research.

Design/methodology/approach

A comprehensive systematic literature review was conducted using the “advanced search” function of “google scholar” by using the option “find articles” with the keywords “Ethic (s/al)”, “Islamic banks”, “Islamic banking”, “Islamic finance”, “Islamic capital markets” Takaful, Islamic insurance without restricting the time frame, author list and the platform. Furthermore, the search for relevant articles was conducted on other mainstream index databases such as “Web of Science” and “Scopus”.

Findings

Among the highlights of the findings were an increase in publications on ethical issues after the global financial crisis and an increase in publications in high-impact mainstream business and finance journals. A higher number of studies were documented in the area of Islamic banking and finance followed by Islamic capital markets and Islamic insurance/Takaful. Although a greater number of empirical studies were published than conceptual studies, dominance was resulted due to the replication of the studies in various jurisdictions based on the same concepts or models rather than applying diversified concepts in various jurisdictions.

Originality/value

This study contributes to the growing literature on ethical and/or Islamic finance as a guide for researchers to identify research gaps and provides a systematic direction for future studies in the area of ethics in Islamic finance.

Details

Journal of Islamic Accounting and Business Research, vol. ahead-of-print no. ahead-of-print
Type: Research Article
ISSN: 1759-0817

Keywords

Article
Publication date: 13 June 2023

Shinaj Valangattil Shamsudheen, Saiful Azhar Rosly and Aishath Muneeza

This study aims to portray the ethical disposition of Islamic financial institutions (IFIs) globally by investigating the ethical gap identified in the empirical literature to…

Abstract

Purpose

This study aims to portray the ethical disposition of Islamic financial institutions (IFIs) globally by investigating the ethical gap identified in the empirical literature to date.

Design/methodology/approach

Two methods of analysis used in this study are content analysis and ratio analysis. While the former was conducted to identify the main themes of empirical studies and to gauge the gap between theory and practice of ethical principles and business practice in the Islamic banking and financial industry, the latter quantified the intensity of the gap identified.

Findings

The findings indicate that global ethical practices were found to be above medial, and the South East Asian region stood out with a relatively better performance along with the subpar performance of the African region. Among the ethical parameters, the praxis of marketing ethics was found to be distinctly aligned with the principles, and the organizational ethical decision-making behaviour was held to be least harmonized with the norms.

Practical implications

The findings of this study help researchers and regulators to better understand the issues and provide practical solutions to address the shortfalls of ethics in Islamic finance in practice.

Originality/value

In spite of the vast literature, comprehension of the overarching ethical standing of IFIs is still equivocal. This study contributes to the growing literature of ethical and/or Islamic finance primarily in two ways. Firstly, it provides a comprehensive depiction of the ethical standings of the IFIs all around the globe, which can be treated as a guiding document for regulators and industry practitioners to better understand the issues and provide practical solutions to address the shortfalls of ethics in Islamic finance in practice. Secondly, it helps researchers identify research gaps and provides a systematic direction for future studies in the area of ethics in Islamic finance.

Details

International Journal of Law and Management, vol. 65 no. 5
Type: Research Article
ISSN: 1754-243X

Keywords

Article
Publication date: 10 May 2023

Sherin Kunhibava, Aishath Muneeza, Zakariya Mustapha, Mohammad Ershadul Karim and Auwal Adam Sa’ad

This study aims to explore several challenges in the use of regulatory technologies (RegTech) in Islamic and conventional financial markets and share recommendations in this…

Abstract

Purpose

This study aims to explore several challenges in the use of regulatory technologies (RegTech) in Islamic and conventional financial markets and share recommendations in this regard.

Design/methodology/approach

A qualitative research methodology was used to identify the existing challenges. Literature was reviewed and analyzed, and seven experts were interviewed or consulted online and their feedback examined. The judgment of the case B2C2 Ltd v Quoine Pte Ltd. was reviewed.

Findings

This study reveals a lack of relevant regulatory frameworks capable of meeting some of the evolving challenges, lack of awareness among market players and lack of expertise in RegTech. The list of additional challenges includes the issue of legacy technology, the weaknesses of human programmers and the need for a multifaceted solution for compliance requirements.

Research limitations/implications

This study notes the novelty of RegTech in the financial world, especially in the Islamic financial market. Thus, there is a dearth of relevant literature. This study assists relevant conventional and Islamic financial market entities and authorities in determining the potential impact of RegTech on their respective businesses and the financial system.

Practical implications

This study proffers recommendations to assist in addressing the challenges facing its users and paving the way for innovative solutions that will facilitate and enhance the use of RegTech in financial markets. Regulators and other stakeholders of the financial industry will learn from the challenges identified and can review the recommendations for adoption. Apart from that, the decision of B2C2 Ltd v Quoine has practical implications for RegTech users, as the court in B2C2 Ltd v Quoine accessed the “knowledge” of the programmers of deterministic software at the time of the coding.

Originality/value

RegTech can offer cost-effective and efficient means to comply with regulations and ensure the accuracy of the information provided to regulators. This study provides a better understanding of the challenges associated with its use. The recommendations include enactment of a blueprint for a digitally enabled regulatory framework, creating awareness of RegTech via stakeholder roundtable discussions, development of human talent, formulating human governance standards and finding innovative ways to manage risks.

Details

Journal of Islamic Accounting and Business Research, vol. 15 no. 5
Type: Research Article
ISSN: 1759-0817

Keywords

Article
Publication date: 11 October 2022

Aishath Muneeza, Saeed Awadh Bin-Nashwan, Magda Ismail Abdel Moshin, Ismail Mohamed and Abdelrahman Al-Saadi

This paper aims to examine the existing practice of accepting zakat payments using cryptocurrencies and crypto assets by discussing its Shariah issues.

Abstract

Purpose

This paper aims to examine the existing practice of accepting zakat payments using cryptocurrencies and crypto assets by discussing its Shariah issues.

Design/methodology/approach

This is qualitative research in nature, as unstructured interviews with experts in the field were conducted to understand the existing practice regarding zakat on cryptocurrencies/crypto assets while literature on the topic was reviewed to derive conclusions.

Findings

It is found that there are divergent views among contemporary Shariah scholars on the Shariah permissibility of cryptocurrency and crypto assets. As such, by evaluating the existing practices of some companies, this study has concluded that there is room to pay zakat using cryptocurrencies and from investments made on crypto assets. As long as they have been screened and classified as Shariah-compliant, they can be qualified to be part of one’s wealth from which zakat shall be paid. However, the findings of this research shall be subject to the fatwa and rules adopted in the specific jurisdiction in which the zakat payer resides. Laws made by the ruler to benefit the public ought to be considered in upholding the masalih (public interests) of all, which is in line with the legal maxim of “tasarruf al imam manut bi al-maslahah” (the ruler’s decision is dictated in favor of the people).

Originality/value

It is anticipated that the findings of this research will benefit zakat organizations and zakat payers in understanding how they should deal with cryptocurrencies and crypto assets in the collection and payment of zakat.

Details

International Journal of Islamic and Middle Eastern Finance and Management, vol. 16 no. 3
Type: Research Article
ISSN: 1753-8394

Keywords

Article
Publication date: 12 March 2018

Aishath Muneeza

It is said that to establish an Islamic Capital Market, the first step would be to have a strong Islamic finance industry with numerous institutions offering Islamic financial…

Abstract

Purpose

It is said that to establish an Islamic Capital Market, the first step would be to have a strong Islamic finance industry with numerous institutions offering Islamic financial services. This way it is easy to know that the demand for Islamic capital market would be there and that market will be sophisticated enough to comprehensive the nature of shariah compliant products. Generally, in most of the jurisdictions, this is how the Islamic capital market is created. The purpose of this paper is to understand the establishment of Islamic capital market in Maldives, small island nation where the establishment of Islamic capital market happened when at a time there was only one takaful company and one Islamic bank established.

Design/methodology/approach

This paper is a legal exploratory research that is based on the review of primary and secondary data available on the subject matter.

Findings

It is anticipated that this paper will provide assistance and inspiration to those jurisdictions that aims to create Islamic capital market from scratch.

Originality/value

It shall be noted that there are no literature available on this subject about Maldives, and as such, this paper can be starting point to preserve knowledge in this area.

Details

International Journal of Law and Management, vol. 60 no. 2
Type: Research Article
ISSN: 1754-243X

Keywords

Article
Publication date: 16 March 2020

Aishath Muneeza and Zakariya Mustapha

This paper aims to examine existing Halal certification regime in Maldives and address impediments therein that challenge and inhibit the growth of the country’s Halal industry in…

Abstract

Purpose

This paper aims to examine existing Halal certification regime in Maldives and address impediments therein that challenge and inhibit the growth of the country’s Halal industry in relation to fisheries products.

Design/methodology/approach

This is qualitative research based on first-hand experiences of the authors in the Halal certification process in the Maldives. Doctrinal methodology is used in the analysis of primary sources of data, including Maldivian laws and Halal certification regulations to identify issues of practical relevance. This is complemented with content analysis of secondary data sourced from journal articles, books, reports and online databases that were examined in identifying hindrances and loopholes in the Halal certification process.

Findings

Fish is generally Halal, but processed fisheries products cannot be so deemed when certain additives and enhancers are constituents therein. At the moment, Maldives Halal certification pertains only to fisheries products. Against this backdrop, this research identifies knowledge gap, legal and governance constraints pertaining to capacity as impediments towards the Halal certification of such products in the Maldives. Such concerns hinder the Maldives from tapping the socio-economic benefits of the Halal certification of its fisheries products to the desired level in the development of its Halal industry.

Research limitations/implications

This is pioneer research with reference to the Maldives. Absence of researches on the subject brings about scantily available secondary data in the area. Moreover, no empirical data were involved in conducting the research.

Practical implications

As the only products subject of Halal certification process, this research offers an insight into the regulations underpinning Halal certification of fisheries products and related impediments thereto in developing the Maldivian Halal industry generally. Identifying and understanding the impediments to Halal certification process would facilitate their elimination and promote Halal certified fisheries products.

Originality/value

This research highlights and evaluates the Halal certification regime in the Maldives and provides a starting point for further research thereon. The research contributes towards making robust and standard Halal certification criterion and paves the way forward for developing the Halal industry in the Maldives.

Details

Journal of Islamic Marketing, vol. 12 no. 2
Type: Research Article
ISSN: 1759-0833

Keywords

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