The topic of my present research work is “Islamic Banking and global financial market” and how they are interrelated to lead to the sustainable growth of economic development. Islamic finance is closely related to Islam's vision of economic development, which gives primary importance to the realization of socioeconomic justice and the well-being.
The subject of Islam and economic development raises a number of
questions, one of which is about the relevance of the subject to a
discussion forum on Islamic finance. This question is not difficult to
answer because finance and development are very closely interrelated.
Finance is not an end in itself; it is one of the essential means to
development, which in turn leads to a rise in financial resources for
accelerating development. The juxtaposition of Islam and economic
development in the title also raises some other questions. One of these
is whether Islam is an asset or a liability for development and whether
Islam and development can coexist without hurting each other. If Islam
is capable of promoting development then the second and third questions
are about the kind of development that Islam visualizes, and the
reasons for the failure of Muslim countries to realize development of
this kind.
As the economic crisis deepens throughout the world, global financial institutions have set about to re evaluate the various systems and business models in place. It is no exaggeration to say that practically every mainstream and conventional banking institution has been affected by the global financial crisis. In contrast, the Islamic banking system has largely escaped the fallout from the financial crisis, thanks to rules that forbid the sort of risky business ventures that infected mainstream institutions.
There is no doubt that the current global financial crisis has presented the Islamic finance industry with an excellent opportunity to expand its appeal beyond Muslim investors as a safe haven from the speculative excesses. The message may have particular resonance in the West after the crumbling of the US mortgage market left banks holding hundreds of billions of dollars of nearly worthless credit instruments tied to home loans by a web of complex structures. Investors traumatized by the credit crisis are seeking assurances and security. The stricter rules imposed on lending by Islamic laws provide these assurances and security. Many of the speculative and highly risky structures and financing methods that have proven to be the nemesis of the western financial industry are forbidden under Islamic laws. Islamic finance practices are undoubtedly fiscally more conservative, requiring direct participation by investors in plans that do not involve esoteric strategies such as parking assets in off-balance-sheet vehicles.
While Islamic banking is no longer a novelty in the international financial world, the United States is yet to embrace this model. While some US financial institutions are venturing into this market, they are few and far between. According to some experts and financial gurus, the United States is almost a decade behind the European and Asian financial counterparts as far as the adoption and implementation of Islamic banking is concerned.
What Is Islamic Finance?
In order for one to understand how Islamic banks have virtually escaped unscathed from this financial crisis, it is essential to have a grasp of the basic fundamentals of Islamic finance. Islamic finance is based on shariah, or Islamic law, which in essence requires that gains be derived from ethical and socially responsible investments and discourages interest-based banking and investments. Islamic finance is fundamentally different from the conventional banking models as it is based on a profit and loss structure (PLS) and the prohibition of riba' (interest). This structure requires that the financial institution invest with the client in order to finance the client's transaction rather than lend money to the client. Due to the inherent risk involved in any investment, the financial institution is entitled to profit from the financial transaction. This is a stark contrast to modern finance in which interest is one of the key methods by which banks make money through their products, such as mortgages and personal loans.
Another fundamental distinction of an Islamic bank is the absence of insurance protecting client deposits found in conventional banks. While the PLS structure permits receipt of money by depositors when deposits invested have earned a profit, they must incur losses when deposit investments incur losses to comply with shariah mandates. Deposit insurance, such as the protection provided by the Federal Deposit Insurance Corporation, defeats the very purpose of the PLS model, as the depositor does not incur any risk. The deposit insurance is an integral part of the western banking regulations but is in direct conflict to the basic concepts of Islamic banking. The issue of deposit insurance has proven to be a major hurdle for western, primarily European, banks that wanted and have chosen to provide shariah-compliant products. European banks overcame this hurdle of deposit insurance by informing clients that the insurance was not shariah-compliant.[1]
Islamic banks have been marketing their services aggressively in the West. The conventional commercial banks have in direct competition with the purely Islamic banks begun offering Islamically structured products to their clients through "Islamic banking windows'. However, confusion exists about Islamic banking. In many minds, the prohibition of interest is the defining characteristic of Islamic banking, but it can be distinguished from conventional banking by its concern with spiritual values and social justice.
The fact that interest is prohibited does not mean capital is costless. Islam is not opposed to a return on capital. What it prohibits is the predetermined pricing of capital. The owners of capital have no right to ask for additional payment without sharing risk. Thus in lieu of fixed interest which is prohibited, the lender will be a participant in the enterprise. [2]
Islam and Banking
A. The Prohibition of Riba (interest): legal connotations
The Qur'an, or holy book of Islam, is the primary Islamic authority and it prohibits riba. The prohibition appears in several passages in the Qur'an. One passage states that God does not view interest as true wealth because it represents unearned income. Another passage condemns Jews for not obeying the Torah's prohibition of interest. A third passage condemns the compounding of interest upon default by stating "O believers, take not doubled and redoubled interest, and fear God so that you may prosper. Fear the fire which has been prepared for those who reject the faith . . . ." A final condemnation warns that those who receive riba are waging war with God and shall be "inhabitants of the fire and abide there forever." Scholars have noted that the taking of riba is on par with repeated adultery and deemed more sinful than maternal incest--two crimes in Islamic criminal law that are punishable by death.
The riba prohibition reflects the Islamic view that accumulating wealth through collecting riba is not a legitimate mode of “work”. Islam values capital when it is the product of labour and risk-taking. When a lender charges interest for capital, he receives a reward without adding his labour and without regard to the success or failure of the borrower's venture. The benefit of the loan to the lender is certain while the benefit of the capital to the borrower is uncertain. Islam views these transactions as necessarily including unfair allocations of risk and justifying reward for a passively acquired return on capital. Riba is thus exploitive vies-a-vies the borrower and its prohibition limits the extent to which one party may be disadvantaged by the other party in financial transactions.
Prohibiting economic exploitation is important in Islam because Allah wills his followers to accumulate wealth in a manner that achieves social justice. Social justice, however, should not be mistaken to mean that Allah wanted people to be equal in wealth. Muslims believe that God "deliberately created disparities in the distribution of goods in this world." Rather, social justice supported by legitimate work means that "no one may claim more than he has earned" and may not use wealth to disparage others. This thought, when applied to conventional banking, means that investments cannot be viewed solely through the lens of achieving the highest profit margin. Instead, Islam places accession to wealth in relation to spiritual costs to the individual and social costs to the community.
Outside of social justice, Islamic scholars have also offered economic critiques of interest that support its prohibition. Scholars have argued that the unjust allocation of risk between borrower and lender creates a "penalty upon entrepreneurial initiative.” In a truly competitive market, Islamic scholars believe it to be unlikely that an investment could result in gross profits that also cover the interest. Since capital would be unproductive without entrepreneurial input, the disincentive to create wealth hinders economic growth.[3]
Ideological issues involved in Islamic Banking mechanism
Twenty years ago, Islamic banks were unknown; today, they number in the hundreds worldwide and hold more than U.S. $160 billion in assets. In the world of global finance, this is not a large amount, but its growth rate is substantial. Furthermore, the concept is discussed heatedly in every Muslim country.
In light of Islam's rapid development, especially in countries like the United Kingdom, France and the United States, Islamic banks will likely play a role in the development and globalization of world financial markets. But more importantly, Islamic banking offers a means of reintroducing ethics into the global financial system.[4]
At a time when global economic forces are causing great hardship for people around the world, and the harsh demands of the market seem to supersede concern for the well-being of fellow humans, Islamic banking may serve as a means of re-imbuing modern banking with ethical norms. Within the broader financial system, Islamic finance can play a role in re establishing a sense of ethics that has been lost and to try to make its concept and products acceptable to ethically minded Muslims, Christians, Jews and others who are engaged in financial transactions.
As a religion based upon justice, Islam can serve as an ethical framework for regulating monetary transactions between people and, in this way, influence the global market place.
The words "Islamic banking" has a strong emotional effect. In the Islamic world, some individuals and institution representatives talk as if patronizing Islamic banks makes them more pious than those who patronize traditional banks. For many more, there is a certain pride in knowing that their institutions, organized under their religious laws, have successfully adapted modern financial instruments yet remained true to the tenets of their religion. Others, however, both Muslim and non-Muslim, feel certain uneasiness. To use an American expression, there is a certain sense of "in-your-face" about the term "Islamic banking," a certain defiance of the secular Western edifice. This ideological bent to Islamic banking greatly obfuscates the true value of Islam to the financial world. As mentioned above, Islamic banking should not be applied from a rigorously legalistic viewpoint, especially regarding interest. Rather, it should emphasize the application of social justice in the financial realm, a notion that has been forgotten by Western banking institutions.
Much writing on Islamic banking has a strong ideological bent. There seems to be an assumption that Islamic banking is a newly developed thought, a new form of Islamic ijtihad, or exegesis of the religious texts.[5] S.H. Homood has pointed out that interest and usury are discussed in the Bible (Ezekiel, 18:8, Deuteronomy 23:19). These paragraphs, which apply to Jews and Christians alike, clearly forbid the use of usury in dealing with people. For centuries, Christians had a very strong prejudice against interest, which they used, however reluctantly.
Despite the above-mentioned pride in Islamic banking, there also is certain ambivalence. While conservatives argue that it is impious for Muslims to participate in Western and Western-style financial institutions, others argue that there have been various forms of interest-style lending in the Islamic world for centuries. Given that previous generations of Muslims did not appear to have wrestled with their consciences over it, many Muslims today resent being described as sinners for similar activities
Trends in Islamic banking system
Financial markets as a whole, including Islamic ones, are going through constant change. The globalization of markets has placed a premium on profits at all costs. Islamic banks also are going through changes. Of course, the concept of creating Islamic instruments is quite new, and this new industry, like any other, has to find its own way.
Today, the trend in Islamic banking appears to be toward the development of boutique Islamic investment banks. In fact, a number of relatively new institutions are not banks in the traditional sense. They are closer to what the U.S. comptroller of the currency calls "non-bank banks." These institutions focus on a precise instrument. For example, the Islamic Leasing Company of Bahrain borrows money from other banks, including, but not exclusively, its parent, Al-Faisal Investment Bank. There is a privately held company in Jeddah that provides consumer loans on an Islamic basis. As mentioned above, Al-Baraka invests the funds of sophisticated buyers, somewhat like a privately held merchant bank in Europe. Islamic mutual funds are growing strongly. There also are a large number of Islamic funds in the United States investing in a variety of instruments, from shares to mortgages.[6]
Islamic institutions have been springing up almost everywhere Muslims live. There appear to be many of these institutions emerging in former Soviet Central Asia. It will be particularly interesting to follow the contribution of Islamic banks to development in the Commonwealth of Independent States, particularly in countries such as Kazakhstan and Uzbekistan.
In the world of global international capital, Islamic banking is not a large force, but its role in the Muslim world and its influence worldwide are potentially large. Beyond the rhetoric of piety surrounding Islamic banking and the legalistic discussion of the use of interest, is a more important issue, the idea of justice. Practitioners and theorists in the field must move beyond these discussions and work to increase the visibility of Islamic banking to facilitate its most important contribution: the reintroduction of ethics into financial transactions.
Conceptual Analysis of Islamic Banking System
Islamic banking refers to a system of banking or banking activity that is consistent with the principles of Islamic law (Shariah) and its practical application through the development of Islamic economics. Shariah prohibits the payment of interest fees for the lending of money (Riba, usury) for specific terms, as well as investing in businesses that provide goods or services considered contrary to its principles (Haraam, forbidden). While these principles were used as the basis for an economy in earlier times, it is only in the late 20th century that a number of Islamic banks were formed to apply these principles to private or semi-private commercial institutions within the Muslim community.
Islamic banking has gained momentum; controversy has arisen over role and methods of operation in financial intermediation. Acting as an Islamic bank means following the principles of shariah in financial transactions, but definition is difficult because of the many ways that Islamic law is interpreted and applied.
Most critics note that it is theoretically possible to act as an Islamic bank only in a totally Islamic financial system. Yet, in all countries where they are operating, Islamic banks are still in minority and follow a system and practice that does not parallel that of other banks operating in same community. To interact successfully with other financial institutions, Islamic banks can follow shariah laws only to the extent that they remain competitive with interest based financial institutions. Even in Pakistan, where uniform Islamic financial system has been proposed, the eventual success of Islamic banks depends upon thier success in international finance.
Defining Islamic banks has become increasingly difficult in recent years because many have expanded their banking services and methods of financing to include international market and non banking ventures. For example there is one successful organisation called “Dar-al-Maal al Islami” which defines itself as an Islamic financial institution rather than Islamic bank.
While some bankers felt, Islamic banks do act as intermediaries because they buy and sell commodities and are identical to conventional banks in many respects. The difference is mainly cosmetic. Even though Islamic banks may perform an intermediary functions, they do not necessarily do so Islamically.[7]
History of Islamic Banking
Ø Classical Islamic banking
During the Islamic Golden Age, early forms of proto-capitalism and free markets were present in the Caliphate, where an early market economy and an early form of mercantilism were developed between the 8th-12th centuries, which some refer to as "Islamic capitalism". A vigorous monetary economy was created on the basis of the expanding levels of circulation ofa stable high-value currency (the dinar)and the integration of monetary areas that were previously independent.
A number of innovative concepts and techniques were introduced in early Islamic banking, including bills of exchange, the first forms of partnership(mufawada) such as limited partnerships (mudaraba), and the earliest forms of capital (al-mal), capital accumulation (nama al-mal), cheques, promissory notes, trusts, start up companies transactional accounts, loaning, ledgers and assignments.
Organizational enterprises similar to corporation’s independent from the state also existed in the medieval Islamic world, while the agency institution was also introduced during that time. Many of these early capitalist concepts were adopted and further advanced in medieval Europe from the 13th century onwards.[8]
Ø Modern Islamic banking
The first modern experiment with Islamic banking was undertaken in Egypt under cover without projecting an Islamic image—for fear of being seen as a manifestation of Islamic fundamentalism that was anathema to the political regime. The pioneering effort, led by Ahmad Elnaggar, took the form of a savings bank based on profit-sharing in the Egyptian town of Mit Ghamr in 1963. This experiment lasted until 1967 (Ready 1981), by which time there were nine such banks in the country.[9]
In 1972, the Mit Ghamr Savings project became part of Nasr Social Bank which, till date, is still in business in Egypt. In 1975, the Islamic Development Bank was set-up with the mission to provide funding to projects in the member countries. The first modern commercial Islamic bank, Dubai Islamic Bank, opened its doors in 1975. In the early years, the products offered were basic and strongly founded on conventional banking products, but in the last few years the industry is starting to see strong development in new products and services.
Islamic Banking is growing at a rate of 10-15% per year and with signs of consistent future growth. Islamic banks have more than 300 institutions spread over 51 countries, including the United States through companies such as the Michigan-based University Bank, as well as an additional 250 mutual funds that comply with Islamic principles. Conservative estimates suggest that over US$500 billion of assets are managed according to Islamic investment principles.
The World Islamic Banking Conference, held annually in Bahrain since 1994, is internationally recognized as the largest and most significant gathering of Islamic banking and finance leaders in the world.
The Vatican has put forward the idea that "the principles of Islamic finance may represent a possible cure for ailing markets."[10]
Interest free banking: Its Legal aspects involved
In order to better understand the logic and legal principles of the working of Islamic banks and how they are related to today’s economy, it is better to concentrate first on certain aspects of Islamic law as provided under Islamic law i.e. Sharia.
What is the Sharia?
Shariah is the sacred law of Islam and is the whole body of ethical and legal rules elucidated through the discipline of Fiqh (jurisprudence). The two primary sources of Islamic Sharia law are the Koran (the holy scriptures) and the Sunnah (rules deduced from the sayings and conduct of the Holy Prophet, peace be upon him). The primary sources are supplemented by the two dependent sources namely, Ijma (consensus) and Qiyas (reasoning by analogy), which is similar to the process of English law in so far as it seeks to extract the general principles underlying a decision from the particular facts of the case and applying it to analogous cases that arise later. The works of the four great jurists of the Classical period, Abu Hanifa, Anas Ibn Malik, Muhammad Al Shafi and Ahmad Ibn Hambal, must be considered. The corpus of literature developed by these schools refers to methods that were developed to work out a path around the Shariah doctrines that were considered inconvenient or unsuited to contemporary practice. The key principles enshrined in the Shariah which shape the way Islamic finance has evolved are riba (interest), gharar (uncertainty), maisir (speculation or gambling) and haram (prohibited commodities).
Nature of riba
The Koran categorically prohibits the giving or receiving of interest, regardless of the purpose for which the loan is made and regardless of the rate of interest charged. Although there is consensus among the Muslim scholars that riba is banned, controversy exists over what the concept actually is, and consequently what financial transactions are prohibited.[11]
Islamic scholars differ on the scope of prohibition of riba. Dr Siddiqui in his book on Islamic banking* attempts to resolve the issue when after examining and debating on the true nature of riba he reaches the conclusion that bank interest in all its forms and intent is riba.[12]
Sharia's role in the structuring of transactions
All current concepts of Islamic banking are drawn from Islamic financial practice, found unobjectionable and subsequently institutionalised in Islamic law. The law itself is clear but its translation into modern rapidly evolving financial products and practice is inevitably open to different interpretations. Although there is a substantial literature on the methods of financing, there exists no practical guide to Islamic financial instruments and no universally acknowledged manual for the Islamic banker to follow. Indeed there is considerable divergence in the financial practice between institutions.
The answer to the problem of structuring Islamic financial products is to understand in particular that part of the Sharia law known as "Muamallat, fiqh', which pertains to commercial transactions. Modern Islamic banking draws its legitimacy from reasoning going back to the medieval Islamic jurists. It borrows heavily from the specific financial instruments that had legal sanction in the conduct of medieval commerce.
Legal Principles involved in Islamic Banking
Islamic banking has the same purpose as conventional banking except that it operates in accordance with the rules of Shariah, known as Fiqh al-Muamalat (Islamic rules on transactions). The basic principle of Islamic banking is the sharing of profit and loss and the prohibition of riba (usury). Common terms used in Islamic banking include profit sharing (Mudharabah),safekeeping (Wadiah), joint venture (Musharakah), cost plus (Murabahah), and leasing (Ijarah).
In an Islamic mortgage transaction, instead of loaning the buyer money to purchase the item, a bank might buy the item itself from the seller, and re-sell it to the buyer at a profit, while allowing the buyer to pay the bank in instalments. However, the fact that it is profit cannot be made explicit and therefore there are no additional penalties for late payment. In order to protect itself against default, the bank asks for strict collateral. The goods or land is registered to the name of the buyer from the start of the transaction. This arrangement is called Murabaha.
Another approach is EIjara wa EIqtina, which is similar to real estate leasing. Islamic banks handle loans for vehicles in a similar way (selling the vehicle at a higher-than-market price to the debtor and then retaining ownership of the vehicle until the loan is paid).
An innovative approach applied by some banks for home loans, called Musharaka al-Mutanaqisa, allows for a floating rate in the form of rental. The bank and borrower form a partnership entity, both providing capital at an agreed percentage to purchase the property. The partnership entity then rents out the property to the borrower and charges rent. The bank and the borrower will then share the proceeds from this rent based on the current equity share of the partnership. At the same time, the borrower in the partnership entity also buys the bank's share of the property at agreed instalments until the full equity is transferred to the borrower and the partnership is ended. If default occurs, both the bank and the borrower receive a proportion of the proceeds from the sale of the property based on each party's current equity. This method allows for floating rates according to the current market rate such as the BLR (base lending rate), especially in a dual-banking system like in Malaysia.
There are several other approaches used in business transactions. Islamic banks lend their money to companies by issuing floating rate interest loans. The floating rate of interest is pegged to the company's individual rate of return. Thus the bank's profit on the loan is equal to a certain percentage of the company's profits. Once the principal amount of the loan is repaid, the profit-sharing arrangement is concluded. This practice is called Musharaka. Further, Mudaraba is venture capital funding of an entrepreneur who provides labour while financing is provided by the bank so that both profit and risk are shared. Such participatory arrangements between capital and labour reflect the Islamic view that the borrower must not bear all the risk/cost of a failure, resulting in a balanced distribution of income and not allowing lender to monopolize the economy.
And finally, Islamic banking is restricted to Islamically acceptable transactions, which exclude those involving alcohol, pork, gambling, etc. Thus ethical investing is the only acceptable form of investment, and moral purchasing is encouraged. In theory, Islamic banking is an example of full-reserve banking, with banks achieving a 100% reserve ratio. However, in practice, this is not the case, and no examples of 100 per cent reserve banking are observed.[13] Islamic banks have grown recently in the Muslim world but are a very small share of the global banking system. Micro-lending institutions founded by Muslims, notably Grameen Bank, use conventional lending practices and are popular in some Muslim nations, especially Bangladesh, but some do not consider them true Islamic banking. However, Muhammad Yunus, the founder of Grameen Bank and microfinance banking, and other supporters of microfinance, argue that the lack of collateral and lack of excessive interest in micro-lending is consistent with the Islamic prohibition of usury (riba).
Shariah Advisory Council/Consultant
Islamic banks and banking institutions that offer Islamic banking products and services (IBS banks) are required to establish a Shariah Supervisory Board (SSB) to advise them and to ensure that the operations and activities of the bank comply with Shariah principles. On the other hand, there are also those who believe that no form of banking can ever comply with the Shariah. In Malaysia, the National Shariah Advisory Council, which additionally set up at Bank Negara Malaysia (BNM), advises BNM on the Shariah aspects of the operations of these institutions and on their products and services. In Indonesia the Ulama Council serves a similar purpose.
A number of Shariah advisory firms (either standalone or subsidiaries of larger financial groups) have now emerged to offer Shariah advisory services to the institutions offering Islamic financial services. Issue of independence, impartiality and conflicts of interest have also been recently voiced.
Islamic financial transaction terminology
* Bai' al-inah (sale and buy-back agreement)
The financier sells an asset to the customer on a deferred-payment basis, and then the asset is immediately repurchased by the financier for cash at ownership over the asset in order to protect against default without explicitly charging interest in the event of late payments or insolvency. Some scholars believe that this is not compliant with Shariah principles.
* Bai' bithaman ajil (deferred payment sale)
This concept refers to the sale of goods on a deferred payment basis at a price, which includes a profit margin agreed to by both parties. This is similar to Murabaha, except that the debtor makes only a single instalment on the maturity date of the loan. By the application of a discount rate, an Islamic bank can collect the market rate of interest
* Bai muajjal (credit sale)
Literally bai muajjal means a credit sale. Technically, it is a financing technique adopted by Islamic banks that takes the form of murabaha muajjal. It is a contract in which the bank earns a profit margin on the purchase price and allows the buyer to pay the price of the commodity at a future date in a lump sum or in instalments. It has to expressly mention cost of the commodity and the margin of profit is mutually agreed. The price fixed for the commodity in such a transaction can be the same as the spot price or higher or lower than the spot price.
* Mudarabah (profit sharing)
Mudarabah is an arrangement or agreement between the bank, or a capital provider, and an entrepreneur, whereby the entrepreneur can mobilize the funds of the former for its business activity. The entrepreneur provides expertise, labour and management. Profits made are shared between the bank and the entrepreneur according to predetermined ratio. In case of loss, the bank loses the capital, while the entrepreneur loses his provision of labour. It is this financial risk, according to the Shariah, that justifies the bank's claim to part of the profit. The profit-sharing continues until the loan is repaid. The bank is compensated for the time value of its money in the form of a floating rate that is pegged to the debtor's profits
* Murabahah (cost plus)
"Mudarabah" is a special kind of partnership where one partner gives money to another for investing it in a commercial enterprise. The investment comes from the first partner who is called "rabb-ul-mal", while the management and work is an exclusive responsibility of the other, who is called "mudarib". This concept refers to the sale of goods at a price, which includes a profit margin agreed to by both parties. The purchase and selling price, other costs, and the profit margin must be clearly stated at the time of the sale agreement. The bank is compensated for the time value of its money in the form of the profit margin. This is a fixed-income loan for the purchase of a real asset (such as real estate or a vehicle), with a fixed rate of profit determined by the profit margin. The bank is not compensated for the time value of money outside of the contracted term (i.e., the bank cannot charge additional profit on late payments); however, the asset remains as a mortgage with the bank until the Murabaha is paid in full.
This type of transaction is similar to rent-to-own arrangements for furniture or appliances that are very common in North American stores.
* Musawamah
Musawamah is the negotiation of a selling price between two parties without reference by the seller to either costs or asking price. While the seller may or may not have full knowledge of the cost of the item being negotiated, they are under no obligation to reveal these costs as part of the negotiation process. This difference in obligation by the seller is the key distinction between Murabaha and Musawamah with all other rules as described in Murabaha remaining the same. Musawamah is the most common type of trading negotiation seen in Islamic commerce.
* Bai salam
Bai salam means a contract in which advance payment is made for goods to be delivered later on. The seller undertakes to supply some specific goods to the buyer at a future date in exchange of an advance price fully paid at the time of contract. It is necessary that the quality of the commodity intended to be purchased is fully specified leaving no ambiguity leading to dispute. The objects of this sale are goods and cannot be gold, silver, or currencies based on these metals. Barring this, Bai Salam covers almost everything that is capable of being definitely described as to quantity, quality, and workmanship.
* Hibah (gift)
This is a token given voluntarily by a debtor to a creditor in return for a loan. Hibah usually arises in practice when Islamic banks voluntarily pay their customers a 'gift' on savings account balances, representing a portion of the profit made by using those savings account balances in other activities.
It is important to note that while it appears similar to interest, and may, in effect, have the same outcome, Hibah is a voluntary payment made (or not made) at the bank's discretion, and cannot be 'guaranteed.' However, the opportunity of receiving high Hibah will draw in customers' savings, providing the bank with capital necessary to create its profits; if the ventures are profitable, then some of those profits may be gifted back to its customers as Hibah.
* Ijarah
Ijarah means lease, rent or wage. Generally, Ijarah concept means selling benefit or use or service for a fixed price or wage. Under this concept, the Bank makes available to the customer the use of service of assets / equipments such as plant, office automation, motor vehicle for a fixed period and price.
* Musharakah (joint venture)
Musharakah is a relationship between two parties or more, of whom contribute capital to a business, and divide the net profit and loss pro rata. This is often used in investment projects, letters of credit, and the purchase or real estate or property. In the case of real estate or property, the bank assesses an imputed rent and will share it as agreed in advance. All providers of capital are entitled to participate in management, but not necessarily required to do so. The profit is distributed among the partners in pre-agreed ratios, while the loss is borne by each partner strictly in proportion to respective capital contributions. This concept is distinct from fixed-income investing (i.e. issuance of loans).
* Qard hassan/ Qardul hassan (good loan/benevolent loan)
This is a loan extended on a goodwill basis, and the debtor is only required to repay the amount borrowed. However, the debtor may, at his or her discretion, pay an extra amount beyond the principal amount of the loan (without promising it) as a token of appreciation to the creditor. In the case that the debtor does not pay an extra amount to the creditor, this transaction is a true interest-free loan. Some Muslims consider this to be the only type of loan that does not violate the prohibition on riba, since it is the one type of loan that truly does not compensate the creditor for the time value of money.
* Sukuk (Islamic bonds)
Sukuk is the Arabic name for a financial certificate but can be seen as an Islamic equivalent of bond. However, fixed-income, interest-bearing bonds are not permissible in Islam. Hence, Sukuk are securities that comply with the Islamic law (Shariah) and its investment principles, which prohibit the charging or paying of interest. Financial assets that comply with the Islamic law can be classified in accordance with their tradability and non-tradability in the secondary markets.
* Takaful (Islamic insurance)
Takaful is an alternative form of cover that a Muslim can avail himself against the risk of loss due to misfortunes. Takaful is based on the idea that what is uncertain with respect to an individual may cease to be uncertain with respect to a very large number of similar individuals. Insurance by combining the risks of many people enables each individual to enjoy the advantage provided by the law of large numbers.
* Wadiah (safekeeping)
In Wadiah, a bank is deemed as a keeper and trustee of funds. A person deposits funds in the bank and the bank guarantees refund of the entire amount of the deposit, or any part of the outstanding amount, when the depositor demands it. The depositor, at the bank's discretion, may be rewarded with Hibah as a form of appreciation for the use of funds by the bank.
* Wakalah (power of attorney)
This occurs when a person appoints a representative to undertake transactions on his/her behalf, similar to a power of attorney.
* Islamic equity funds
Islamic investment equity funds market is one of the fastest-growing sectors within the Islamic financial system. Currently, there are approximately 100 Islamic equity funds worldwide. The total assets managed through these funds currently exceed US$5 billion and is growing by 12–15% per annum. With the continuous interest in the Islamic financial system, there are positive signs that more funds will be launched. Some Western majors have just joined the fray or are thinking of launching similar Islamic equity products.
Despite these successes, this market has seen a record of poor marketing as emphasis is on products and not on addressing the needs of investors. Over the last few years, quite a number of funds have closed down. Most of the funds tend to target high net worth individuals and corporate institutions, with minimum investments ranging from US$50,000 to as high as US$1 million. Target markets for Islamic funds vary; some cater for their local markets, e.g., Malaysia and Gulf-based investment funds. Others clearly target the Middle East and Gulf regions, neglecting local markets and have been accused of failing to serve Muslim communities.
Since the launch of Islamic equity funds in the early 1990s, there has been the establishment of credible equity benchmarks by Dow Jones Islamic market index (Dow Jones Indexes pioneered Islamic investment indexing in 1999) and the FTSE Global Islamic Index Series. The Web site failaka.com monitors the performance of Islamic equity funds and provides a comprehensive list of the Islamic funds worldwide.[14]
Understanding the Islamic prohibition of interest
* Why there is a need of Islamic Banking System
Both the sources of law regarding the prohibition of riba and interpretations of the prohibition that call for its universal application show that riba is in direct conflict with Islamic ideals and precepts. Much of the confusion that arises in the non-Islamic world regarding Islam's interest prohibition is based on an isolated view of the prohibition. In other words, unless the totality of Islam as a religion is taken into account, an analysis of riba from a peripheral perspective will remain inadequate. The above examination of the goals of Islam, the specific textual prohibitions of riba, and interpretations regarding its application to all forms of interest should provide the foundation for a sufficient understanding of Islamic banking and finance.
With a deeper understanding, it is possible to move into a specific analysis of the need for Islamic banking, its principles, and the alternative methods of banking that arise out of these principles. Such an analysis will illustrate that Islamic and non-Islamic systems of banking can not only co-exist, but also can benefit from one another.
* The Need for and Principles of Islamic Banking and Finance
The Islamic banking and finance movement is the result of a recent resurgence felt throughout the Muslim world, one that emphasizes a stricter adherence to the Shari'ah in all areas of governance. According to some, this resurgence in religious conservatism is largely the result "of a long prevailing identity crisis being experienced by Muslims. The self-pride of Muslims that came from having been conquerors and rulers for over a millennium was battered by the shocking reality of Western military and technological superiority." This sociological phenomenon can be explained in the context of Islamic history. Once the prohibition of riba came into conflict with the current modes of banking and finance (which were based on Western models), devout Muslims were, and continue to be, extremely embarrassed. The ban on interest had a limited effect as evidenced by the variety of legal loopholes (hiyal) that were created to get around the ban. More importantly, "most non-Muslims writing on Islamic law saw only this negative aspect of the matter and were prompt to tax Muslims with shallowness and religious hypocrisy." Furthermore, the success of socio-economic ideologies such as capitalism has contributed to this weakened self-pride. Perhaps in an attempt to develop a strong Muslim identity, Muslim communities have reacted through the current Islamic banking and finance movement and its attempt strictly comply.
Though the goal of strict compliance is clear, there are significant problems regarding its implementation. As previously mentioned, the Islamic system of banking and finance was based on capitalistic models of interest-based banking. Though there was a strong resurgence in the revival of Islamic values, Muslims were hard-pressed to find a "quick fix" to the problems associated with following practices that did not comport with the Shari'ah. In a sense, Muslims were put in an inherently unfair position because of the unrealistic expectation that they refrain from involvement in riba transactions because the ruling economic order of the time was interest-based. The Islamic world, consequently, needed an entirely new system that was wholly based on the value and goal of Islam and shariah law, which is fountainhead.
This need led to the problem of ascertaining a method of banking and finance that would provide similar incentives to those of interest-based banking alternatives (i.e., incentives for both the lender and borrower to enter into banking transactions) while also strictly adhering to the Shari'ah. As previously mentioned, Islam encourages the accumulation of wealth so long as it is used for the benefit of society as a whole in conformance with Islam's objectives. [15] Outsiders unfamiliar with the Islamic paradigm may think it impossible to effectively administer an interest-free system of banking and finance because of the broad application of the term interest. After all, anything above the amount of the principal could be considered interest, and as such, it might be prohibited under the Shari'ah. This view, however, is overly narrow since it does not take into account the fact that the Islamic system values capital when it is the product of work. It should also be noted that the term 'work' carries a broad connotation and includes the idea of risk, which is fundamental to the effective operation of Islamic banking and finance methods. "To put it differently, investors in the Islamic order have no right to demand a fixed rate of return. No one is entitled to any addition to the principal sum if he does not share in the risks involved." Thus, the basis for Islamic banking and finance transactions is the principal of shared risk allocation.
As a general matter, for both parties in a financial transaction to receive any benefit in addition to the principal amount invested, they must share the risks involved in the transaction. In other words,
"...an Islamic bank should share in the risk with the entrepreneur which is in sharp contrast with the interest-based bank. Islamic banking implies zero rate of interest but not zero rate of return as Islamic banks do not deal in money but deal with money." This general idea of shared risk allocation buttresses the viability of the Islamic economic model, and it gives rise to a number of banking methods that have been employed in an attempt to provide Shari'ah-compliant alternatives to traditional banking. One can better understand such alternative methods by tracing the evolution of Islamic banking from its inception to its present.[16]
Comparative analysis of Islamic and commercial banks
Now, a question arises, that what is the effect of “interest” on capitalism and Islamic banks.
The current financing methods used by Islamic banks are helpful in clarifying many issues that obfuscate the necessary understanding that non-Islamic countries need in order to achieve economic cooperation with the Islamic world. It should be apparent by now that not only are interest-free financial solutions available they are very much successful. However, a comprehensive understanding of Islamic banking and finance would not be complete without a comparative analysis of the two systems. The following comparison between capitalist systems and the Islamic financial system, as they apply to interest, should contribute to this comprehensive understanding of Islamic banking system.
* Differences in the sources of law
The most appropriate starting point for a comparison between the two systems and one that yields a great deal of differences, is an examination of the origin of the law. The sources of law in Islam are fundamentally different from those of most countries that operate under a capitalist paradigm. The legal tradition of the West is wholly dependent upon the individual reasoning of judges, jurists, legal scholars, and the like. For instance, in countries that adopt a common law approach, a particular class of individuals makes the law, and the law evolves based on the opinions of those individuals as applied to particular circumstances. The Shari'ah, however, puts little faith in man's ability to reason, which is evidenced by the fact that governance through individual reasoning is an option only in the last resort.
Another marked difference between the Islamic system and its Western counterpart was evidenced in the relationship between the practice of Islam and economics. Unlike many societies based on a capitalistic paradigm, where economics and religion are distinct entities, Islam cannot and does not separate religion from economics or from any other aspect of society. Islam is not only a religion, but also a system of governance. In fact, concepts in the West, such as separation of church and state in the United States, are in direct opposition to the objectives of Islam. Islam is a religion that permeates every aspect of the life of a Muslim, and countries ruled by the Shari'ah must adhere to this permeation. The Shari'ah is not only a mandate from God on how to live one's life individually, but also is a command on how individuals are to live collectively in a society. It is vital to understand this philosophical divide between the West and the Islamic world. After all, without this basic appreciation of the Islamic worldview, it is impossible to have an actual insight into the system.
* Conceptual Differences of Interest
The next point of comparative analysis is the differences in the conception of interest between the two systems. As previously mentioned, to the capitalist West, a mode of banking and finance absent the concept of interest is a virtual impossibility. In a capitalistic society, the ability for one to reap profit from investment is the most valued concept of economics. This profit is usually in some form of interest. [17] The incentive to invest in a mutual fund, for instance, is that the principal amount of money invested will over time yield a value equal to a certain percentage rate of the initial investment, i.e., interest. Likewise, when a bank loans money to an individual, it does so on the basis that it will receive profit by adding a certain percentage of money to the amount of the initial loan to be repaid which is also an interest.
Indeed, the very entrepreneurial spirit of a capitalist society is wholly dependent on the concept of interest. It would be very difficult to imagine how the United States, a country that epitomizes capitalism, could survive if lending institutions were not given an incentive to make funds available to those who dream of owning their own businesses. In fact, interest is so pivotal a concept to the capitalist system that a mere statement one way or the other regarding the raising or lowering of interest rates by Federal Reserve Chairman Alan Greenspan has the potential of crippling the entire economy.[18] Many Americans have such a significant amount of capital invested in interest-bearing accounts such as stocks, bonds, mutual funds, and savings accounts, that any minor fluctuation in the rates of interest could have an extremely damaging impact. These views of interest are in direct opposition to Islamic fundamentals of banking and finance that strictly prohibit interest. In his book, it illustrates this point by noting that the vast amounts of capital attained by banks from millions of depositors (the small players in the system) are being given to only a small percentage of the population (the big players in the system). [19]
Comparison from a characteristics Prospective:
The significance of these conceptual differences lies in the fact that it is the very differences, which establish the divergence between the two systems and make economic cooperation difficult. A comparison between the two systems that goes beyond conceptualism will show that the differences can be overcome and that economic cooperation between the Islamic system and capitalism is attainable. A useful study that is applicable to the present comparative analysis involves a comparison of characteristics that can be generally found in all economic systems. [20] The eight factors used in the study are (1) the level of economic development of the system, (2) the resource base, (3) the ownership-control of the means of production, (4) the locus of economic power, (5) the motivational system, (6) the organization of economic power, (7) the social process for economic coordination, and (8) the distribution of income and wealth. When the comparison is viewed from this perspective, there are surprisingly few differences. The major differences are in the motivational system, the organization of economic power, and the distribution of income.
This suggests that both systems are oriented towards the attaining of profit, though for different purposes. The capitalist system seeks profit not as a means, but as an end that will satisfy the individual, while the Islamic system uses profit as a means to achieve its spiritual ends. Viewed from this perspective, it seems that this difference is not insurmountable. Indeed, both systems can cooperate very well to achieve a profit. Once they attain profit, they can then use it for their respective different purposes and ends which are contemplated.
Next, the organization of economic power refers to "centralization versus decentralization with regard to government administration." In the capitalist system, this factor is characterized by a vast discretion of individual choice and a highly decentralized government administration. The Islamic system is similar, but it adds restricted areas for the choice of businesses that harm society's interests. After all, "the general objective of Islamic banks is to develop the economy within and according to Islamic principles. In no eventuality, therefore, can such banks engage in the alcoholic beverage trade ..." Again, this difference can be overcome by keeping in mind that cooperation between the two systems in regard to the formation and financing of business must be done by respecting the Islamic societal interests imposed by the Shari'ah. A clear example of a breach of respect would be the case of a business venture between the two systems that either directly or indirectly financed the alcohol trade. This would be a clear violation of the interests of the Islamic society and, as such, the transaction should not happen and therefore it should be avoided.
The third major difference between the two systems is the criterion of distribution of income, which "distinguishes systems according to how people obtain their income (labour, capital) and to the degree of inequality in income, property and/or opportunity.” Distribution of income in the capitalist system is described as "distribution according to market-determined contributions to production, with the possibility of considerable inequality in income and property." The Islamic system is quite different and is characterized by "equitable distribution of income and decentralisation of wealth in the society with recognition of differences in individuals' wealth." Though this presents a significant difference between the two systems, it is evident that the differences only affect intra-system societal administration. In other words, cooperation is possible between the two systems to yield profit (which is desirable in both systems), and then each system can administer or not administer the fate of such profits wholly independent of one another. Hence, this difference should not be a limiting factor regarding the ability of the two systems to transact business.
This form of comparative analysis is useful in diluting the details that arise when examining the issue of cooperation and understanding between entities that are based on opposing systems. The distilled essence of this analysis is that though there are significant differences between the two systems in areas such as the sources of the law, the meaning of interest, the societal objectives involved, and the characteristics of the systems, the divergence is not so significant as to preclude co-existence and cooperation of the two systems in a global economy.[21]
Major Islamic banking institutions
Islamic institutions utilize various mechanisms for mobilizing funds from public, depending on the institution organisation, geographic location, market strategy, capital resources and charter. These include Islamic banks, investment companies and solidarities companies.
* Islamic banks: such banks (al-massarif al islamiya) may accept Islamic current and investment accounts. Current accounts are not remunerated; clients benefit by receiving certain banking services free of charge. Investment account permits client to place funds for selected times and at designated level of risks; clients receive a range of financial services on a charge basis.
* Islamic investment companies: these companies offer the public the opportunity to participate in investment trusts (mudaraba) in the form of participation certificates (sukuks). The net profit is divided into the proportion of 9:1 for the certificate bearers and the company respectively. Ten public mudarbas have been launched over the last three years and have generated substantial profits.
* Islamic solidarity companies: these solidarity trusts (mudarabat al-takatul) offer to the public the Islamic alternative to insurance. The funds mobilized through these instruments are managed in a fashion similar to that of investment companies.
Given two basic conditions- interest free finance and equitable risk sharing – Islamic foundations may engage in number of activities, like musharaka, mudaraba, murabaha, ijarah, ijarah wa iqtina’ which we had already discussed.
The market scope governs (whether local, regional or international) governs the range of activities and types of banking practices that the Islamic institutions actually undertake. An important working rule is that the more sophisticated and internationally oriented the Islamic institutions activity, the more likely is to have to adopt or reinterpret its adherence to traditional Shariah’ principles. If on the other hand, the Islamic banks confine its activities within the local context of Islamic nature, it is more likely to adhere to the rigorous interpretation and implementation of banking activities according to Shariah’.
Even in the local context noted above, there are likely to be market conditions and practices that limit adherence. For example, profit and loss sharing is the guiding principle of Islamic banking, and project financing is the primary medium through which PLS is implemented.
There are 40 Islamic finance institutions currently in operation. Each bank has attempted to satisfy shariah requirements by dividing its operation into the various economic financing arrangements such as murabaha and mudaraba. In addition, the banks are linked to each other by a complex array of partial mutual ownership, project co- financing and Board of director membership. For example, DMI participate in joint ventures with the Faisal Islamic banks of Egypt and Sudan. The Kuwait Finance House enjoys a reciprocal depository arrangements with other financial institutions and has relationship with over 150 correspondents Banks, notably the Dubai Islamic Bank, the Bahrain Islamic bank, the Bahrain Islamic investment company and the Islamic development bank.
In addition to the presence of Islamic banks and finance institutions throughout the Middle East, part of Africa, South and South East Asia and to a very limited extent to Europe, Islamization of entire banking system has taken place in Pakistan and Iran. In such instances, all Banks, irrespective of prior pattern of operation, must correspond to the new regulations governing activities in accordance with Shariah’. The majority of the Islamic institutions were established as cooperative efforts between private businessman and governments. For example, Dubai Islamic bank is 10 percent by its private founders, 20 percent by the government of Dubai, and 10 percent by the government of Kuwait. The rest of the Equity is controlled by general shareholders.
In general, there is no great variation in the composition of Islamic banks portfolios. The main investment for most is in real estate; trade promotion and industrial product import financing forms in the next largest portfolio component.[22]
Islamic banking and its spread on world economy
* The Spread of Islamic Banking
The first modern Islamic banking institutions were farmer credit unions in Pakistan in the 1950s, and the Mit Ghamr Savings Bank, a small rural institution founded in Egypt in 1963. The latter was modelled on the German local savings banks, which had impressed Ahmad al Najjar, the bank's founder. Influential elements in Nasser's political party, the Arab Social Union, and some of the senior managers in the country's nationalised banks disliked al Najjar's initiative, and the Islamic nature of the institution. In 1971, it was incorporated into a new government-controlled institution, the Nasser Social Bank, which had responsibility for the collection of zakat, the Islamic wealth tax. Many saw this new institution as a state agency rather than a bank.
The major expansion in Islamic banking came in the 1970s with the establishment of the Dubai Islamic Bank in 1975, the Faisal Islamic Banks in Egypt and the Sudan in 1977, the Kuwait Finance House the same year, the Jordan Islamic Bank in 1978 and the Bahrain Islamic Bank in 1979.[23] The impetus was partly the oil revenue boom in the Gulf and the growing economic muscle of the more conservative Muslim states of the Gulf at the expense of the more secular Arab nationalist movement. There was in any case a growing dissatisfaction with Arab socialism, especially among the young, and a feeling that there should be a greater emphasis on Islamic values in all spheres, including the economic and financial.
* Current role of Islamic banking and its internalisation :
Gulf business interests strongly supported the new Islamic banking movement. Prince Mohammed bin Faisal of Saudi Arabia was the instigator of the Faisal Islamic Banks. Sheikh Saleh Kamel's Dallah group based in Jeddah aided the Jordan Islamic Bank and funded the Albaraka Islamic Banks which spread from Turkey to Tunisia, and even to London. The al Rajhi money-changing group applied for an Islamic banking licence in Saudi Arabia, and offered Islamic financial services internationally through their London-based investment company. Prince Mohammed founded Dar al Mal al Islami, the house of Islamic funds, as an international financing institution based in Geneva.[24]
The new Islamic banks had to compete with the conventional riba-based banks in most Mu
sabaha khan
Author is a student of LLM(Iyear) in National law School, BAngalore.
Read more...
