Islamic Banking Transformation Challenges
Islamic Banking Transformation Challenges
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INTRODUCTION
The legal aspect of any banking system includes both regulatory and legislative
frameworks. The said frameworks work together to ensure fair and equitable system in
terms of practicality. When considering Islamic law and its application to an existing
banking system, consideration towards Shariah law is essential because it lays the
foundations upon which Islamic principles can be applied to any aspect of life. This
framework is further given another challenge to overcome which is the implementation
of a financal system without interest; the fundamental operating core of all conventional
finance transactions. All these aspects are the basis of the growing debate regarding
functioning of Islamic banking (IB) in conventional frameworks.
Moving forward, when the implementation of a system of IB arises, the legal
Muslim countries. Now the Islamic banking is expanded to almost all major Muslim and
non-Muslim countries (Halabi, 2000).
standard setter for supervision and regulation of IFIs (El Razik, 2009). Its main aim is to
provide a platform to support true practices of Shariah compliant financial instruments
used in money markets, capital markets and banking industry (Mawdudi, 1986; Merton,
1995). The IFSB works for the emergence of a transparent and sound Islamic financial
services industry based on principles of Shariah keeping in view today's challenges
(Commission, 2007; Warde, 2010). The IFSB itself is of the view that stand alone Legal
framework is best suited for the effective implementation of Islamic financial system
across various jurisdictions (Rammal & Parker 2013; Chami, et al. 2003).
In Indonesia, IB was formally recognized in 1983 and the first full-fledged Bank
Syariah started in 1991. The Shariah aspect in each Islamic financial institution is
supervised by its in house Shariah supervisory board whereas prudential regulations are
devised by “Bank Indonesia” in a manner very similar to conventional banking
(Lindsey, 2012). Besides, “National Shariah Board of the Ulama Council of Indonesia”
deals with religious aspect through Fatawas. This Board is responsible for overseeing
doctrinal compliance by Islamic financial institutions (IFIs). Islamic financial disputes
are settled through “National Shariah Arbitration Body”.
Research Question
“Why is there a need to develop a robust and comprehensive framework for IFIs in
Muslim countries of Far East which should be acceptable to all stakeholders and can be
replicated in other economies?”
The main objective of this paper shall be on delineation of comprehensive framework
specifically for Far Eastern Muslim countries. Although a number of research
publications in the Islamic world as well in the Western world deals, directly or
indirectly, with general framework for IB but by and large these publications are silent
on the development of country specific comprehensive frameworks acceptable to all
stakeholders within that country.
METHODOLOGY
Business transformation comprises of fundamental changes in how business is
conducted to handle the altering market environment. The need for transformation
arises due to a myriad of external factors, obsolete product and service offering, changes
in income streams, rise of new regulations, and increase in intensity of market
competition to mention a few.
Transformation of conventional financial system to Islamic financial system is a new
phenomenon so needs investigation. A new investigation often starts with qualitative
studies exploring new phenomena (Blumberg, 2005) so the research approach will be
exploratory in nature to obtain deeper understanding about various dimensions of
problems and issues being faced by these countries and the need to develop a
comprehensive framework required for Islamic finance. The references used in the
literature review cover for three facets of the discussion based on existing but partial
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Abdul Rafay and Ramla Sadiq
studies- awareness of IB, schools of thought and legal frameworks. Each paper reflects
research of IB in an area of development that can be operationalized for future research.
For this paper the exploratory study is based on literature review only however in future
various other methods may be used.
Delimitations
This paper is focused only on the challenges being faced by Muslim countries of Far
East due to non-existence of comprehensive frameworks and therefore issues of
secondary importance are not discussed. In addition, this area encompasses a second
wave of the concentration of development in Islamic finance. The convergence of
frameworks as applied in this area will contribute significantly to future development.
Multiple common problems are identified during this study of which only three that are
considered more important are elaborated over here. Although the challenge is
universal, this research shall cover the issues of Far eastern Muslim countries only. Far
East includes three Muslim countries: Malaysia, Indonesia and Brunei. Due to
insignificant presence of Islamic financial sector in Brunei, only Malaysia and
Indonesia are considered for this paper.
LITERATURE REVIEW
To date the dream to transform the whole economic system of Far eastern Muslim
countries to an interest free Islamic financial system could not translate into reality
because of the conversion of the system without creating the necessary and
comprehensive framework, infrastructure and human capital. Today IFIs of Muslim
countries of Far East are confronted by many difficulties and are facing various
challenges that limit their operations to move forward. This article aims to discuss those
problems and issues and to highlight the need to develop a sound, robust and
comprehensive regulatory framework that would prove helpful to solve them.
ownership agreement of an asset. The portion of financier (Islamic bank) is divided into
a number of pieces known as units. The client purchases those units step by step thus
increasing his own share. After the purchase of all units of financier, the client becomes
the owner of the asset. Islamic scholars are unanimous on the validity of this transaction
because the ultimate result is full ownership. The financier charges rent from the client
which is also permissible. However lease of undivided share to a third party is pint of
contention between Muslim jurists. Imam Shafi and Imam Malik are of the view that the
undivided share can be leased out to third party whereas Imam Abu Hanifa hold that the
undivided share cannot be leased out to a third party.
The Shariah boards of Indonesia and Malaysia is currently working to develop a draft
framework for common rules and regulations of Diminishing Musharakah (and few
other products) acceptable to all Islamic school of thoughts.
Legal Framework
Over the last 30 years in general, and the last decade in particular, the development and
progress of Islamic finance cannot be ignored. This development is accompanied with
challenges and opportunities to various stakeholders involved in this system.
Supervisory authorities and industry face significant regulatory challenges that must be
overcome to make the environment more favorable for this infantile industry (Ibrahim,
2007; Belouafi & Belabes, 2010). Analyzing the legal aspects of structure and
methodology, it was found that legal impediments were the most considerable hurdle in
implementation of an IB system (Aldohni, 2011).
An appropriate framework which can be applied universally, across geographies and
schools of thought would allow the IFIs to expand. The convergence of Islamic theory
and practice is necessary for stable expansion and universal acceptance, especially
among Muslim populations. Dusuki and Bouheraoua (2011) stress the fundamentals of
Maqasid al-Shariah and their role in contributing to resolve various Islamic finance
issues and challenges. In addition, particular attention to the Maqasid al-Shariah will
lead to rational and realistic solutions to the problems that are arising due to different
legal frameworks (Asmat, 2014).
Previous researches analyze the regulatory frameworks of various economies that have
implemented either a partial or complete Islamic system. This can be divided into two
categories, specific issues and general issues. Siddiqi (2004) analyzes various regularly
practices by IFIs. He examines how IFIs deal with delays in payment of debts resulting
from murabaha, permissibility of securitization, sale of debts resulting from murabaha
and other credit transactions. His analysis utilizes the central debate where classical
theory is very clear against charging penal interest in case of defaults. In practice,
however, it is largely acceptable to apply such charges so long as these do not contribute
towards the bottom line profits of the company. Rather these should be utilized for
charitable causes, leading to the welfare of society.
At present, in Muslim countries of Far East, most of the aspects of Islamic finance are
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Problems And Issues In Transformation...
growing without proper legal cover with some exceptions. Initially their commercial
laws were developed primarily to protect the creditor (banker) and to date enough
changes are not made to make them compatible with Islamic finance framework. No
fundamental changes are made in Contract Laws, Sales of Goods Act, Mortgages and
Pledges etc. Using similar laws for Islamic financial and commercial activities
technically indicates that the relationship between the creditor (lender) and debtor
(borrower) is unchanged. Presumptions exist that whenever there is a conflict between
the Islamic finance framework and the existing law, the latter will prevail. Adjudication
of recovery of bank receivables is presently interest-based that is haram in Islamic
finance. Transaction costs and financial risks are considerably high for IFIs. No
alternate mechanism was developed and provided for in the law to cater the need of
those IFIs which develop real and genuine market links with suppliers and marketing
agencies. Besides no regulations exist for Islamic financial products specifically for
oppressed and vulnerable sections of society including pensioners, orphans and widows
etc who are mostly dependant on fixed income.
During the last few years, there is a positive trend of development of Shariah
governance systems in IFIs which could facilitate implementation across systems
(Hasan, 2009). Although some standardized legal frameworks are developed by
Accounting and Auditing Organization for Islamic Financial Institutions (AAOIFI),
still many of them are vague and sometimes are incompatible with International
Financial Reporting Standards (IFRS) and Basel guidelines of Bank for International
Settlements (BIS). Besides, there is no clarity about formats and disclosure
requirements in Financial Statements of Islamic Banks. Governments of these countries
are the biggest borrowers but Islamic instruments to finance public debts are not
available.
DISCUSSION
There are three aspects of any legal framework include laws empowering and governing
the regulator, the rules for regulation of various sectors, and the broader legal
framework underpinning the payment system, government debt management and other
infrastructure elements (IMF, 2005). When considering these three aspects, the
suggestions regarding formulating a comprehensive framework can be considered as
follows:
The incompatibility among the standards and regulations set by AAIOFI, IFRS and
BIS is a significant hurdle. When financial institutions do not have a clear and
cohesive format regarding disclosures and requirements, then standardized
application becomes unfeasible. The impracticality of this hurdle is preposterous
and it must be dealt with immediately.
Regulatory laws specifically include the regulation of product structure. When
evolution of the products is essential to ensure the continuous alignment of offering
and demand, regulations should set a time when each product should be revised and
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Abdul Rafay and Ramla Sadiq
CONCLUSION
Islamic finance is neither religion based nor for a specific community. Since mid 20th
century Islamic finance is experiencing a revival because of the struggle of the Muslims
to regain independence from colonial masters and that now has been spread in every
nook and corner of world with zeal and zest. It has gone beyond the boundaries of
Islamic world to almost all global financial markets. The importance of Islamic finance
remains not only within Islamic communities, but internationally due to a rising
awareness of the problems prevalent in conventional banking and a growing interest in
Islamic finance. Leading IFIs spread their networks across all continents and create far
reaching impacts in world economies.
Transformation of one business model to another business model occurs due to the
failure to meet particular demands of stakeholders. There is a dire need to develop
comprehensive framework for IFIs for smooth transformation. Islamic finance exists
within the basic tenet of a capitalist economy, utilizing the existing system to achieve its
principal function – to provide a financial system that is asset backed and free of interest.
The focal point is that the economic activities under Islamic Financial System are
governed by the fundamental injunctions of Shariah and not by the human desires and
experiences. The ultimate objective of Shariah is to achieve Falah (prosperity) and to
seek the pleasure of Allah (swt).
The development of such a framework will guide future research by addressing existing
problems in the fragmented framework. Once these problems have been addressed, and
laws are fine tuned to meet the requirements outlined, it will become relatively easier to
adopt Islamic finance principles and implement relevant legislation. This will further
aid the smooth and manageable transformation from conventional banking system to
Islamic banking system.
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TABLES
Table : Islamic Schools of Thought
School of thought Headed by
HANAFI Imam al-Nu΄man ibn Thabit (Abu Hanifa) [80AH-180AH]
MAALKI Imam Malik ibn Anas al-Asbahi [93AH-179AH]
SHAAFI’I Imam Muhammad ibn Idris al-Shafi΄i [150AH-198AH]
HANBALI Imam Ahmad ibn Hanbal [164AH-241AH]
JAAFARI Imam Ja'far ibn Muhammad al-Sadiq [83AH-148AH]
Mr. Abdul Rafay is a practitioner cum academician. For more than 25 years, Mr. Rafay has
been working as a freelance advisor, consultant & trainer to a wide variety of public &
private sector national and multinational companies in the areas of Corporate Finance,
Financial Policy & Implementation, Auditing & Assurance, Accountancy, Corporate Tax
Management, Financial Technology and System Consultancy. He has been providing
consultancy to various industries including Textile, Auto Assembling, Footwear,
Industrial/Agro Chemicals, Ice Cream/Dairies, Glass/Ceramics, Healthcare,
Mining/Natural Resources, Packaging/Paper Sacking, Steel/Pipe Casting, Rice Processing,
Brokerage/Co-operative Financing, Software Development, Real Estate,
Printing/Publishing, and Construction/Civil Engineering etc.
Mr. Rafay is a Fellow member of the Institute of Chartered Accountants of Pakistan. He is
also member of various national and international professional bodies. Since 2001, he has
been a life time member of Lahore Tax Bar Association. He has served as Co-regional
Director (Founding) of Lahore-Islamabad Chapter of Professional Risk Managers
International Association (PRMIA), Washington, USA (2011-2013). In 2012, he was
nominated as Member: Education & Training Committee (ETCOM) of The Institute of
Chartered Accountants of Pakistan (ICAP). He is also a member of ICAP’s “Islamic Finance
working group” which is closely in liaison with State Bank of Pakistan and other
stakeholders for Islamic Finance Accounting and Auditing Standards. He is Alumnus of
Rausing Executive Development Center (REDC), Lahore University of Management Sciences
(LUMS), Pakistan.
In 2014, International Finance Corporation (World Bank Group) selected him for Training
of Trainers (ToT) for Corporate Governance Action Planning for SMEs. He is also an
approved trainer for Institute of Financial Markets of Pakistan (IFMP) established by
Securities and Exchange Commission of Pakistan, the corporate regulator. In 2013, his name
got included in the list of "Certified Directors" as per Clause (xi) of The Code of Corporate
Governance 2012 issued by SECP.
Since 1994, Mr. Rafay has also been associated with teaching in some of the top business
schools of Pakistan. His specialized subjects of interest include: Strategic Corporate Finance,
Financial Derivatives, Investments/Portfolio Analysis, International Financial Reporting
Standards, Corporate Restructuring (Mergers & Acquisitions), Financial Statement Analysis
& Corporate Taxation. He also served as an instructor in Civil Services Academy, Pakistan
to train the CSS Officers selected by Federal Public Service Commission of Pakistan (FPSC).
Currently he is a Professor of Finance & Accounting in University of Management &
Technology, Pakistan.
He has published more than two dozen research papers in SSCI, ESCI and Scopus indexed
journals published by reputed global publishers including Emerald, Sage, Taylor & Francis
and IGI Global. He contributed multiple chapters in Books edited by International Editors.
Since 2019, he edited multiple international books on FinTech, Islamic Finance and financial
Crimes published by IGI Global, USA.
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