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There are two purposes to this study: first, to identify the status of ḥiyal (legal devices) in the offering of deposit products based on the tawarruq contract in the Malaysian Islamic banking industry and second, to identify the reasons for the widespread offering of tawarruq-based deposit products by Malaysian Islamic banks (IBs).

The study uses the qualitative method that involved interviews with Malaysian Sharī‘ah experts and Islamic banking operations experts.

The findings show that Malaysian IBs resolved to use the tawarruq munaẓẓam contract in deposit products due to several constraints in the existing banking system and in view of customer preferences.

This study solely focuses on tawarruq-based deposit products due to its extensive application in the Malaysian Islamic banking industry.

The implication of the study is that more stringent procedures are required in the offering of tawarruq-based deposit products as they are extensively utilised and have sparked controversy among Sharī‘ah scholars. Moreover, to retain Malaysia's Islamic banking reputation and trustworthiness, new and less controversial contracts must be developed.

This paper discusses the extensive usage of ḥiyal-based contracts such as tawarruq in Islamic banking institutions' deposit products, with justifications from Malaysian Islamic banking experts. The widespread use of the tawarruq munaẓẓam contract in deposit-based product offerings is based on a reasonable view considering the constraints that Malaysian Islamic banking is currently facing, with strict operation procedures by Bank Negara Malaysia to ensure real operations and to avoid fictitious elements. This paper reveals the use of tawarruq munaẓẓam in deposit products which allows the Islamic banking industry to operate effectively under Malaysia's dominant conventional banking system.

This paper aims to develop a Sharīʿah framework for using ḥiyal in Islamic finance. Ḥīlah (singular of ḥiyal) is an Islamic juristic term which refers to the application of acumen and ingenuity to avoid hardship in one’s commitment to Islamic rulings. It has been used as a legal device in Islamic jurisprudence to actualize a legitimate objective. Particularly, it plays a significant role in financial engineering, as it alleviates financial predicaments with remedies.

The study adopted qualitative method of research by using content analysis approach. Inductive reasoning is applied to drive legal provisions from Sharīʿah sources that would be used as basic principles to develop an objective measure for using ḥiyal in Islamic banking and finance.

This study attempted to identify the distinctive features of legitimate ḥiyal for the purpose of developing a Sharīʿah framework. It is observed that a ḥīlah would be considered permissible in Islamic finance if it meets the prescribed criteria of (1) Sharīʿah objectives, (2) user’s motivation, (3) means, (4) benefit and (5) concessionary rules. This proposed framework may serve as an ‘objective measure’ that will determine whether a ḥīlah based financial engineering aims to actualize a genuine economic need or to circumvent the prohibition of ribā.

The proposed standard of ḥiyal will enable Sharīʿah advisors, economists, financial engineer, legal experts and policy makers to develop comprehensive guidelines for using ḥiyal in Islamic financial engineering.

Islamic financial institutions rely heavily on ḥiyal to operate in a predominant conventional financial system. The application of these legal stratagems in Islamic finance has been the center of an intense debate between Islamic economists and jurists. The former argues that over-reliance on ḥiyal not only divorces morality from technicality but also defeats the noble purposes of Islamic economics. This paper provides a synthesis of the diverse views on the subject to facilitate a minimum level of convergence among scholars on the permissibility of ḥiyal.