BLOG OF KNOWLEDGE (Shari'ah, Law, Islamic Finance and Muslim News)
Shari'ah, Law, Islamic Finance and Muslim News
Monthly Archives: February 2010
February 26, 2010
DR. ZULKIFLI HASAN
First UK Sukuk
Hospital poised for first UK sukuk issuance

Available at:
http://uk.reuters.com/article/idUKTRE61O3NI20100225
By Cecilia Valente
LONDON (Reuters) – A London-based private healthcare organisation is set to issue the first-ever Islamic bond in Britain next month, a transaction that would strengthen the UK’s credentials as a centre for Islamic finance. The firm is looking to raise around 50 million pounds through an Ijarah sukuk as part of a wider project to raise up to 85 million pounds, the lead arranger, Liquidity Management House, told Reuters.
“We are targeting it as a private placing at the beginning and then it will be listed,” said Emad Al Monayea, managing director of Liquidity Management House, a subsidiary of Kuwait Finance House K.S.C. Al Monayea declined to say who the issuer was.
Ijarah sukuk give investors ownership of a tangible asset pledged by the issuer and tied to a lease contract. Returns come in the shape of rental streams paid on the asset. Al Monayea said the sukuk would be launched as soon as British tax authorities give it the go-ahead. The process is expected to be completed by the end of March, ending negotiations that lasted “a long time,” he said.
Al Monayea said a “soft” road show had already taken place and he expected the issue to attract investors globally, though mainly from the Middle East. London has earlier hosted sukuk listings but there has hitherto been no issuance. Last month the British government announced its latest initiative to remove the final technical obstacles to facilitate Islamic bonds in Britain. Supermarket chain Tesco issued a sukuk in 2008 in Malaysia to fund a local super store.
Inflation is bringing us true democracy. For the first time in history, luxuries and necessities are selling at the same price.” Robert Orben
Regards

ZULKIFLI HASAN

DURHAM, UK
With Dr. Humayon Dar, CEO BMB Islamic.
Islamic finance news
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February 23, 2010
DR. ZULKIFLI HASAN
Literatures on the History of the Prophet SAW
MENELUSURI LITERATUR SIRAH RASULULLAH SAW
Isu perarakan sambutan Maulidur Rasul telah mendapat liputan meluas di media massa Malaysia mutakhir ini. Berikutan itu, pelbagai pendapat dan pandangan dilontarkan oleh cendiakawan, agamawan termasuk ahli politik. Dalam kekalutan ini, penulis memilih pendekatan sederhana untuk bersama-sama Imam Jalaluddin Sayuti, Sayid Ahmad bin Zaini Dahlan, Syeikh Yusuf Qaradawi dan fuqaha yang lain untuk mengharuskan sambutan Maulidur Rasul dengan syarat ianya tidak mencampur adukkan perkara yang dilarang oleh Islam.
Namun harus diingat, pada masa umat Islam beriya-beriya untuk menjayakan sambutan Maulidur Rasul, sememangnya tidak dapat dinafikan bahawa masih ramai yang tidak mengenali Rasulullah SAW sama ada dari aspek pemikiran, peribadi, akhlak, pendekatan dan keseluruhan cara hidup baginda. Penulis mengambil kesempatan ini untuk berkongsi sedikit pengetahuan untuk membicarakan literatur mengenai Sirah Rasulullah SAW dengan harapan ianya akan dapat menjadi panduan dan rujukan selepas ini.
Merujuk kepada sejarah penulisan Sirah Rasulullah SAW, ianya telah pun dimulakan oleh para sahabat seperti Abu Rafi Mawla yang telah menulis tentang sifat solat dan ibadah baginda. Ini termasuk Sahl b. Abi Hathmah al-Madani al-‘Ansari dan  ‘Abd Allah b. ‘Amru b. al-‘As b. Wa’il b. Hashim. Penulisan sirah Rasulullah SAW secara sistematik telah dimulakan oleh para Muhaddithun yang juga ahli sejarah seperti Sa`id b. al-Musayyib al-Makhzumi, ‘Urwah b. al-Zubayr b. al-‘Awwam and Abu Fadalah ‘Abd Allah b. Ka’b b. Malik al-Ansari.
Penulisan sirah Rasulullah SAW kemudiannya kian popular ketika zaman Muhammad b. Ishaq yang telah menulis kitab Kitab al-Mubtada’ wa al-Mab`ath wa al-Maghazi iaitu buku yang membincangkan secara terperinci kehidupan baginda bermula kelahiran hingga kewafatan. Ini diikuti oleh Muhammad b. ‘Umar al-Waqidi yang menulis Kitab Azwaj al-Nabiyy, Kitab al-Tarikh wa al-Maghazi wa al-Mab`ath and Kitab Wafat al-Nabiyy and Kitab al-Maghazi. Kitab Sirah yang menjadi rujukan utama hingga kini telah ditulis oleh ‘Abd al-Malik b. Hisham melalui karyanya yang masyhur iaitu Kitab al-Sirah al-Nabawiyyah.
Kitab-kitab sirah di atas walaubagaimanapun ditulis di dalam bahasa Arab dan mungkin ini menimbulkan kesulitan sesetengah pihak untuk memahami dan merujuk isi kandungannya. Ini sebenarnya tidak menjadi halangan bagi tujuan untuk memahami kehidupan Rasulullah SAW kerana terdapat banyak buku-buku kontemporari yang ditulis oleh sejarawan Islam mahupun dalam bentuk terjemahan. Sebagai contoh buku “Life of the Prophet Muhammad: Al-Sira Al-Nabawiyya” oleh Ibn Kathir dan juga “The Life of Muhammad: A Translation of Ibn Ishaq: Sirat Rasul Allah” telah diterjemahkan ke dalam bahasa Inggeris yang boleh dijadikan sebagai rujukan.
Selain daripada itu, buku-buku lain yang boleh dirujuk adalah seperti “Prophet Muḣammad and His mission” oleh S. Athar Husain, “Muhammad, the messenger of Islam: His Life and Prophecy” oleh Hajjah Amina Adil, “Mohammed and the Rise of Islam” oleh D. S. Margoliouth, “The Great Prophet a Short Life of the Founder of Islam” oleh F. K. Khan Durrani, “The Messenger of God Muhammad: An Analysis of the Prophet’s life” oleh M. Fethullah Gulen, “Prophet Muhammad(s) and His Family: A Sociological Perspective” oleh Shamim Aleem, “The Prophet Muhammad: A Biography” oleh  Barnaby Rogerson, “Muhammad: Prophet and Statesman” oleh William Montgomery Watt, “Muhammad: Prophet for Our Time (Eminent Lives)” and “Muhammad: Western Attempt to Understand Islam” oleh Karen Armstrong, “The Sealed Nectar (Ar-Raheeq Al-Makhtum)” oleh S. al-Mubarakpuri, “Muhammad: His Life Based on the Earliest Sources” oleh Martin Lings, “Introducing Muhammad” oleh Ziauddin Sardar dan “Prophet Muhammad and His Miracles” oleh Bediuzzaman Said Nursi. Di samping itu, terdapat juga koleksi rujukan dalam bentuk cakera padat seperti “The Life of the Last Prophet”, sebuah audio biografi oleh Yusuf Islam.
Kesemua koleksi sirah Rasulullah SAW di atas diterbitkan dalam bahasa Inggeris dan faktor ini boleh menjadi penghalang sesetengah individu untuk memahami buku-buku tersebut. Sebenarnya terdapat buku-buku dalam bahasa melayu telah diterbitkan seperti “Biografi Muhammad bin Abdullah” oleh Zulkifli Mohd Yusoff dan Noor Naemah Abdul Rahman termasuk buku terjemahan seperti Fiqh al-Sirah oleh Muhammad Sa’id Ramadan al-Buti, “Sejarah kehidupan Nabi Muhammad” oleh Muhammad Hussein Haykal dan “Sirah Nabi Muhammad SAW: Pengajaran dan Pedoman” oleh Mustafa as-Shibaie. Berdasarkan senarai rujukan tertera di atas, penulis menganjurkan agar setiap umat Islam untuk memiliki sekurang-kurangnya senaskhah sirah Rasulullah SAW sebagai koleksi peribadi.
Memahami dan meneladani Rasulullah SAW merupakan suatu kewajipan bagi semua umat Islam. Perkara ini tidak akan dapat dicapai melainkan melalui proses pencarian ilmu. Dalam aspek ini, sememangnya kita telah disajikan dengan pelbagai koleksi rujukan mengenai kehidupan Rasulullah SAW. Hanya tinggal kini ialah kemahuan, keazaman, keiltizaman diri untuk belajar memahami dan meneladani seterusnya mendidik jiwa dan rohani untuk mengasihi Rasulullah SAW.
Solawat dan Salam ke atas junjungan Rasulullah SAW
ZULKIFLI HASAN

DURHAM, UK
Muscat, Oman
My Thought
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February 21, 2010
DR. ZULKIFLI HASAN
Fiqh Al Jihad by Sheikh Al Qaradawi
What is New about Al-Qaradawi’s Fiqh of Jihad? By  Rashid Al-Ghannoushi
Available at:
http://www.islamonline.net/servlet/Satellite?c=Article_C&cid=1252188303047&pagename=Zone-English-Living_Shariah%2FLSELayout
The importance of this topic is due to its focus on the most critical concept in contemporary Islamic thought – that of Jihad, which occupies an important position in the edifice of Islam. Jihad is “the summit of Islam and its pinnacle” according to the hadith, and is the subject of widely divergent views and stances from within and outside Islam, views which have serious consequences for international relations, in view of Islam’s growing role internationally. Those views, moreover, have an effect on relations between Muslims themselves, with their governments, and with non-Muslims, in view of the awakening witnessed across the Muslim world, both at the level of faith and the level of practice. This has led to a greater connection between Islam as a religion (creed, rituals, morals) and an ideology of great influence on the thought and behaviour of Muslims, socially and politically, or what is known as “political Islam”, in which jihad occupies a central position in one way or another.
This paper owes its importance to the position of the figure whose views on this crucial concept it attempts to present – that is Sheikh Yusuf al-Qaradawi, who occupies an important position in contemporary Islam, as testified by his role at various levels: at the intellectual level, his writings have exceeded 150 works, covering all aspects of Islamic thought. In addition to his membership of the major intellectual and juristic councils, he was elected President of the International Union of Muslim Scholars, as well as being the chairman of the European Council for Fatwa and Research and a number of charity organisations, and a member of various Islamic Studies academic committees, including the Oxford Centre for Islamic Studies. As for “political Islam”, he grew up inside one of its groups, the “Muslim Brotherhood”, occupying leading positions within it. He is also a rising star in the world of modern media, through his patronage of the most important Muslim website Islam-online, and through his famous weekly programme on Aljazeera channel “Shari’ah and Life” which is followed weekly by over 60 million viewers.
Al-Qaradawi has developed a principal theory in contemporary Islam, from which all his views and stances emanate, and to which he tirelessly calls, widening its appeal and marginalising its opponents – that is the principle of Islamic Wasatiyya or moderation. This was inspired by the verse in the second chapter of the Qur’an, “And thus we made you into a middle (wasat) nation”. Thus, he presents Islam as the middle position between opposing and conflicting rigid positions; as the middle ground that brings all together, a middle position between materialism and spiritualism, between individualism and collectivism, between idealism and realism, etc. Starting from this wasati viewpoint, he presents all his ijtihads in all aspects of Islamic thought, including his ijtihad on the question of jihad, as revealed in his latest book “The Fiqh of Jihad: A Comparative Study of its Rulings and Philosophy in Light of the Qur’an and Sunnah”. This study was described by its author as one which “took several years of continuous work, and occupied his thought for decades”. The fruits of this work are presented in a momentous book of two volumes, in which he puts forward, from the wasati perspective, his views on this critical issue, elaborating his theory on jihad, which he hopes will contribute towards forming consensus on this grave matter.  The book springs from the conviction that “it is dangerous and wrong to misunderstand jihad, to shed inviolate blood in its name, to violate property and lives and to taint Muslims and Islam with violence and terrorism, while Islam is completely innocent of such an accusation. However, our problem in such grave matters is that the truth gets lost between the two extremes of exaggeration and laxity.”
Our exposition of this momentous work will focus on clarifying the general view of jihad in Islam according to Sheikh Qaradawi based on the Qur’an and the Sunnah and their interaction with the tafsir and fiqh heritage as seen in the historical contexts in which it emerged, and through the current state of the Muslim Ummah as it is engaged in major conflicts with the forces of despotism or with external forces, under the current power balances, a modern culture that glorifies the value of freedom, and an international law that recognises state sovereignty and limits legitimate war to self-defence. Within these contexts, Al-Qaradawi’s view of jihad was formed. What we wish to explore is not its details, but the general picture – what is novel in it, particularly in relation to major questions, such as jihad’s relation to freedom, and to relations between Muslims and others, whether it is inside or outside Muslim societies. So, what are the foundations of this methodology? What is jihad? What are its forms? What are its goals? Defensive or preemptive? Between Dar al-Islam and Dar al-Kufr? What are the rulings regarding captives in Islam? Is there jihad within the Ummah? Where is jihad in the Ummah’s current causes?
Issues of Methodology
In the introduction, the author defined the foundations for his study thus:
1. Relying on the Qur’an as the absolutely authentic text which serves as the criterion for other sources including the Prophetic Sunnah. It is to be understood using the logic of its original language, Arabic, without forcing meaning onto the text, and on the basis that all its verses were revealed to be applied, “thus we questioned at length the claim of those who say that there is a verse in the Qur’an, which they called Ayat al-Sayf (the verse of the sword), which has allegedly abrogated one hundred and forty verses or more, although they differed over which verse that is”. The author almost entirely invalidates the principle of abrogation in the Qur’an, depriving the extremists of a sharp weapon with which they have disabled hundreds of verses promoting kindness, forgiveness, dealing with non-Muslims with wisdom and beautiful preaching and distinguishing between a hostile unjust minority amongst non-Muslims with which defensive jihad can be used, and a peaceful majority towards which justice and kindness are due.

   2. Relying on authentic Sunnah which does not contradict stronger evidence, such as the Qur’an. Thus the author judges as weak sayings such as “I was sent with the sword” and others, using the tools of the science of Hadith. He also interprets an authentic hadith which commands fighting against people until they say “there is no God but Allah”, by taking the generic word “people” as being used to mean a specific group, that is the hostile Arab polytheists.

   3. Benefiting from the rich heritage of fiqh, without bias towards a particular school, and without restricting oneself to the well-known schools, basing himself on the methods of comparative law, analysis, critique and selecting the most suitable opinion. He distinguishes between Fiqh and Shari’ah: the latter being of divine origin, and the former the product of intellectual effort to deduce the rulings of Shari’ah. True fiqh is not what is copied from books, but rather the jurist’s own ijtihad (intellectual exertion) to produce something suitable for his specific time and place, particularly as in our time, major changes have taken place.

   4. We can live, under Islam, in a world that promotes peace and security rather than fear, tolerance rather than fundamentalism, love rather than hatred. Using the method of comparison between Islam and other religions and legal systems.

   5. Relating fiqh to the current reality: The Muslim faqih (jurist) when speaking about jihad must realise the fixed principles in this matter, such as the law of tadaafu` (mutual checking), the obligation to prepare all possible sources of power to ward off the enemies, and to fight against those who initiate fighting against the Muslims, the prohibition of transgression, etc. There are, however, other matters that have emerged (considered mutaghayyirat, or changing factors), such as condemnation of war, seeking peace, and the emergence of international law, human rights conventions, the United Nations, and the sovereignty of states. In this respect, the author affirms that “we can live, under Islam, in a world that promotes peace and security rather than fear, tolerance rather than fundamentalism, love rather than hatred. We can live with the United Nations, international law, human rights conventions and environmentalist groups. In truth, our main problem with our rigid brothers, who have closed all doors and insisted on a single viewpoint, is that they live in the past and not the present, in books rather than reality”.

   6. Adopting the methodology of wasatiyya (moderation) in da’wah (preaching), teaching, ifta’ (issuing legal edicts), research, reform and revival. Among the principles of this methodology in fiqh is to revive religion from within, through new ijtihads for our time, just as our previous scholars did for their time, through understanding secondary texts in the light of primary objectives, being firm when it comes to usool (fundamentals) and flexible in furu` (secondary matters), seeking wisdom whatever its source, and balancing between contemporary changes and Shari’ah fundamentals.

   7. While studying “Fiqh al-Jihad”, one can easily perceive its author’s care not to present himself as the sole proponent of the above views amongst jurists. Instead he is very keen to refer to supporting views amongst old and contemporary scholars, even if such views were neglected or ignored, removing the dust that had collected and shedding light on them, presenting them in a more attractive appearance, and thus giving them new life. He is also careful to support his views with relevant values and expertise from modern culture, benefiting from his profound knowledge of the sources of Islamic culture and his familiarity with modern culture. Thus he constructs a new, coherent, well-rooted yet contemporary view of Islamic jihad, one which shares a wide common space with contemporary culture in relation to war and peace. What is new in this view is not the details, for its parts are scattered and buried deep inside books, but rather the whole picture, making this work a meeting point and a point of consensus, wherein all – or most – parties can find something familiar that facilitates their acceptance of what is unfamiliar. This ability to build consensus is a traditional characteristic of the great scholars. Thus the author does not exaggerate when describing the dire need among jurists, lawyers, Islamists, historians, Orientalists, diplomats, politicians, military men, and the educated masses for such a study.
The Essence of Jihad and its Forms
No Islamic concept has been the target of a continuous flow of attacks, and has brought a constant flow of attacks to Islam and Muslims, as much as that of jihad. It has fallen into the two extremes of exaggeration and laxity. The latter is promoted by a group that wants to abolish jihad from the life of the Ummah, spreading the spirit of submission and surrender, under the guise of various calls such as tolerance and peace, described by the author as “agents of colonialism whose hostility to jihad is such that it has gone as far as creating groups which fabricated an Islam without jihad, and devoted themselves to promoting it, such as Baha’is and Qadianis… At the other extreme, there is another group that makes of the concept of jihad a raging war it wages against the whole world, taking the natural state of things in relation to non-Muslims to be that of war, and regarding all people as enemies of Muslims, as long as they are not Muslim”. This latter group may agree with those Orientalists who define jihad, as in the encyclopaedia of Islam as “spreading Islam by the sword, an individual duty upon all Muslims, such that it is almost a sixth pillar of Islam” (Encyclopaedia of Islam, Arabic Translation, p. 2778).
The word jihad is much wider than just fighting
The author tackles this extremism on both sides, through the linguistic analysis of the word jihad, which essentially means exerting oneself, making an effort, and through its occurrence in the Qur’an and Sunnah and its use by Muslim jurists. He concludes that there is a clear distinction between jihad and qital (fighting), as the command to engage in jihad was revealed in Makkah where there was no fighting, but rather jihad of da’wah (preaching) through the Qur’an, ( And strive against them with the utmost endeavour with it (the Qur’an))  (Al-Furqan 25:52) (p. 50-52). The word is also used in the Qur’an and Sunnah with various meanings, including exerting oneself in resisting the enemy, resisting the devil, resisting one’s desires, etc. Thus the word jihad is much wider than just fighting, for jihad, as the author quotes from Ibn Taymiyya, “can be with the heart, by calling to Islam, by countering invalid arguments, by advising or facilitating what is beneficial to Muslims, or by one’s body, that is fighting”.
The author further seeks support from a fourteenth century scholar, the eminent Ibn al-Qayyim, student of Ibn Taymiyya, in order to clarify the vast scope of jihad, which makes every Muslim a mujahid – but not a muqatil (fighter) by necessity. Ibn al-Qayyim concluded from his study of the process of Islamic da’wah that there are 13 levels of jihad: first, jihad al-nafs (jihad of the self) which comprises 4 levels, exerting oneself to learn the guidance, to act upon it, to call to it, and to persevere on those actions; second, jihad against shaytan, which includes 2 levels, struggling against the doubts in one’s faith which Satan instigates, and resisting the desires and corruption to which he calls; third, jihad against the non-believers and hypocrites, including 4 levels: with one’s heart, tongue, wealth, and self; and fourth, jihad against the oppressors and the corrupt, comprising 3 levels: with one’s hand if possible, if not then with one’s tongue, if not then with one’s heart. The author differs in regarding jihad against oppression and corruption as preceding jihad against disbelief and external transgression, while stressing that peaceful confrontation is to be adopted against oppressors “profiting from the reasonable forms which others have developed in confronting unjust rulers, such as elected parliaments, parties, and the separation of powers” (p. 198).
The author also stresses the importance of intellectual and cultural jihad “through the establishment of specialist Islamic academic centres, catering for exceptional youth – academically and morally – in order to prepare them academically and intellectually in a methodology that unites our heritage and modern culture… We do not call for isolation from the rest of the world, but rather to cultural and civilisational interaction. We choose what to take or leave based on our own philosophy and criteria, just as they had borrowed from us in the past concepts and inventions which they then developed and used to build their civilisation. What we take will be imbued with our own spirit, character and moral heritage such that it becomes a part of our intellectual and moral system, losing its original character” (p. 190-192).
Islam is a call to peace; it abhors war, but cannot prevent it, hence it prepares for it, but does not wage it unless it is forced upon it. The author concludes in his study of the fiqh of jihad in Islam that there are two types of jihad: civil and military – meaning fighting against enemies who attack Muslims, which necessitates preparing for it when there is a need; this type is a matter for states. Spiritual civil jihad “encompasses the academic, scientific, cultural, social, economic, educational, health, medical, environmental and civilisational fields. The objective of this civil jihad is to exert oneself for Allah’s sake in order to educate the ignorant, employ the unemployed, train workers, feed the hungry, clothe the naked, house the homeless, treat the ill, achieve self-sufficiency for the needy, build schools for pupils, universities for students, mosques for worshippers, clubs for sports lovers to practice their hobbies” (p. 215).
Objectives of Jihad
Islam is a call to peace; it abhors war, but cannot prevent it, hence it prepares for it, but does not wage it unless it is forced upon it, which is due to Islam’s realistic nature and its recognition of sunnat al-tadafu`, the law of mutual checking. However it has sought to limit its consequences by surrounding it with rules and ethics. Islam has not been the exception in recognising war of necessity amongst other religions, including Christianity, whose followers have been among the most frequent participants in conflicts and wars, both against other Christians and against others. Luke’s Gospel reads “I have come to bring fire on the earth… Do you think I came to bring peace on earth?”. The Old Testament contains numerous calls to genocide, against 7 nations that inhabited Palestine that had to be completely eradicated – such that the modern calls to “transfer” and massacres committed by modern Zionist gangs are but miniature versions.
Jihad in Islam has specific objectives which Al-Qaradawi summarises as repelling transgression; preventing fitna – that is guaranteeing freedom of faith for Muslims and others; saving the oppressed; punishing those who break treaties, and enforcing internal peace within the Ummah. Thus, expansion and appropriation are not amongst the objectives of jihad, nor is the eradication of disbelief from this world, for that is against God’s law of difference and mutual checking. Nor do the objectives of jihad include imposing Islam on those who do not believe in it, for that contravenes God’s law of diversity and pluralism (pp. 423).
Military Jihad: Between Daf’ and Talab (Defensive and Preemptive Jihad)
Following the tradition of classical and contemporary jurists, Al-Qaradawi questions the nature of jihad and its status in Islam: Is it of a religious nature, meaning it is obligatory upon Muslims to fight non-believers until they embrace Islam or submit to its authority, which they call jihad al-talab, that is voluntary preemptive jihad? Or is it of a political nature, necessitated by the need to defend the lands of Islam against transgressors and to defend Muslims against those who prevent them from freedom of faith, and the oppressed generally – which they have termed jihad al-daf`, that is necessary defensive jihad, which, if Muslims must engage it, should be engaged in with pure intentions, for God’s sake, and following strict ethical guidelines which cannot be neglected.
Classically, and in the modern era, jurists have been divided between two groups, which al-Qaradwi calls the hujumiyyin (proponents of preemptive jihad) and difa`iyyin (proponents of defensive jihad), proclaiming his proud adherence to the second group. The hujumiyyin consider it an obligation for the Muslim nation to attack the land of the non-believers at least once a year in order to call to Islam and expand its territories. They hold disbelief per se as a sufficient reason to initiate war and legitimate killing, even if non-believers do not attack or harm Muslims, to the extent that Muslims would be sinful if they do not do so. The proponents of this view, a large number of jurists, most prominent of which among classical scholars is Imam al-Shafi`i, and among contemporary thinkers are Sayyid Qutb and al-Mawdudi, support their view with evidence from the Qur’an and the Sunnah, and from historical practice. The Qur’anic texts used call for fighting against all polytheists, such as verse 36 of surat al-Tawba (And wage war on all of the idolaters as they are waging war on all of you. ), (At-Tawbah 9:36), (slay the idolaters wherever ye find them ) (At-Tawbah 9:5), and (Fight against such of those who have been given the Scripture as believe not in Allah nor the Last Day … until they pay the tribute readily, being brought low ) (At-Tawbah 9:29). They differed as to which of those verses is the one they called Ayat al-Sayf, or verse of the sword, which, according to them, abrogated all contradicting verses, over 200 such verses calling for mercy, forgiveness and freedom of belief, prohibiting compulsion in faith and severity, and considering the judgment of people’s faith a matter to be left to God alone. They also sought support from prophetic sayings such as “I have been commanded to fight people until they say ‘there is no God but Allah’” (narrated by Bukhari). They also consider the early Islamic conquests as evidence for their view that war, rather than peace, is the natural state in Muslims’ dealings with others.
Al-Qaradawi’s disagreement with the above group does not prevent him from looking for excuses for them, particularly classical scholars, due to the relations between states at their time, which were based on power and war, and due to the existential threat to which Islam had been subjected since its birth in the Arab peninsula.
Al-Qaradawi stresses, alongside classical and contemporary scholars, the consensus that jihad becomes obligatory upon every Muslim if a Muslim land is attacked, or Muslims suffer fitna (are prevented from freedom of faith), and that every Muslim must practice some form of jihad, be it striving against one’s desires, against evil and corruption, and striving to promote good and support religion, as much as one is able to. However, Al-Qaradawi, through his study and analysis of the various texts related to jihad and the views of classical and contemporary scholars, concluded the following:
1. That Qur’anic verses, particularly those of surat al-Tawba commanding fighting against all polytheists, are to be understood as a reaction and an equal retribution, just as the verse says “as they fight you all together”, and not a general command or a basis for dealing with all non-Muslims, but was rather concerning a specific group of the Arab polytheists which declared war on Islam since its emergence, chased it out and followed it to its new home, broke treaties and mobilized everyone to eradicate it (Will ye not fight a folk who broke their solemn pledges, and purposed to drive out the messenger and did attack you first? ) (At-Tawbah, 9:13). Within the same chapter, as well as in other chapters, there are limits and conditions restricting the above –seemingly general- command: (And if they incline to peace, incline thou also to it ) (Al-Anfal, 8:61). There is no need to set one verse of the Qur’an against another; rather one should look at all relevant verses and hadith, all of which confirm the rule that Islam seeks peace with those who are peaceful towards it, and fights those who fight it.

   2. Military jihad is not an individual obligation upon every Muslim, of the same level as the obligations of the testimony of faith, prayer, fasting, alms giving and pilgrimage, for despite its importance within Islam, it was not included in the inherent characteristics of the God-conscious in surat al-Baqara, nor in the characteristics of the believers as described in surat al-Anfal or surat al-Mu’minun, nor in the characteristics of those with true understanding as described in surat al-Ra`d, nor in the characteristics of the servants of the Most Merciful as described in surat al-Furqan, nor in the characteristics of the pious in surat al-Dhariat, nor of the righteous ones described in surat al-Insan. Thus, the practice of military jihad only becomes an obligation upon Muslims when its conditions arise such as an attack on Muslims, their land or their religion. Preparing for such an incidence, on the other hand, is an obligation upon them, according to their ability, in order to deter enemies and maintain peace.

   3. There is no obligation upon Muslims to invade the lands of non-Muslims, if they are safe from them. It is sufficient for them to have a powerful army in possession of the latest weapons and trained soldiers guarding their borders and deterring enemies such that the latter do not think of attacking Muslims, for the collective duty to be fulfilled (p. 91). It is worth noting that Al-Qaradawi prefers using the term non-Muslims instead of kuffar or disbelievers, for that is the way of the Qur’an which uses the terms “O people of the Book”, “O people”, “O Man”, “O Children of Israel”, “My people”, “O Children of Adam”. It never addressed non-Muslims as disbelievers, except in a few exceptional cases where there were negotiations regarding creed.

   4. Islam recognized freedom of belief and each individual’s responsibility for his belief before God. On that basis, its societies, on the whole, did not experience religious wars. Under it, various monotheistic and pagan religions coexisted and continue to coexist, under the system of Dhimma which granted citizenship to non-Muslims regardless of religion. All they needed to do in order to enjoy the rights of protection by the Muslim state alongside Muslims was for those able to pay the jizyah tax to do so, which is equivalent to the military service tax in some modern systems. According to Al-Qaradawi, unifying the tax rate and generalizing military service make such a system which has been misunderstood and misused unnecessary.

   5. It was historical conditions, rather than the texts of Islam, that made many jurists believe preemptive jihad to invade non-Muslim lands to be obligatory. The Ummah was constantly threatened by its powerful neighbours, the Persians and Romans (p. 82), and there were no international laws based on mutual recognition of state sovereignty and prohibition of hostility as is the case today – despite their contravention by the powerful.

   6. The natural state of affairs in relations between Muslim and others is peace and cooperation in goodness. Islam abhors war and only engages in it unwillingly and as a necessity “Fighting is prescribed for you, though it is hateful to you” (Qur’an, 2:216). Peace is the essential character of Islam; it is the greeting of Muslims, the greeting of the people of Paradise, it is one of the names of Allah. The most hated name in Allah’s sight is Harb – which means war, one of the ancient Arab names, as Arabs were warriors. However, when the Prophet, blessing band peace be upon him, was told by his son-in-law that his daughter Fatimah had given birth to a boy and that he called him Harb, he commanded him to name him Hasan (meaning good).

   7. Islam welcomes international conventions that prohibit transgression and promote peace between nations, and welcomes international bodies that protect such laws, such as the United Nations, UNESCO, etc. However, the West still maintains its belief in the principle of power in its relation with other states and other nations. An example of that is the exclusive enjoyment of its major states of the right to veto, in a flagrant disregard for the principle of equality, thus guaranteeing the protection of their interest and the avoidance of any condemnation of its violations, as the US and UK did in their invasion of Iraq, without any legitimacy, with full impunity from any condemnation, and similarly with their continuous protection of the Zionists’ various forms of hostility against Palestine and its people.

   8. Under international recognition of human rights, including freedom of belief and preaching, as well as freedom to establish institutions and protect minorities, one of the principal justifications of jihad al-talab becomes redundant, that is invasion in order to enable the call to Islam by dismantling oppressive regimes which used to prevent their people from thinking freely or choosing beliefs that are different to those of their rulers, such as the Pharaoh who reprimanded the Children of Israel for believing without his permission: ( Ye put faith in him before I give you leave.)  (Ta-Ha 20:71). In contrast, today, unprecedentedly, in any previous era of Islam history, mosques and Muslim minorities are found everywhere, making our need greater for “huge armies of competent preachers, teachers, media experts, all suitably trained and able to address the world in its different languages, and using methods of this modern age, which, unfortunately, we possess less than a thousandth of what is required”, (p.16). Al-Qaradawi laments that you may find many who are ready to die for Allah’s sake, but very few who are willing to live for His sake.

   9. The sources of Islam reveal that, according to Islam, the world is three abodes: dar al-Islam, the abode of Islam, where its law reigns, where its rituals are publicly practiced, and where its adherents and preachers are secure; Dar al-`ahd- the abode of accord, that is states between which and the Muslim state there is mutual recognition and prohibition of hostility; and finally dar al-harb, or the abode of war. Al-Qaradawi regards Muslims, in view of their being part of the system of the United Nations, as being in a state of accord/pact with other states, except with the Zionist state, because of its usurpation of the land of Palestine and its dispossession of its people, which unfortunately took place with the support of major states. Thus Al-Qaradawi considers the greatest problem in our relation with the West to be its constant and unlimited support of Israel and its continuous aggression against Palestine and its people.

  10. Al-Qaradawi distinguishes between jihad and irhab – terrorism, or between legitimate irhab – being feared by the enemy to deter it from any aggression, and illegitimate irhab, that is terrorizing innocent people as done by groups using the name of Islam, which declare war on the whole world in an illegitimate use of jihad in an inappropriate setting, terrorizing innocent people – Muslims and non-Muslims – in order to achieve alleged political ends inside or outside Muslim lands, flagrantly contravening the principles and ethics of jihad in Islam. Hence Al-Qaradawi condemned violent acts committed by extremist groups in Muslim and non-Muslim countries against innocent people, whether tourists or others. He further stripped the indiscriminate killing and shedding of innocent lives committed by these groups of any legitimacy.

  11. Al-Qaradawi is extremely careful to distinguish between extremist groups that declare war on the whole world, killing indiscriminately, tainting the image of Islam and providing its enemies with fatal weapons to use against it, on the one hand, and on the other groups resisting occupation. And as much as he condemns the former and delegitimizes its foundations, he defends the latter, and calls on the Ummah to support them, particularly in Palestine, as long as their operations are against military targets. He does not hesitate to justify martyrdom operations, considering them to be the weapon of one with no other options, who is deprived of equivalent weapons to those of the enemy, in order to defend his home and his land. God’s justice does not allow the weak to be completely deprived of any weapon, hence the latter’s use of his own body as a deterrent weapon. In any case, the ethics of jihad must always be respected, and only combatants can be targeted.

  12. As he stresses that the first jihad to be obligatory upon the Ummah in this age is liberation from colonialism, particularly in Palestine, Al-Qaradawi warns and stresses the fallacy of those who wrongly believe that the conflict between us and Zionists is due to the fact that they are Semites – for we are also Semites, both of us coming from the progeny of Abraham – or that it is a religious conflict – for Muslims regard Jews as People of the Book, whose food is lawful, with whom marriage is lawful, and who have lived amongst Muslims in safety and have sought refuge in our lands when Spain and other European countries expelled them, finding refuge nowhere but among Muslims. In reality, the conflict between us and Zionists started for one single reason: their appropriation of the land of Palestine, dispossessed its people, and imposed their presence with violence. The conflict will continue as long as its causes remain. No one can give up any Muslim land, but it is possible to have a truce with Israel for an agreed period of time. As for the principle of “Land for Peace”, it is indeed a bizarre principle imposed by the logic of the enemy’s brute force, for the land is our land, not the enemy’s, so that it can bargain it in return for peace (p. 1090).

  13. Just as he, and his mentor Sheikh Muhammad al-Ghazali, had a leading role in confronting those extremist groups and preventing them from hijacking Islam and diverting it from its mainstream towards the margins, through stripping their actions of any legitimacy based on jihad, both inside and outside Muslim lands, Al-Qaradawi praised the important revisions made by the most important of those groups, which found great support in his writings – after having attacked and rejected his views – in order to engage in their revisions, which he described as brave and enlightened (p. 1168). For Muslims, war is governed by a moral code, because morals are not an option, but rather an essential part of religion.
Ethics of Jihad
“War in Islam is ethical, just like politics, economics, science and work, none which is divorced from ethics, in contrast to war in western civilisation, which is not necessarily bound by ethics.” For Muslims, war is governed by a moral code, because morals are not an option, but rather an essential part of religion. That includes: a) Islam’s prohibition of the use of unethical methods to infiltrate the enemy and obtain their secrets – including sex, intoxicants, etc. b) prohibition of transgression, as the Qur’an commands(Fight in the way of Allah against those who fight against you, but begin not hostilities. Lo! Allah loveth not aggressors.) (Al-Baqarah 2:190). The author interprets transgression to mean killing non-combatants, by killing women, children, the elderly, the ill, farmers, and others not engaged in fighting (p. 728). The ethics of jihad also include the prohibition of mutilation of the enemy. c) the fulfillment of agreements and prohibition of treachery and betrayal. d) Prohibition of cutting down trees and demolishing buildings. e) The non-legitimacy, islamically, of what is called weapons of mass destruction, such as chemical, biological or nuclear weapons which kill thousands or millions at once, without discriminating between the guilty and innocent, destroying life and all living beings. Islam prohibits the use of such weapons, because Islam prohibits the killing of non-combatants, as the Prophet, peace be upon him, strongly condemned the killing of one woman in one battle. However, that does not prevent the Ummah from seeking to acquire such deterrent weapons, since others are in possession of them and can threaten Muslim nations with those weapons, particularly as the Zionist enemy which has usurped its land is in possession of such weapons, and their scripture legitimises the obliteration of all their neighbours. What is astonishing is that America and other great nations prohibit other nations from possessing these weapons, while they themselves possess them. They prevent Arab and Muslim states from acquiring them, while Israel possesses over two hundred nuclear heads. The mutual deterrence between the western and eastern blocks had contributed to the maintenance of world peace, and similarly between India and Pakistan. Such weapons cannot be used, except in the most exceptional circumstances, when a nation is subject to an existential threat (p. 592). f) Islam enjoins its mujahidin to treat captives kindly. After a detailed discussion of all texts and all juristic opinions concerning war captives, particularly on the question of whether they can be killed, the author concluded that the final ruling is that revealed in surat Muhammad “either set them free as a favor or let them ransom (themselves)” (47:4), possibly with the exception of war criminals. On the whole, the author approves the articles of the Geneva Convention regarding the treatment of captives.
In conclusion: Al-Qaradawi’s study on the fiqh of jihad can be regarded as an authentic Islamic ijtihad, upholding the principle of jihad as an eternal Islamic mechanism of defence in its wider meaning, one which has suffered a great number of misrepresentations leading to tainting the image of Islam. Al-Qaradawi recuperates the effectiveness and moderation of this mechanism, taking it out of the hands of extremists. His courage in standing up to the campaigns waged against the concept of Islam has been just as great as his courage in rejecting the arguments of extremist groups who declare war against the entire world. He did not shy away from criticizing the great number of jurists who uphold the principle of preemptive war (jihad al-talab), nor was he ashamed of his proud adherence to the group believing in jihad as defensive only. He continues to counter the arguments of the former group, without fear or hesitation, without injustice, undermining or misrepresenting the views of those he disagrees with, but rather he seeks excuses for them. He has continued to do so, until he almost destroyed what is known as jihad al-talab, establishing instead defensive jihad in its wider meaning, jihad with no trace of relation to the charge of terrorism – which he clearly distinguishes from legitimate resistance of occupation-, a jihad with ethics that agree with international conventions and their principles, values and laws prohibiting aggression, occupation, the use of weapons of mass destruction and the torture of captives; a jihad that welcomes an open world in which ideas and persons move freely, dealing through proofs and arguments rather than violence and power, until the most valid triumphs. Through such a presentation of jihad, Al-Qaradawi has opened a vast space for dialogue, tolerance, agreement and coexistence between Islam and other religions, human values, and international accords, enabling a response to the eternal Qur’anic call(O mankind! Lo! We have created you male and female, and have made you nations and tribes that ye may know one another. Lo! the noblest of you, in the sight of Allah, is the best in conduct. Lo! Allah is Knower, Aware. ) (Al-Hujurat 49:13)
Best Regards

ZULKIFLI HASAN
Durham University, UK
Muslims News
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5 Comments
February 21, 2010
DR. ZULKIFLI HASAN
Islamic Finance Needs Regulation: Experts
Islamic finance needs regulation: experts

Available at:
http://www.reuters.com/article/idUSTRE61H3AT20100218
DUBAI (Reuters) – Dubai’s debt woes underscore the need for regulation and restructuring in the Islamic finance industry, said experts speaking at Reuters Islamic Banking and Finance Summit in Dubai. Repayment fears about the sukuk, or Islamic bonds, issued by Dubai World’s property unit Nakheel put Islamic finance on the global stage and tarnished an industry that had been expected to remain buoyant even as conventional banks slowed down.
State-linked Dubai World shook global markets in November with plans to request a delay on repaying $26 billion in debt. It staved off default on a $4.1 billion Islamic bond linked to Nakheel after a last-minute bailout from Abu Dhabi.
The industry must create guidelines to prevent the type of uncertainty investors had over the structuring of Islamic finance products and the underlying assets that are used to create them, said Mohd Daud Bakar, an Islamic scholar. “We need to have in place by regulators what we mean by asset-based and asset-backed (securities),” Bakar said. “We need more transparency and regulation. That’s the missing link in this part of the world.”
That is not an easy task, given that the Islamic finance industry spans the globe and is under jurisdictions with differing interpretations of sharia law. Malaysia, for instance, is considered to be more liberal in its view of sharia compliance, while Saudi Arabia has much stricter rules on what is allowed and what is prohibited.
Bakar said that each country should start a domestic dialogue to answer basic questions of transparency before moving on to an authoritative regional body. He added that a central regulatory body may be a solution down the road to help lenders have someone to turn to with questions of restructuring a sukuk. It could also serve as a “quasi-government” entity, armed with the mission to look after a defaulting sukuk if that happens, Bakar added. Currently regulation is divided between central banks, standard-setting bodies and scholars.
CENTRAL REGULATION COULD STIFLE GROWTH
Because the Islamic finance industry spans the globe and is under jurisdictions with differing interpretations of sharia law, guidelines to prevent uncertainty for investors are seen as necessary. However the idea of a central authority does not appeal to everyone.
“It would stifle growth in the industry,” said Harris Irfan, head of Islamic products at Barclays Capital. “We are at a stage of creating things and if we had to go to a public sector regulator for approval on everything, there wouldn’t be any business.” “It would be paralytic,” Irfan added.
Peter Casey, director of policy at Dubai Financial Services Authority, said the role of a financial regulator in conventional and Islamic banking is to make sure that a company can pay its debt when it is due and maintains ethical conduct in business, including disclosure practices. It can also engage in product regulation.
But to ask a regulator to determine sharia-compliance would be difficult, as scholars themselves are divided. “The industry has to help bring the scholars together and get a consensus among them,” he said. “But I don’t think financial services regulators can impose a consensus except locally where none exists.”
In the meantime, it is up to financial institutions to revisit their Islamic finance contracts and restructure them in a way to make sure that they are clear to all parties involved. Muneer Khan, partner at Simmons & Simmons, said he is seeing an increase in demand from financial institutions to make sure there is “as much transparency as possible about structures and associated risks.”
He added that advisors working on corporate restructuring must be even more diligent about assuring that restructured transactions continue to be sharia compliant going forward. “There are standards in sharia compliance right now which are as close as you’re going to get to a global sharia standard,” Khan said. “It may not be perfect but it’s a good starting point.” (Reporting by Shaheen Pasha; Editing by Rupert Winchester)
“The trouble with government regulation of the market is that it prohibits capitalistic acts between consenting adults.” Robert Nozick
Regards

ZULKIFLI HASAN

DURHAM, UK
Glasgow, Scotland
Islamic finance news
Leave a comment
February 17, 2010
DR. ZULKIFLI HASAN
Luxembourg Tax Measures – A Shari’ah Perspective
Luxembourg tax measures – a Shariah perspective
By MUSHTAK PARKER Available at:
http://arabnews.com/economy/islamicfinance/article17044.ece
LONDON: Following the recent circular from the Luxembourg tax authorities describing the major principles and contracts of Islamic finance and their respective tax treatment, most financial market players have welcomed the measures.
However, one advisory firm, Dananeer for Islamic Finance Consulting and Training Services, has called for further clarification, especially relating to the qualifying conditions attached to Murabaha transactions.
In a statement last week, Dananeer stressed that the conditions may have implications from a Shariah perspective. The Luxembourg minister of finance led the praise for the director of contributions for introducing the Islamic finance circular, and market players stress that it shall lift one of the hurdles which have, until now, prevented Luxembourg from being the leader in Islamic finance in Europe.
Luxembourg financial market specialists such as Marc Theisen, partner at the prominent law firm, Theisen Schiltz, and Claude Zimmer of Luxembourg Global Trust, one of the leading tax advisers in the Duchy, told Arab News that by issuing the circular, the Luxemburg tax authorities confirmed the most liberal approach to Islamic financial transactions – the taxation over the period of the deferred payment for Murabaha contracts and the tax neutrality for the issuance of sukuk through special purpose vehicles (SPVs) established in Luxemburg.
The proposed tax treatment, they added, “is perfectly in line with the continued efforts of the Luxemburg government to sustain the Duchy as the best or one of the best leaders in international financial engineering centers. It is a very pragmatic and open-minded position taken by the tax authorities. This innovation and pragmatism is not new and has happened many times in the past. The fund industry in Luxemburg was the first mover with many structures including UCITs, with its success we all know. Luxembourg is number one in Europe and No. 2 in the world for cross-border distribution. It also has the most favored trademark tax regime at approximately 6 percent. The circular on Islamic finance is just the latest manifestation of this pragmatism and innovation, especially in this new field, which is showing rapid growth worldwide. We have to commend the Luxembourg government and financial regulatory authorities for this far-sighted policy.”
However, they did acknowledge that the Luxembourg authorities do need the technical assistance and intellectual engagement from Islamic finance experts and Shariah scholars from abroad, including professional bodies such as the Kuala Lumpur-based Islamic Financial Services Board (IFSB), so as to leverage its policies and measures on Islamic finance.
Indeed, in November 2009 the IFSB Council admitted Banque centrale du Luxembourg, the central bank, as an associate member, thus making Luxembourg the first European Union country to become a member of the IFSB, whose mandate is to set prudential and regulatory standards for the global Islamic financial sector. Perhaps equally importantly, the Banque centrale du Luxembourg will also second staff to the IFSB so that they can become familiar with Islamic finance concepts and study the various issues, notably liquidity and risk management.
The circular covers a whole range of Islamic finance products including Murabaha, Musharaka, Mudarabah, Istisna, Ijarah, Ijraha wa Ikitina and Sukuk (Islamic bonds). According to the preamble of the circular, “Islamic finance involves financial instruments used by investors who wish to manage their investments observing the values of Islam. The objective of Islamic finance is to share profits and losses between those who provide the capital and those who use it.” The director of contributions identifies two Shariah principles that merit particular attention: “third party” capital providers (such as banks for instance) cannot in principle play a passive role, but must in contrast act as true “partners”; and the prohibition on lending money (with interest) to third parties.
But last week, Dananeer for Islamic Finance Consulting and Training Services, a company recently established in the Benelux countries, while welcoming the Circular called on the director of contributions to clarify and reconsider some of the conditions relating to the tax treatment of Murabaha transactions from a Shariah point of view. Some of the senior people involved in Dananeer include Mohamed Boulif, formerly with the Dar Al-Maal Al-Islami (DMI) Group in Geneva, Sufian Bataineh, S. Quraishi and H. Bouchella.
Indeed, the current tax law provisions when applied to Islamic finance transactions lead to a double taxation of Murabaha transactions. The circular aims, by defining specific requirements, to establish a level-playing field between conventional and certain Islamic finance transactions, namely Murabaha and sukuk.
Murabaha is the sale of a commodity for a deferred price which includes an agreed profit added to the cost. The circular indeed treats Murabaha as a sale agreement. Consequently, in principle, the profit realized on that sale is acquired by the financier from the signature of the agreement and the entire proceeds of the sale are taxable immediately, including the financier’s margin, otherwise called its profit.
Nevertheless, to the extent that, on an economic level, the financier’s profit constitutes the remuneration for a deferred payment during that period, that profit may benefit from a spread of taxation on the proceeds for continuous or discontinuous services at successive maturities, remunerated in particular by rents. In other words, the profits are taxed on a linear basis over the term of the payment deferment, whatever the reimbursement.
The above benefits, however, are subject to certain conditions, including: a) the agreement between the parties must clearly highlight the fact that the financier acquired the property in order to resell it, concomitantly or within a period which may not exceed six months, to its client; b) the agreement must separately indicate the specific remuneration of the financier for its involvement, with the financier’s profit constituting the compensation for a payment deferment, the client’s acquisition price and the price for acquisition of the property by the financier; c) the financier’s profits must be clearly stated, known and accepted by the two parties to the agreement; d) the financier’s profits must be expressly indicated as being compensation for the service provided by the financier to the client which results from the effective deferment of payment granted to the investor.
There may for example be a clause presenting the profits as “compensation for the payment deferment granted to the purchaser by the vendor, the purchaser undertaking to pay the vendor the profit until the date of final reimbursement”; and with regard to accounts and fiscal aspects, the profits must be spread by the financier on a linear basis over the period of the payment deferment, whatever the reimbursement.
From a Shariah perspective, stressed Dananeer in a statement, the above conditions are not a problem except for the first one (a).
The practical implementation of the first condition, explained Dananeer, is likely to trigger questions. Murabaha, the statement added, has originally never been considered as a financing instrument. “It is a newly-developed product that has been derived in order to avoid the accruement of interest (the prohibited Riba) in loan transactions which is a pillar of the modern financial system. Shariah scholars have allowed Murabaha as a method of financing provided, however, that certain strict conditions are complied with. One of the main conditions is that the commodity must be in the ownership and physical possession of the seller at the time of sale.
“Therefore, when a potential purchaser of a commodity approaches a financing party to finance such a commodity, the financing party cannot enter into a sale contract simply because he is not yet the owner of that commodity. As a result, one of the issues raised by the first condition from a Shariah perspective is: How the parties can state in the sale contract that the seller acquires the commodity in order to resell it to the purchaser?” it continued.
“The more laws are enacted and taxes assessed, the greater the number of lawbreakers and tax evaders” Lao Tzu
Best Regards

ZULKIFLI HASAN

DURHAM, UK
Trisakti University, Jakarta, Indonesia
Islamic finance news
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�� Guidelines on Money Laundering and Know Guidelines on Money Laundering and Know

You Customer Policy.You Customer Policy.

�� The Anti Money Laundering Act 2001 The Anti Money Laundering Act 2001

�� Roles of Reporting InstitutionsRoles of Reporting Institutions

�� The Offence of Money LaunderingThe Offence of Money Laundering

IntroductionIntroduction

�� Money launderers may use B as a place to Money launderers may use B as a place to

legitimate their illlegitimate their ill--gotten gains through gotten gains through

utilization of various financial instruments. utilization of various financial instruments.

�� Bank as one of the reporting institutions has Bank as one of the reporting institutions has

statutory duties relating with money laundering. statutory duties relating with money laundering.

What is ML?What is ML?

�� Money laundering is the process by which criminals Money laundering is the process by which criminals

create the illusion that the money they are spending is create the illusion that the money they are spending is

actually theirs to spend. actually theirs to spend.

�� Section 3 of the AMLA defines money laundering as Section 3 of the AMLA defines money laundering as

the act of a person who engages, directly or indirectly in the act of a person who engages, directly or indirectly in

a transaction that involves proceeds of an unlawful a transaction that involves proceeds of an unlawful

activity, and who enquires, receives, possesses, disguises, activity, and who enquires, receives, possesses, disguises,

transfers, converts exchanges, carries, disposes, uses, transfers, converts exchanges, carries, disposes, uses,

remove from or brings into Malaysia proceeds of any remove from or brings into Malaysia proceeds of any

unlawful activity. unlawful activity.

MLML

�� momoney laundering involves three main activities ney laundering involves three main activities

namely namely

�� 1. 1. the conversion of illegal cash into another the conversion of illegal cash into another

asset, asset,

�� 2. the concealment source of the illegally 2. the concealment source of the illegally

acquired proceeds andacquired proceeds and

�� 3. the creation of the perception of legitimacy of 3. the creation of the perception of legitimacy of

source and ownership. source and ownership.

Process Process

�� Money laundering process comprises of three main stages. Money laundering process comprises of three main stages.

�� 1. Placement, which means illegal gains which introduce into the1. Placement, which means illegal gains which introduce into the
financial system. The illegal profits may derive from drug trafffinancial system. The illegal profits may derive from drug trafficking,  icking,
prostitution rings, smuggling, illegal arms sale, kidnapping forprostitution rings, smuggling, illegal arms sale, kidnapping for
ransom, bribery, computerransom, bribery, computer--fraud schemes and smuggling of human fraud schemes and smuggling of human
beings and organs. beings and organs.

�� 2. 2. ‘‘LayeringLayering”” is the process of is the process of transferingtransfering illegitimate funds among illegitimate funds among
various accounts so as to disguise the money trail such as purchvarious accounts so as to disguise the money trail such as purchase ase
and sales of investment instruments or through multiple transferand sales of investment instruments or through multiple transfers of s of
funds from different accounts around the world disguised as funds from different accounts around the world disguised as
payments for goods or services. payments for goods or services.

�� 3. Integration 3. Integration ieie to integrate the illegal proceeds back into the to integrate the illegal proceeds back into the
economy as legitimate funds through legitimate transactions sucheconomy as legitimate funds through legitimate transactions such as as
business ventures, luxury assets, lending, financing andbusiness ventures, luxury assets, lending, financing and

PREVENTIVE MEASURES PREVENTIVE MEASURES

�� In International community, the Financial In International community, the Financial

Action Task Force on Money Laundering Action Task Force on Money Laundering

(FATF) is an important inter(FATF) is an important inter--governmental governmental

body that develops and promotes policies to body that develops and promotes policies to

combat money laundering.combat money laundering.

�� The GThe G--7 industrial group established the 7 industrial group established the

FATF as a global moneyFATF as a global money--laundering laundering

watchdog, as a response over money watchdog, as a response over money

launderinglaundering

ContCont……

�� In Malaysia, there are several preventive In Malaysia, there are several preventive

measures that have been taken by the measures that have been taken by the

authoritiesauthorities::--

�� Guidelines on Money Laundering and Know Guidelines on Money Laundering and Know

You Customer Policy.You Customer Policy.

�� Malaysia joined the Asia Malaysia joined the Asia PacBankcPacBankc Group on Group on

Money Laundering (APG) in 2000. Money Laundering (APG) in 2000.

�� There is also a committee at national level to There is also a committee at national level to

combat money laundering consists of 13 combat money laundering consists of 13

ministries and government agencies known as ministries and government agencies known as

NCC which has been set up in April 2000.NCC which has been set up in April 2000.

LEGAL PERSPECTIVELEGAL PERSPECTIVE

�� The Malaysian government took a step in The Malaysian government took a step in

combating money laundering by introducing the combating money laundering by introducing the

AMLA 2001 and its amendment in 2003.AMLA 2001 and its amendment in 2003.

�� The AMLA gives certain agencies authority to The AMLA gives certain agencies authority to

trace, seize and ultimately confiscate criminally trace, seize and ultimately confiscate criminally

derived wealth and enabling inter government derived wealth and enabling inter government

exchange of information with counterparts in other exchange of information with counterparts in other

countries. countries.

�� The AMLA requires the reporting institutions to The AMLA requires the reporting institutions to

comply with certain statutory duties.comply with certain statutory duties.

Reporting Institutions Reporting Institutions
�� Reporting institutions refer to financial Institution Reporting institutions refer to financial Institution
as an institution licensed under the IBA 1983, the as an institution licensed under the IBA 1983, the
Takaful Act 1984, the BAFIA 1989, The Insurance Takaful Act 1984, the BAFIA 1989, The Insurance
Act 1996 and the MoneyAct 1996 and the Money--Changing act 1998 or Changing act 1998 or

�� a person licensed under the Securities Industry Act a person licensed under the Securities Industry Act
1983, the Securities Commission Act 1996 and the 1983, the Securities Commission Act 1996 and the
Futures Industry Act 1993 or an offshore financial Futures Industry Act 1993 or an offshore financial
institution (Labuan Offshore Financial Services institution (Labuan Offshore Financial Services
Authority) Act 1996 Authority) Act 1996

�� including including LembagaLembaga TabungTabung HajiHaji, Development , Development
financial institutions, postal financial services and financial institutions, postal financial services and
gaming houses.gaming houses.

Roles of Reporting Institutions Roles of Reporting Institutions visvis

a a visvis Bank Bank

�� Reporting of Suspicious TransactionsReporting of Suspicious Transactions--

Section 14 of the AMLA,  banks or financial Section 14 of the AMLA,  banks or financial

institutions have responsibility to report for institutions have responsibility to report for

any  suspicious transactions to BNM. any  suspicious transactions to BNM.

�� Internal PolicyInternal Policy-- The AMLA requires a The AMLA requires a

reporting institutions to adopt, develop and reporting institutions to adopt, develop and

implement internal programs, policies, implement internal programs, policies,

procedures and controls to guard against procedures and controls to guard against

and detect an offence.and detect an offence.

ContCont……

�� Know Your CustomerKnow Your Customer-- There must be a There must be a

standard operational procedure to enable standard operational procedure to enable

Bank in identifying customers such as Bank in identifying customers such as

verifying by reliable means the identity, legal verifying by reliable means the identity, legal

capacity, occupation or business purpose capacity, occupation or business purpose

through the use of documents such as through the use of documents such as

identity card, passport, birth certificate and identity card, passport, birth certificate and

driverdriver’’s s licencelicence

ContCont……

�� Compliance officerCompliance officer-- The Compliance Officer will The Compliance Officer will

deal with the FIU of any matter pertaining to deal with the FIU of any matter pertaining to

suspicious transactions as well as inculcating suspicious transactions as well as inculcating

awareness to employees on the essence of anti awareness to employees on the essence of anti

money laundering money laundering programmeprogramme..

�� Continuous TrainingContinuous Training-- Guidelines on Money Guidelines on Money

Laundering and Know You Customer Policy Laundering and Know You Customer Policy

issued by CBM requires financial institution to issued by CBM requires financial institution to

conduct continuous training to its employees conduct continuous training to its employees

either at branch or management leveleither at branch or management level

ContCont……

�� Record KeepingRecord Keeping-- Section 17 of the AMLA Section 17 of the AMLA

requires reporting institution to maintain requires reporting institution to maintain

record for not less than 6 years. record for not less than 6 years.

�� Production of DocumentsProduction of Documents-- Public Public

Prosecutor if he is satisfied may authorize Prosecutor if he is satisfied may authorize

in writing an investigating officer in in writing an investigating officer in

relation to any financial institution to relation to any financial institution to

inspect, take copies of books, record, inspect, take copies of books, record,

reports belonging to the bank and to reports belonging to the bank and to

scrutinize share transactions or related scrutinize share transactions or related

affairs.affairs.

ContCont……

�� Freezing OrdersFreezing Orders-- Section 44 (1) states that Section 44 (1) states that

where an enforcement agency having the where an enforcement agency having the

power to enforce the law under which a power to enforce the law under which a

serious crime is committed or about to be serious crime is committed or about to be

committed, it may issue an order freezing committed, it may issue an order freezing

any property of that person, wherever his any property of that person, wherever his

property may be or in his possession , under property may be or in his possession , under

his control or due from any source to him.his control or due from any source to him.

CasesCases
�� PP v Dr. PP v Dr. HamimahHamimah-- She was charged under the AMLA She was charged under the AMLA

involving a sum of RM37.062 million at KL Sessions involving a sum of RM37.062 million at KL Sessions

Court. Court.

�� PP v PP v GanGan KiatKiat BendBend –– He was charged in KL Sessions He was charged in KL Sessions

Court for accepting illegal money in a sum of RM2 Court for accepting illegal money in a sum of RM2

million through Standard Chartered Bank in Jan 2004. million through Standard Chartered Bank in Jan 2004.

�� PP v Ismail PP v Ismail HusinHusin-- He was charged in KL Sessions Court on 3 He was charged in KL Sessions Court on 3

May 2005 for accepting and using illegal money in a sum of May 2005 for accepting and using illegal money in a sum of

RM2.85 million through Standard Chartered Bank and a RM2.85 million through Standard Chartered Bank and a

telegraphic transfer from the bank to his wifetelegraphic transfer from the bank to his wife’’s BCB account.s BCB account.

�� PP v Abdul Khalid HamidPP v Abdul Khalid Hamid –– He was charged of using illegal He was charged of using illegal

money in a sum of RM65,761.09money in a sum of RM65,761.09


429 Too Many Requests

nginx


BLOG OF KNOWLEDGE (Shari'ah, Law, Islamic Finance and Muslim News)
Shari'ah, Law, Islamic Finance and Muslim News
June 24, 2014
DR. ZULKIFLI HASAN
Is Tawarruq Really Islamic Finance?
Is Tawarruq Really Islamic Finance?
Available at:
http://finance.yahoo.com/news/tawarruq-really-islamic-finance-080324265.html;_ylt=AwrTWfyxoalTW0UAQZ_oPwx
.
A legal opinion from Ethica Institute Of Islamic Finance, one of the Islamic finance industry’s leading training and certification institutes sheds light on the problem of the Tawarruq retail product and how it is likely hurting the industry’s profitability
You walk into the Islamic bank, sign some papers, “trade” in metal in some corner of the globe, and walk out with cash. Papers are pushed, money changes hands, and the metal just sits there, ready for the next customer to “trade” a few minutes later. Or can the same metal be bought and sold by different customers in the same minute? Who’s counting anyway?
Welcome to the world of Tawarruq.
Last week Ethica Institute, one of the industry’s leading Islamic finance training and certification institutes, distributed a fatwa (expert legal opinion) to its community from one of its scholars, Mufti Ismail Desai, explaining the impermissibility of a particular Tawarruq product. The product in question came to light when one of the UK’s major banks approached the institute for its training and certification services. Ethica declined to offer its services citing Shariah non-compliance of the Tawarruq product.
What some Islamic finance scholars begrudgingly allow for in extreme, case-by-case situations, banks often turn into a retail product for ordinary customers to use. Tawarruq, according to Ethica, is one of the main reasons customers question the credibility of Islamic finance. A product that began as the industry’s somewhat embarrassing black sheep over a decade ago has now grown into the eight hundred pound darling of many Islamic banks.
Ethica’s fatwa raises two important issues for an industry fast on growth but slow on establishing credibility among banking customers: first, what really is Tawarruq? And, second, importantly, if it becomes a regular product, is it still Islamic finance?
“Banks think they attract customers in the short term, but the reality is that they lose them in the long term. Ethica works with bankers and customers across multiple regions and we are seeing the same pattern: when Islamic finance’s credibility is compromised, customers leave. And they usually don’t come back. Retail Tawarruq is not only Shariah non-compliant most times, it is also quite possibly the worst first impression we can make as an industry,” said Ethica’s spokesperson.
Ethica explains that the first step to understanding Tawarruq is understanding its definition according to the Accounting and Auditing Organization for Islamic Financial Institutions (AAOIFI), the world’s leading Islamic finance standard. Tawarruq (Monetization), “refers to the process of purchasing a commodity for a deferred price determined through Musawama (Bargaining) or Murabaha (Mark-up Sale), and selling it to a third party for a spot price so as to obtain cash. Whereas Inah refers to the process of purchasing the commodity for a deferred price, and selling it for a lower spot price to the same party from whom the commodity was purchased.”
To expand on this definition,
1. Bay al-Inah is composed of two sale transactions. In the first transaction, a seller sells an item for a particular price to be paid in deferred installments. In the second transaction, after taking possession of the item, the buyer sells the item back to the seller for immediate payment of a lower price, to be paid before the installments of the first sale are due. The overwhelming majority of scholars are of the opinion that Bay al-Inah is impermissible when the price of the second sale is lower than the first sale. However, some jurists have ruled that Bay al-Inah is permissible in the instance when the price of the second sale is equal or higher than the price of the first sale.
2. Bay al-Tawarruq in the strict definition of the jurists is defined as a Monetizer (mustawriq) who buys a merchandise at a deferred price in order to sell it in cash at a lower price. Usually he sells the merchandise to a third party with the aim to obtain liquidity. Jurists have ruled that this form of Tawarruq is permissible since the laws and rules of a valid legal Shariah sale have been fulfilled.
The contemporary definition of organized Tawarruq is when a Monetizer (mustawriq) purchases merchandise/commodities on the international commodity market on a deferred price basis either through Musawamah or Murabaha. The financier arranges the sale agreement either himself or through his agent. Simultaneously, the mustawriq and the financier executes the financial transactions, usually at a lower spot price.
According to scholars, Tawarruq should be limited to individual need and necessity and not retailed to the public. The Islamic economy, they say, should be based on profit-sharing instruments like Mudarabah and Musharakah. Interest free loans (Qardh Hasan) are the ideal alternative to Tawarruq. Among the problems with Tawarruq:
1. Tawarruq in currencies are not permissible.
2. The bank cannot sell goods on behalf of the client without the client taking physical or constructive possession of the goods. This does not usually take place. Islamic banks generally sell the warrants representing the metals and not the actual metals. Therefore, the bank does not take possession when purchasing the metals from the broker initially. The Mustawriq (monetizing client) does not take possession in any form of the metals. The bank is merely appointed as an agent to sell the metals on the metal exchange without any actual Shariah realization of the contractual positions required.
3. All the transactions in a Tawarruq transaction should be separated and individualized. The various legs in most transactions are not individualized and separated.
4. Contemporary forms of organized Tawarruq are very similar to Bay al-Inah and have been largely detested by the majority of scholars including the International Council of Fiqh Academy. (Resolution 179 (19/5) in relation to Tawarruq: its meaning and types (classical applications and organized Tawarruq))
While it remains to be seen whether Tawarruq reform is likely in the industry much like a few years ago when banks began cleaning up their Sukuks after AAOIFI’s chairman, Mufti Taqi Usmani, publicly criticized them there is no doubt that the industry continues to suffer the long-term consequences of an expedient reading of an already borderline product.
Regards

Zulkifli Hasan
Tokyo, Japan
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