BLOG OF KNOWLEDGE (Shari'ah, Law, Islamic Finance and Muslim News)
Shari'ah, Law, Islamic Finance and Muslim News
Monthly Archives: December 2010
December 29, 2010
DR. ZULKIFLI HASAN
McKinsey Quarterly Top Ten Articles of 2010
McKinsey Quarterly Top Ten Articles of 2010
by McKinsey Quarterly Available at:
http://www.mckinseyquarterly.com/newsletters/topten/2010_Q3.htm
We’ve rounded up the most popular articles among readers this year. Topics they were most interested in include decision-making biases, digital marketing, and management in uncertain times.
1. STRATEGY
Global forces: An introduction
Five crucibles of change will restructure the world economy for the foreseeable future. Companies that understand them will stand the best chance of shaping it. A related video highlights the value of tracking global forces and how to build them into corporate strategy.
2. BUSINESS TECHNOLOGY
Clouds, big data, and smart assets: Ten tech-enabled business trends to watch
Advancing technologies and their swift adoption are upending traditional business models. Senior executives need to think strategically about how to prepare their organizations for the challenging new environment. In a set of accompanying podcasts, leading experts offer their views on how these trends will evolve and change business models.
3. MARKETING
A new way to measure word-of-mouth marketing
Assessing its impact as well as its volume will help companies take better advantage of buzz. An accompanying podcast focuses on how marketers can use word of mouth to influence consumer behavior.
4. STRATEGY
The case for behavioral strategy
Left unchecked, subconscious biases will undermine strategic decision making. Learn how to counter them and improve corporate performance, and explore an accompanying interactive showing the biases most pertinent to business and the ways they can combine to create dysfunctional patterns in corporate cultures.
Plus, take this brief survey on how you make decisions, and we’ll send you feedback on how your decision-making style compares with those of other respondents and on how to avoid any biases you may be prone to.
5. GOVERNANCE
Why good bosses tune in to their people
Know how to project power, counsels Stanford management professor Bob Sutton, since those you lead need to believe you have it for it to be effective. And to lock in your team’s loyalty, boldly defend their backs.
6. ORGANIZATION
How centered leaders achieve extraordinary results
Executives can thrive at work and in life by adopting a leadership model that revolves around finding their strengths and connecting with others.
7. CORPORATE FINANCE
Creating value: An interactive tutorial
In this video presentation, McKinsey partner Tim Koller explores the four guiding principles of corporate finance that all executives can use to home in on value creation when they make strategic decisions.
8. ORGANIZATION
Retaining key employees in times of change
Many companies throw financial incentives at senior executives and star performers during times of change. There is a better and less costly solution.
9. MARKETING
Unlocking the elusive potential of social networks
To realize the marketing potential of virtual activities, you have to make them truly useful for consumers.
10. ORGANIZATION
Boosting the productivity of knowledge workers
The key is identifying and addressing the barriers workers face in their daily interactions.
Best Regards

ZULKIFLI HASAN
Amsterdam
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December 28, 2010
DR. ZULKIFLI HASAN
Anti-Islamic Finance Movement
Assalamualaikum,
Dear my weblog readers,
I am very pleased to share with you my brief article published in Utusan Malaysia, one of the Malaysian mainstream newspapers. This article nevertheless is written in Malay language. For full article, click
here
Enjoy reading!
Best Regards

ZULKIFLI HASAN
Cambridge University
Islamic finance news
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December 28, 2010
DR. ZULKIFLI HASAN
Tribute to the late Professor Ahmad Ibrahim
Tan Sri Datuk Professor Ahmad Ibrahim B.A., M.A., LLD. a.k.a. Ahmad bin Mohamed Ibrahim (b. 12 May 1916 Singapore – d. 17 April, 1999, Gombak, Malaysia). Educated at Victoria Bridge School, Raffles Institution, Raffles College, and Cambridge University where he graduated with first class honours in economics and law. Appointed a Singapore Magistrate in 1946, District Judge and Magistrate in 1955, he became Singapore’s first State Advocate General in 1959, and Singapore’s first Attorney-General in 1966. He was awarded the Honorary Degree of Doctor of Laws (LL.D) from the University of Singapore on 5 June 1965. Known to the law fraternity as an expert on Muslim law, he drafted the Administration of Muslim Law Act which revamped the Syariah Court’s jurisdiction, and established the Islamic Religious Council of Singapore. From 1969 he worked in Malaysia as Professor of Legal Studies at the Faculty of Economics and Administration, University of Malaya, next as Dean of the Faculty of Law, University of Malaya, and then as Sheikh and Dean, Kulliyyah of Laws, International Islamic University, Malaysia.
Awards

5 June 1965 : Awarded the Honorary Degree of Doctor of Laws (LL.D) from the then University of Singapore (today’s National University of Singapore.

Malaysia Awards

1974 : Johan Mangku Negara (J.M.N) was presented by His Majesty the Yang Dipertuan Agong of Malaysia.

1979 : Darjah Yang Mulia Pangkuan Negara (D.M.P.N) with the title of Datuk, given by the Yang Dipertua Negeri of Pulau Pinang

1979 : Received the Allama Muhammad Iqbal Medal from the Government of Pakistan.

1987 : Panglima Setia Mahkota (PSM) by His Majesty the Yang Dipertuan Agong, with the title of Tan Sri.

1989 : Maal Hijrah Award

1992 : Tun Razak Award
Source:
http://infopedia.nl.sg/articles/SIP_529_2005-01-07.html
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December 27, 2010
DR. ZULKIFLI HASAN
Korean sukuk law rejection is a wake-up call
Korean sukuk law rejection is a wake-up call
By MUSHTAK PARKER | ARAB NEWS Available at:
http://arabnews.com/economy/islamicfinance/article223982.ece
The reported failure of the strategy and finance committee of the South Korean National Assembly chaired by Kang Ghil Boo in December to approve a finance bill introduced by the Ministry of Finance which would have given tax neutrality to alternative financial products such as sukuk (Islamic securities) is a wake-up call for the global Islamic finance industry.
The Ministry of Finance had proposed a revision to the taxation regulations with the aim of affording sukuk the same tax relief as conventional bonds to ensure that South Korean issuers would receive the same tax advantages as those applied to conventional bond issuers.
South Korean capital markets sources preferred not to comment on the development which they consider politically and socio-religiously sensitive, although some of them privately expressed dismay over the development especially after the subcommittee of taxation of the very strategy & finance committee had already approved the changes in principle.
It is no secret that some National Assembly parliamentarians have been bombarded with Islamophobic lobbying from powerful Christian evangelical groups, some of which have close links with their US counterparts. These include the prominent Korean Association of Church Communication. The objections to the facilitation of Islamic financial products in South Korea is based on irrational and misinformed fears that such products would generate a flow of funds for terrorist organizations through a web of Muslim charities.
Irrespective of the motives of the people behind the objections in South Korea, the reality is that the Islamic finance movement, despite the impressive growth of the global industry over the last three decades, is still a highly parochial and insular one still largely engrossed in talking to itself and to its principal immediate stakeholders — the shareholders, investors and its regulators.
Outside this limited stakeholder paradigm, there is hardly much interaction with other equally important stakeholder groups — the government policy-makers, national treasuries or finance ministries, parliamentary finance committees, and consumer groups and watchdogs.
Whatever interaction there may be in the Islamic finance space is limited to the memorandum of understanding between regulators, or between governments in a general economic and financial framework, or cooperation between educational and training institutions. When last did a parliamentary delegation from an Islamic Development Bank (IDB) member country discuss Islamic finance with a sister parliamentary group from another IDB member country, let alone with a non-IDB member country? How often is Islamic finance policy discussed as a banking and finance issue between intra-IDB member country policymakers and treasuries?
Unfortunately, the sector is not used to thinking outside the black box which reflects its entrenched parochialism.
Even Malaysia, so often championed as the most proactive country in supporting the Islamic finance industry, has failed to rise to the occasion on a number of occasions. Malaysian Prime Minister Mohd Najib Tun Abdul Razak hosting South Korean President Lee Myung-bak, leader of the ruling Grand National Party, on a state visit to Kuala Lumpur earlier this month did not even raise the issue, not even as an inquiry, in their bilateral talks which took place in the aftermath of the failure of the National Assembly top adopt the tax neutrality recommendations for sukuk. The topic would have been pertinent amongst two long-standing friendly nations — after all the two leaders were celebrating the 50th anniversary of the establishment of diplomatic relations between their two countries.
Cooperation in the Islamic finance space was not even on the agenda especially given the increasing cooperation between South Korean firms such as Woori Investment & Securities Co. and Korea Investment & Securities and Malaysian firms in recent years. Both Bank Negara Malaysia and the Securities Commission Malaysia, the country’s banking and securities regulators respectively, have also penned MoUs, including cooperation in the Islamic finance space, with their Korean counterparts over the last year or so. Bilateral trade between Malaysia and South Korea currently totals $16 billion per year.
Similarly, when Indian Prime Minister Manmohan Singh was on an official visit to Malaysia a few weeks ago, Najib once again failed to officially bring up the question of cooperation in the Islamic finance space to help facilitate access of such products to India’s 200 million plus Muslim population and others interested in ethical finance, perhaps even under financial inclusion policies.
Right wing Hindu nationalist groups have in the past expressed similar antagonism against and opposition to the introduction of Islamic financial products on the ground that it unduly favors Muslims in India.
Another difficulty in India is at the sate level, where communist-inspired legislatures and administrations, for instance, are against the introduction of Islamic banking for ideological reasons. This does not detract from the fact that they do allow conventional banks, the very epitome of the market-based capitalism, supposedly the sworn enemy of socialism. Not surprisingly, in April this year the Kerala High court directed the state government and its institutions not to promote and invest in the Kerala State Islamic Development Corporation, a Shariah-compliant finance company, aimed at developing infrastructure in the state and attracting inward investment from the Middle East and Southeast Asia.
South Korea of course is not unique in experiencing domestic political problems over the introduction of enabling laws or amendments to existing laws to facilitate Islamic financial products on a level playing field to equivalent conventional financial products. India and France, where a court last year refused to allow Shariah-compliant state financing to be extended to credit unions and SMEs (small-and-medium-sized enterprises) on the grounds that France was a secular country, have had there share of market access impediments.
This in contrast to the highly informed attitude shown by the Christian Finance Action Groups in the UK Treasury’s public consultation on the inclusion of tax neutrality measures in the finance bills of 2009 and 2010 for a spate of Islamic financial products including Alternative Financial Investment Bonds (AFIBS) — the UK Finance Bill term for sukuk — and Diminishing Musharaka used in housing mortgages.
In fact, in the UK legislation the word Islamic does not appear at all. Instead the bill talks about alternative financial products with similar economic characteristics to bonds or bills or housing finance. Perhaps herein lies the lesson for the South Korean lawmakers, for seeing Islamic finance as a religious phenomenon rather than an alternative ethical financial offering open to all irrespective of religion, is clouding their understanding of what Islamic finance is all about.
A failure to correct this perception may hamper any semblance of Islamic finance activity in the South Korean market, albeit limited, and perhaps more importantly may limit the access of South Korean corporates and financial institutions to the Islamic finance market, which has estimated funds under management in excess of $1.2 trillion. One estimate puts potential sukuk issuances out of South Korea over the next two years at $1 billion as local corporates seek to diversify their sources of funding in a difficult international credit market.
At the same time the only trade deficit Seoul has is with the oil-exporting GCC countries on which South Korea heavily relies on to drive its industrial and economic machinery.
In terms of population, the fears of the rejectionists too are unfounded. Out of a 50 million or so population, local Muslims account for less than 40,000, with another 100,000 Muslim foreign workers employed in the economy. In contrast Buddhists account for 24 percent of the population, followed by 19 percent for Protestants and 11 percent for Catholics.
Regards

ZULKIFLI HASAN
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December 27, 2010
DR. ZULKIFLI HASAN
A Must Read Interview with Sheikh Yusuf al Qaradhawi
A Conversation with Sheikh Yusuf Al-Qaradhawi
By Huda Al-Saleh Available at:
http://aawsat.com/english/news.asp?section=3&id=23563
Riyadh, Asharq Al-Awsat- In an extensive interview with Asharq Al-Awsat, Sheikh Yusuf al-Qaradawi revealed that he turned down the post of “Muslim Brotherhood guide” on numerous occasions, preferring to remain a guide for the nation. Al-Qaradawi also revealed that he believes that the traditional Salafi trend has become divided into several schools of thought, some of which are very close to the Muslim Brotherhood Group.
Sheikh al-Qaradawi also stated that the Islamic jurisprudence crisis relating to women’s issues cannot be attributed to Islam, but that it is a crisis in understanding these issues by some people.
The Following is the full text of the interview:
[Asharq Al Awsat] Your Eminence, allow us to start with your assessment of the current crop of Islamist Movements, particularly regarding the issue of secrecy and the lack of transparency?
[Al-Qaradawi] First of all, we would like to ask: What is the meaning of the political Islamist movement? I have the book, “Priorities of the Islamist Movements,” in which the Islamist movements are defined as organized collective popular work to serve Islam. The work has to be popular and non-official; also it has to be collective and not individual, because the individual work can never achieve great aims; it also has to be organized with leadership and grassroots, and its aim has to be to make Islam victorious; moreover the Islamist movement has to have links to politics, because it is not possible to raise the status of Islam unless it has influence and impact. In the life and nature of Islam there is call, state, creed, Shariaa, worship, dealings, faith, and worldly life; in order that this is achieved, Islam has to be linked to politics.
[Asharq Al Awsat] What about the secret work of the Islamist movements?
[Al-Qaradawi] Not all the Islamist movements, as I describe them, are based on secrecy. This depends on the countries in which these movements operate; if they are countries that allow work to support Islam, and such work is not legally or constitutionally banned, then the groups work openly. There is the example of the Jamaat-e Islami in Pakistan, which was established by Mr. Abul A’ala Maududi; its nature since it was established has been to work openly and publicly. As for the Muslim Brotherhood, it is described as a banned group because the state does not allow Islamist work in public, and also prevents the establishment of a party that is linked to Islam on the pretext of banning the establishment of parties on religious bases.
Here I wonder, are the religious people banned from practicing politics and participating in the building of the country?! There is no doubt that this is a crime, because religion is the essence of life, and the religious individual has the right to participate in building the country through his personal opinion, be it political, economic, educational, or health opinion. If the state prevents the practicing of politics, then this will certainly lead to underground work.
I was asked by a state security officer at a meeting about my opinion of the Muslim Brotherhood in Egypt, and I called on him to grant the group the freedom to work openly. Why is the Muslim Brotherhood prevented from establishing a party?
If the groups are banned from working publicly, they will start to work underground. The Islamist groups might be forced to work secretly. This is an unhealthy situation, because whoever works in the open can be held to account for his actions, and you can criticize him, but how can you hold to account whoever works in secret?
[Asharq Al Awsat] Are governments exaggerating the dangers of political Islamist movements, because of the fear that these movements one day might demand their right to govern?
[Al-Qaradawi] Sometimes the apprehensions can be correct, but at other times they only are mere illusions. Many of the existing governments now do not have any popular support; they are governments that are hated by their peoples, and they govern their countries by brute force, and martial and emergency laws rather than governing through the consensus of the people. It is possible that they hold elections in the name of democracy, and establish parliaments; however, the fact is that they do not express the satisfaction of the people as these government rig the elections. As an old socialist has said: Elections in the socialist countries are a “one-horse race,” and hence the result is that the candidate wins the famous four nines (99.99 percent).
[Asharq Al Awsat] What are your thoughts on what some are describing as an internal split within Islamist movements between patriotic and revolutionary divisions?
[Al-Qaradawi] Splits happen frequently, whether in Islamist or non-Islamist movements. This is because there are those who do not like continuous silence, and they have violent and revolutionary character, and hence they split, and establish another group whose course is violence. However, what is important in all this is the mother group, which in many cases is the one that remains, and the splinters become unable to do anything, and they dissolve in society.
[Asharq Al Awsat] But why do Islamist groups fail in implementation?
[Al-Qaradawi] This is not restricted only to the Islamist groups. All the idealistic movements that have principles for which they call, when the time comes for implementation the idealistic call becomes one thing, and the implementation becomes another. This is the nature of man himself, and the nature of human beings. Not all movements are like this, and it is wrong to generalize this judgment; nevertheless, the Islamist movements remain better than others, because religion protects from severe deviation; all democrats are the first ones to encroach upon the principles of democracy.
[Asharq Al Awsat] Let us move to the current relations between the Muslim Brotherhood, and traditional Salafism. Recently a form of competition has started to emerge between the Salafi tendency of the Muslim Brotherhood on both the political and jihadi arenas, and this competition has been spread even within the ranks of the Muslim Brotherhood themselves. What do you say about this?
[Al-Qaradawi] This is true. The Muslim Brotherhood tendency is a broad one. Sheikh Hasan al-Banna, the founder of the Muslim Brotherhood, when describing the group says that it includes all the concepts for which all groups call. He says that it is a Salafi movement as it calls for returning to the Koran and Sunnah, it is a Sufi tendency as it calls for purifying the hearts and returning to God, it is a Sunni way that is based on honoring the Prophet’s companions and on the work of the Sunni school of thinking; moreover, it is a political body, a sports group, a youths league. The group includes all the reformist concepts. The advantage of the Muslim Brotherhood lies in its comprehensive character and its balance, as it does not exaggerate in supporting one tendency at the expense of another. For instance, the Salafi tendency sometimes prevails over the Muslim Brotherhood; this tendency adopts a hard-line attitude about issues including the interpretation of God’s qualities, the arguments between the Salafi and the Ash’ari [Sunni sub-sect believes that that man does not have the power to act before he actually acts and that God creates this power in him at the time of action], the Maturidi [Sunni sub-sect believes that before the action man has a certain general power for action but that this power becomes specific to a particular action only when the action is performed], and others. Thus, the Salafis enter the arena, and these issues and others become the focus of a major debate, arguments, and fighting. This exists in particular in the Gulf countries, where the Muslim Brotherhood tendency has been influenced by the Salafi tendency.
[Asharq Al Awsat] But the relations between the Salafis and the Muslim Brotherhood have not been good, and these relations have become more critical in the case of the traditional Salafi after Hamas entered the political arena?
[Al-Qaradawi] The traditional Salafism has become several schools of thinking, and is no longer a single school. There is a Salafi movement that is close to the Muslim Brotherhood, and now there are those who say to the Salafis: Now you are talking like Al-Qaradawi. There are Salafis who have become close to centrism, which is based on combining the opposites, combining mind and matter, combining the spirit and the material, sometimes interpreting and at other times abstaining from interpretation, and combining intellect, action, religion, and politics. Moreover, we cannot disregard the development of the Salafis; in the past they did not talk about politics, but now they participate in the political battles and the elections after they reproached the Muslim Brotherhood for a long time for doing so. The Salafis also have developed in several jurisprudence issues, such as “photography,” which they used to consider one of the major crimes, but now they consider it allowed.
[Asharq Al Awsat] Is this change due to enlightenment, or has reality imposed this change?
[Al-Qaradawi] There is no doubt that the reality has imposed change on them, including getting in touch with the world, and their travel to the world countries, after a large number of them used never to leave their own countries, which was the cause of not changing their thinking. When the Salafi goes out, and gets in touch with the various peoples, he definitely will revise his views. Also there are those whose reading has expanded, and got acquainted with books they never expected to read at any time. Man is not a stone, and there are many influences that are bound to cast their shadow on the individual.
[Asharq Al Awsat] Has the Muslim Brotherhood abandoned the jihad currently represented by the Hamas Movement?
[Al-Qaradawi] The groups that have been based on jihad, such as the jihadi or Salafi jihadi groups have been established against the Muslim Brotherhood. The first jihadi group was established as opposing the Muslim Brotherhood, and accused it of betraying the principles. Such groups have carried out some acts of violence against the Jews, the British, and some citizens, such as the case of Al-Khazindar [In March 1948, members of the Muslim Brotherhood secret apparatus assassinated a judge, Ahmad al-Khazindar Bey, who had given a prison sentence to a Muslim Brother for attacking British soldiers]. We said to them: We have tried such things, but they have not been helpful, and we have not gained anything out of them other than detention, suffering, and victimization.
Man ought to be able to change his plans on the basis of what he sees. All Islamist movements are entitled to try for themselves, and start from zero until they reach the conclusions of the preceding groups. The jihadis who reproached the Muslim Brotherhood for some issues, have gone back, retreated, considered themselves to have been wrong, and issued more than 12 books most of which are revisions, including the Islamic Group in Egypt, and many others that are based on violence, or use military force against the governments or against the citizens themselves.
[Asharq Al Awsat] Sheikh Ahmad Yassin subscribed to the principle that his movement should not engage in any political activities. He stood by this principle until he was assassinated. After Hamas won the elections, and joined the political process, does the current situation in Palestine prove the correctness of the stance of the Hamas founder?
[Al-Qaradawi] The political issues are subject to improvisation and change; they are not firm principles, but they are viewpoints that change with the change of situation and circumstances. Hamas’s refusal to join the political process and the elections has its circumstances. However, when Hamas discovered that there is someone who was going to usurp the state, encroach upon it, and that its members would become prisoners, it decided to fight the elections. Hamas won the elections contrary to the expectations of its opponents; thus the elections proceeded without rigging, contrary to many of the elections that take place in the Arab and Muslim countries.
[Asharq Al Awsat] Recently Sudan failed to keep its southern province. The secession is taking place under the influence of an Islamist address by Al-Bashir, who threatens to apply Islamic Shariaa in the south. Are Al-Bashir actions an embarrassment for Islamist groups?
[Al-Qaradawi] First of all, Al-Bashir will not apply Islamic Shariaa in the south, because any region that does not contain a Muslim majority does not have to apply the Shariaa, as the case is in South Sudan. Shariaa only applies in the regions that have Muslim majorities. The application of Shariaa is not what has led to the secession of the south; there are numerous reasons for this secession, which started with the British occupation that isolated South Sudan from North Sudan, and considered it an independent state, as the northern citizen would not be able to enter the south without special procedures, and the south was instilled with the culture of hating Khartoum. However, Sudan has not exerted any effort since its independence to combat what the colonialist powers had entrenched, and to change the inherited concepts; moreover, there are schemes plotted for that purpose.
[Asharq Al Awsat] Are you in favor of the conspiracy theory?
[Al-Qaradawi] I am not in favor of the conspiracy theory. However, the issue cannot be ignored. The reality has proved that there are conspiracies that scheme to secede the south from Sudan. Unfortunately, the world around us is talking in the language of blocs, and the scattered entities are getting together; however, the Arabs and Muslims still are in a state of increasing fragmentation and division. Europe that had fought each other, has found its interest in uniting and disregarding the entire past, contrary to what we do.
[Asharq Al Awsat] Have you been offered the post of president of Al-Azhar?
[Al-Qaradawi] No, never, and it can never be offered to me at any time.
[Asharq Al Awsat] What about the post of the general guide of the Muslim Brotherhood?
[Al-Qaradawi] It has been offered to me several times, but I personally declined.
[Asharq Al Awsat] What were your reasons for declining?
[Al-Qaradawi] I found that it would be better for me to be a guide for the nation in general, with all its groups and tendencies, rather than be a guide for one of the groups, because this is more beneficial.
[Asharq Al Awsat] Was there government pressure involved?
[Al-Qaradawi] No, nothing like this.
[Asharq Al Awsat] What is your personal opinion of the attendance by Recep Tayyip Erdogan of Ashura [anniversary of the battle of Karbala and martyrdom of Imam Hussein Bin-Ali, 10 Muharram every Hegira year] celebration in Turkey? Is there a Shiite invasion of the Sunni cities?
[Al-Qaradawi] With regard to the Shiite invasion, I have said it repeatedly that in order to achieve effective rapprochement among the two schools of thinking, we ought to refrain from promoting one school of thinking in the societies of the other school. Because of this, the Shiites have become angry with me, especially after I called on the Sunni ulema to strengthen the Sunnis with any culture that protects from this invasion. This is because the Shiite school of thinking is trained for preaching their creed, and allocating large funds for this. Moreover, the Shiites have behind them a country to guide them.
With regard to Turkey, there are those in Istanbul who are known as Alawi [Shiite sub-sect, and an offshoot of the Shiite Twelvers], and perhaps they are the ones who celebrated Ashura. The attendance by Recep Tayyip Erdogan definitely was due to political reasons, especially as he is known for his skill and diplomacy; it is an attempt to win the hearts of all Turkish sides, especially the Alawi, the same as he did with the Kurds.
[Asharq Al Awsat] From an Islamic jurisprudence perspective, why is there always a crisis over every issue related to women, as it became apparent in Saudi Arabia recently over the work of women as “cashiers”?
[Al-Qaradawi] The crisis cannot be attributed to the Islamic jurisprudence. It is a crisis of some people in understanding these issues. The Salafi tendency was one of the most hard line about issue; however, recently new ideas have started to enter the tendency, and to create some kind of flexibility. The best proof of this is the conference of Islamic University in Medina to present the efforts of the Kingdom to serve the Islamic issues, as there was distinguished presence of women, and they participated in the research work and verbal interventions. This was the first time I saw such participation. Moreover, some time ago, I read about the discussions of the issue of “women driving cars,” the discussions took place publicly, which showed the development of the situation and the gradual steering away from rigidity. With time, the viewpoints of such issues will get closer.
[Asharq Al Awsat] Can you give us your opinion on two controversial issues; the mixing of the sexes and listening to music?
[Al-Qaradawi] What is meant by mixing of the sexes? Sometimes the term suggests something different from what is intended. This is as if it is mixing two issues together. If we are talking about man meeting woman in the mosque, as they meet in pilgrimage, mini-pilgrimage, scientific institutions, and scientific lessons, Islam does not prevent this. There are no mosques for women; what is known as Women’s Gate at the Prophet’s Mosque was ordered by the honorable Prophet, God’s prayer and peace be upon him, in order to prevent men brushing against women. Islam has not ordered the existing severe separation between the sexes, because man is from a woman, and woman is from a man. God Almighty says: “The Believers, men and women, are protectors one of another: they enjoin what is just, and forbid what is evil [Sura Al-Tawbah, from Verse 71].” Therefore, a woman has the right to enter the parliamentary and Shura councils. Women are half the society. Why can man decide the affairs of women, while women cannot decide and participate in deciding their own affairs?! When there is a need for mixing the genders in worship, education, or social activities, it is imperative to observe the Shariaa controls, such as absence of privacy, absence of excessive makeup, and observing the necessary ethics of lowering the eyes, and politeness in talking walking, and movement in order to prevent the situation from becoming chaotic.
[Asharq Al Awsat] What about singing and music?
[Al-Qaradawi] Previously, I wrote a book about singing and music in which I allowed singing and listening to music. This is an issue over which the faqihs, past and present, have disagreed, and over which many books have been written. The fact is that singing, whether or not accompanied by a musical instrument, is allowed, but under controls including that its contents do not contradict the creed, Shariaa, and Islamic ethics such as mysteries of Iliya Abu-Madi, which were sung in colloquial by Muhammad Abdal-Wahhab in his song “Without Asking Why;” the poetry of Abu-Nuwwas that says [poetry] “Do not blame me, because blame is a temptation, and cure me with what was the illness;” the song “The one with daring eyes;” or the song “Life is a cigarette and a drink.” Also the way of performing ought to steer away from wantonness. This also is linked to women, as it is allowed to listen to women, as there is nothing wrong in listening to a woman singing “Beloved mother?” The honorable Prophet listened to two women slaves. However, women’s voices ought to steer away from wantonness and arousing lust. The controls include that singing should not be coupled with something prohibited, and hence the quantity of listening ought to be observed, and there ought to be no excess in listening.
[Asharq Al Awsat] Your Eminence, your relations with the Salafis in the past has gone through major tensions. How are your relations with them now?
[Al-Qaradawi] Now, they are good relations. Here I am today in the country of the Salafi. It is clear that my relations with all are as good as we might wish with all age groups. Moreover, I do not adopt a hostile stance toward Salafi tendency; it is merely a stance of criticism in some aspects. I always call on everybody to adopt centrism. I also am in favor of Sufism. It is imperative to adopt what is best in Sufism, as the Sheikh of Islam Ibn-Taymiyah and Imam Ibn-al-Qayyim did; they were among the greatest Sufis, but they rejected from Sufism what is inappropriate. Personally, I call for “making Sufism into Salafi” and “making Salafi into Sufi.” The Sufi takes from the discipline of Salafi in not following the fabricated Hadith, polytheist rites, and tomb-side rites, and we want the Salafi to take from the Sufi tenderness, spirituality, and piousness. From this mixture we get the required Muslim.
[Asharq Al Awsat] With whom among the Saudi Sheikhs do you have special relations?
[Al-Qaradawi] Recently I had a meeting with my friend Sheikh Salih Bin-Humayd, preacher of the Kaaba Mosque and chairman of the Supreme Judicial Council; this is in addition to Dr Muhammad al-Aqla, president of the Islamic University in Medina; Sheikh Abdullah Bin-Mani, who is an old friend. I have great amicable links to the Saudi mufti, and I met him when he was first appointed as Saudi general mufti. The mufti said to me that he was a reader of my books, including “Imperativeness of the Islamic Solution” and “The Imported Solutions,” in addition to my books in political thinking. Also I had great amicable relations with Sheikh Abdulaziz Bin-Baz, God have mercy on his soul.
[Asharq Al Awsat] What about Sheikh Salman al-Awdah?
[Al-Qaradawi] (Laughs) He is one of my closest friends, and they consider him a follower of Al-Qaradawi’s course.
[Asharq Al Awsat] And Sheikh Hasan al-Saffar?
[Al-Qaradawi] There are good relations between him and me. I have met him recently in Qatar, and I sent him a letter of thanks when he denounced the stance adopted by the Kuwaiti man against Lady Aishah [Prophet’s wife], God be satisfied with her.
[Al-Salih] Have you seen Al-Jama’ah series, in which a characterization of the founder of the Muslim Brotherhood Group, Hasan al-Banna, was presented, and which was shown on the television screens last Ramadan?
[Al-Qaradawi] The fact is that I did not see it, because I was busy, but I saw a few sections of it, and I was told about it. It seems to me that it was not fair in presenting the life of Al-Banna, it exaggerated some issues at the expense of others, most prominently is that the series ended before his death, while it should have ended with the end of Hasan al-Banna and his assassination. The series ended without mentioning his assassination in order not to condemn his murderers.
[Asharq Al Awsat] How has age changed Sheikh Al-Qaradawi?
[Al-Qaradawi] There is no doubt that it added more maturity. The longer one lives, the more his experience increases, the more his reading increases, the deeper his insight gets, and the more his maturity increases. As they say, life is the best teacher, and life is a school for anyone who lives it with open eyes and mind.
[Asharq Al Awsat] How do you describe yourself?
[Al-Qaradawi] I am one of the soldiers of Islam. I am a soldier of God Almighty fighting with knowledge, work, and call for God. I wish to conclude my life by martyrdom for the sake of God. We have a well-known prayer: “O God, we beseech you to grant us happy life, martyr’s death, winning in judgment, and victory over the enemies.” Praise be to God, we are happy with our belief, and I wish that God concludes my life with martyrdom, and that my martyrdom be at the hand of a non-Muslim.
[Asharq Al Awsat] Do you suspect that one day your martyrdom will be at the hand of a Muslim?
[Al-Qaradawi] This might happen by a crazy person.
[Asharq Al Awsat] Have you ever been threatened?
[Al-Qaradawi] Only the Jews have threatened me publicly. I have not been threatened by a Muslim. However, it is not excluded that someone affiliated to the extremist groups would come and want to get rid of me.
[Asharq Al Awsat] Your Eminence, who do you miss?
[Al-Qaradawi] I miss most of my friends, who have gone one after the other, and now I am alone. However, praise be to God, I feel very happy because people love me everywhere.
[Asharq Al Awsat] What are your thoughts on the latest fatwa by Ansar al-Sunnah al-Muhammadiyyah Group [Supporters of Muhammad Sunnah Group] about ElBaradei nominating himself as a candidate in the presidential elections, the fatwa that says that it is allowed for the guardian to detain, imprison, or even execute ElBaradei, because of his destabilization of the country and of the state security?
[Al-Qaradawi] No one is allowed to say this, because the Constitution has secured this and granted it to others (Al-Qaradawi means being a candidate in the elections).
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BLOG OF KNOWLEDGE (Shari'ah, Law, Islamic Finance and Muslim News)
Shari'ah, Law, Islamic Finance and Muslim News
March 23, 2012
DR. ZULKIFLI HASAN
Arab Spring leaves fertile ground for growth of Islamic finance
Arab Spring leaves fertile ground for growth of Islamic finance
By Charlotte Kan Available at:
http://www.zawya.com/story.cfm/sidZAWYA20120322043907/A_Shariah_Spring
In the countries swept by the Arab Spring, recent elections were dominated by Islamist parties. This will further encourage the development of the Islamic finance market, experts believe.
“The recent free elections in a number of the affected countries have shown a desire by the people to organise their financial affairs in a manner that reflects their religious beliefs,” notes Tariq Hameed, managing associate at Simmons & Simmons in Dubai.
In a report entitled “Blue Print for Islamic Finance Following the Arab Spring” published in February 2012, Hameed notes that the parties winning the most seats in the recent elections in Tunisia, Morocco, Egypt and Libya have all stated their support for Islamic finance.
“The countries affected by the Arab Spring will be expected to deliver economic solutions that directly affect the people that recently voted for them,” he argues.
Apart from the desire of the population to move towards a more religious society, there are several reasons why Islamic finance should proliferate in the countries that witnessed the protests of the Arab Spring.
First: the current lack of banking facilities.
A 2010 study by Dr Dhafer Saidane for the United Nations notes the proportion of people with access to banking services in some North African countries is extremely low – approximately 25% in Morocco and 33% in Tunisia.
Hameed notes only 10% of Egyptians have access to a bank. “There was a lack of offerings,” he says. “Many didn’t engage with the conventional banking system.”
For the new governments ready to introduce their people into the financial system, Islamic banking therefore represents an attractive alternative to the ‘conventional’, distrusted Western banking system.
“Introducing Shariah-compliant current and savings accounts would therefore be important to draw people into the financial system,” Hameed says.
In Tunisia, the country where the Arab Spring movement allegedly started in December 2010 in the wake of Mohamed Bouazizi’s self-immolation in protest of police corruption and ill treatment, steps have already been taken to develop Islamic banking and finance.
In its Finance Act 2012, Nahda, the Islamist party which has claimed victory in Tunisia’s October 2011 elections, has incorporated several changes to facilitate the spread of Islamic finance practices, including a special taxation framework for Islamic banking and the introduction of a regulatory framework for Islamic bonds.
The Tunisian government not only supports the development of Islamic finance, but also sees it as a tool to turn the country into a finance hub in North Africa.
In reality, the industry in the region is up for grabs. Islamic finance has so far failed to take off in North Africa, which currently has less than a 1% share of global Islamic banking assets, according to a report by consultancy McKinsey.
“There are three factors that account for the relative underdevelopment of Islamic banking in North Africa; first the limited development of retail banking generally; second the lack of knowledge of Islamic banking amongst potential clients; and third the absence of (the former) government support,” said the African Development Bank in a report on Islamic Banking and Finance in North Africa published late last year.
So with governments across North Africa now openly supporting Islamic Finance, this is likely to change.
Away from retail and commercial banking, one opportunity could come from the development in Islamic microfinance offerings, Hameed notes, as institutions will have to serve demand from rural communities and micro-enterprises.
“The same institution could also provide the community with Islamic micro-insurance (micro-Takaful) to help low-income families to protect against health risks and micro enterprises to protect against property risks,” Hameed adds.
Islamic finance could also provide an answer to the need for infrastructure projects, with successful Islamic financing of infrastructure projects already in existence in Bahrain, Saudi Arabia and Bangladesh, Hameed notes.
“Islamic finance can play a prime role in financing big projects in North Africa that require large investments and significant borrowing volumes,” said Tunisia’s former finance minister, Jalloul Ayed, during a July 2011 summit on Islamic finance opportunities in North Africa.
Tunisia itself has financing needs of around USD 40 billion over the next five years, Ayed said, and could soon create a sovereign fund called “Fund for the Generations”.
There is a substantial need for project finance in North Africa given the poor state of much of the region’s infrastructure. Existing Islamic project financing covering 24 schemes in North Africa worth over USD 2.4 billion has already been approved, according to the African Bank for Development.
The newly elected governments of Arab Spring countries know too well that investing in infrastructure and real estate – in particular, affordable housing, of which there is a severe shortage in North Africa, thus fueling growth and creating jobs – is the only to stabilize the region politically and enhance social cohesion.
Many experts believe Egypt will pave the way for the industry’s expansion in the region.
“Egypt will be a great force in steering Islamic finance in a different direction. We will see the development of new products as the market which Islamic finance will serve is a different clientele, and will be needed to solve different problems. Al Azhar University in Cairo should play a role in developing Islamic finance in the country,” argues Sahar Ata, a senior lecturer in Islamic finance at the London School of Business and Finance.
Egypt, the most populous state in the region, already has the highest proportion of Shariah-compliant assets in relation to total bank assets (around 5%). The country is “where Islamic finance has the greatest potential”, the African Development Bank said.
However, despite promising prospects, there remain challenges for the Islamic finance industry before the potential of these markets can be reaped, Hameed believes. Strengthening of consumer protection laws, clarifying governance, and establishing central Shariah boards for finance will have to be addressed, he argues.
Regards

ZULKIFLI HASAN
Trafalgar Square, London
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Al-Baqarah, 2:275
Calendar
March 2012

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T

W

T

F

S

S

1

2

3

4

5

6

7

8

9

10

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21

22

23

24

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Centre for Islamic Area Studies at Kyoto University

Durham Islamic Finance Programme

Harvard University Islamic Finance Project

IIUM Institute of Islamic Banking and Finance

INCEIF

International Institute of Islamic Economics

International Shari'ah Research Academy for Islamic Finance

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LAA 3064

MOOT/MOCK AND PLACEMENT

LEGAL PROFESSION IN ISLAMIC

PERSPECTIVE AND ITS HISTORICAL

BACKGROUND

CONTENTS

LEGAL PROFESSION IN ISLAMIC

PERSPECTIVE

ISLAMIC HISTORY

MALAYSIAN LEGAL HISTORY

LEGAL PROFESSION IN

ISLAMIC PERSPECTIVE

The Holy Quran :

Surah Al-Anbiya (21) :78-79

“We also bestowed favors upon Daud and
Sulayman when the two were judging a case
regarding the field into which the sheep of
certain people had strayed by night and were
watching them to arrive at the right decision
although we had given wisdom and
knowledge to both of them” Verse 78.

Cont…

Surah Yusuf (12): 22-29

Case of prophet Yusof and Zulaykha.

“Yusof said: it was she who attempted to seduce me.

At this one accusing the other, one member of her

own family bore witness saying if his shirt is

ripped from the front, then she is speaking the

truth and he is lying. But if it is ripped from

behind then he is speaking the truth and she is

lying. Verses 26-27.

Cont…

Surah An-Nisaa (4): 105

Representation in giving testimony in law of
evidence.

“ We have revealed to you book with the truth so
that you may judge between people in accordance
with the right way which Allah has shown you so
be not an advocate for those who betray trust, seek
Allah forgiveness, surely Allah is forgiving ,
Merciful” verses 105-106.

Case of Prophet Harun assisted Prophet Musa.

Hadith

Hadith Ummu Salamah reported that the messenger of
Allah declared;

“I’m only a human being and you bring your disputes
to me Perhaps some of you indulge in logic to prove
your assertions and it may be that I give my decision or
the strength of your argumentation. Should I therefore
give one that which his brother entitled to he should
not take it, for it would be as if I am giving him a coal
of fire.”

Hadith:”If anyone walks with an oppressor to
strengthen him, knowing that he is an oppressor he has
gone forth from Allah”.

Practice of The Companions

Saidina Ali was known as the best representative
amongst the sahabah. For instance in case of zina
where a pregnant woman who had been married
confessed that she has committed zina and asked
khalifah Umar to stone her to death

In another case where a young lady who fell in
deeply love with a young man but unluckily that
young man rejected her loves. She planned a
device to harm him by accusing him for an
offence of rape.

Kaab Bin Sur- a woman complained about her
husband.

Required/Recommended Reading

Ahmad Ibrahim and Mahmud Saedon, ‘Judges and
Lawyers under the Shariah’ in Aidit Ghazali (ed), Islam
and Justice, 1993, IKIM, Kuala Lumpur.

Baharudeen Abu Bakar, Amalan Undang-undang Dalam
Mahkamah Shariah’ in Abdul Monir Yaacob (ed),
Undang-undang Keterangan dan Prosedur di Mahkamah,
1995, IKIM, Kuala Lumpur.

Minhaj Et Talibin by Imam Nawawi-Administration of
justice-Book 5.

Sunan Abu Dawud, Kitab Al-Aqdiyyah pp. 1013,1016,
1232.Muwatta Imam Malik, Kitab Al-Aqdiyyah p. 313 and
Ibn Qayyim al-Jauziah, Al Turuq al Hukumiyyah pp.
68,70,79,83-84.

ISLAMIC HISTORY

Justice in the Prophet’s Period.

-Appointment of Saidina Ali, Muadz Bin Jabal and
Unais as qadhis.

-Prophet himself head of the state and at the same
time head of the judiciary

-Appeals will be referred to prophet himself. There
was no specific buildings and mostly conducted
trials in mosque. Judges are paid through baitul
mal and prophet always gave advise to them.
Example Itab Ibn Al Usaid the governor of mecca
was paid ten dirhams  a day.

Justice in the Period of

Khulafa Ar-Rashidin

Saidina Abu Bakar As-siddiq.

- Head of the state and at the same time head of the
judiciary

- The sources of hukm or decision are Quran and
Sunnah, then gathering the companion  in order to
deduce ruling by way of ijma’. If no rulings be
agreed upon unanimously Abu Bakar use his own
ijtihad.

Cont….

Saidina Umar Ibnu Khattab

- The first inventor the system of separation of
powers between governor and judges. Governors
and judges were different personnel.

- Umar gave his advise to judges verbally and
through letters. Example his famous letter to Abu
Musa Al-Ashaari.

- The court administration was improved.

Cont…

Saidina Uthman Ibnu Affan

- He is the only judge in the Medina. Ali
Talha and Zubair were his advisors .

- Uthman delegated the power to appoints
judges outside Medina to governor.
Doctrine of delegation of powers was
implemented.

- Specific Court building was built.

Cont…

Saidina Ali Ibnu Abi Talib

- He moved the seat of government from

Medina to Kufah.

- Head of the state and judiciary.

- Introduced a municipal guard called Shurta.

Justice in the Umayyad Period.

The caliph appointed judges in capital while
judges elsewhere by the governors

Jurisdiction of the judges including duty to
supervise the execution of the punishment.

Judges started to record their judgment in writing
in order to prevent litigating parties from disputing
judgment given orally.

Justice in the Abbasid Period

749 A.C/132 A.H

Judges were appointed based on the mazhab of the

populates.

Caliphate and judiciary were separated.

Qadhi Qudhat (Chief Justice) was delegated with

the power to appoint and dismiss judges, hear

appeals and review judge’s decision, administer

the judicial institutions and give advise to the

caliph in judicial and legal matters. First Qadhi

Qudhat was Abu Yusof of Hanafi school.

Turki Uthmnaniyah

Islamic empire influenced by western.

Western legal profession started.

Interpreter in court known as “vakil”.

Required/Recommended Reading

Dr. Mohamad Muslehuddin, “Judicial System of Islam Its

Origin and Development”, Islamic Publications Private

Ltd, Lahore Pakistan 1991.

Farid Sufian Shuaib, Tajul Aris Ahmad Bustami & Mohd

Hisham Mohd Kamal, Administration of Islamic Law in

Malaysia Text and Materials, 2001, MLJ.

Dr. Ahmad Abdul Muniem Al-Bahai, Tarikh Al Qada fil

Islam.

MALAYSIAN LEGAL HISTORY

The position of Islamic Law Prior to The
Reception of English Law.

(1) Malacca Sultanate

- Sultan appointed qadis as their advisers in religious
matters.

- Islam was the state religion of Malacca. Laws of
Malacca and Maritime Laws of Malacca.

- Malacca Laws consists of islamic family law,
criminal law, sale and evidence and etc.

- Penalties according to hukum Allah and Hukum
Adat (patriarchal and matriarchal).

Cont…

Portuguese

- Governor had supreme command over all
inhabitants

- Assisted by Ovidor (CJ), viador (mayor),
the Bishop.

- Malays came under the jurisdiction of the
Bendahara, Malays in Naning and Linggi
were controlled by a Temenggong.

Cont…

Dutch

- Governor had supreme authority  over all
inhabitants

- Assisted by Council consisting of the Collector,
Mayor. Another council is Council of Justice.

- Laws regulations were issued by the central
government in Holland.

- Leave the Malays to practice their own customs
and law.

The position of Islamic Law

during British Period

British influence most of the legal system in Malaysia. 1807- First
Charter of Justice 1826- Second Charter of Justice The effect is
Islamic law had lost its significant and was only applied in the
area of Islamic family law.

In 1937 Civil law enactment was enacted and introduced to FMS
and extended to SS. All civil cases were subjected to the English
law.

Mohammedan Marriage Ordinance 1880 was promulgated in
which it regulated the muslim marriage and divorce for straits
settlements until the Administration of Muslim Law Enactments
were introduced to cover all Malaya. The ordinance provides inter
alia Governor appointed the Qadhi. Appeals heard by the
Governor. The governor will appoint mufti to assist registrar in
Islamic law matters.

Hierarchy of Courts

Court of Penghulu

Court of Khathi and Assistant Kadhi

Court of Magistrates of the Second Class

Court of Magistrates of the First Class

Supreme Court (Formerly known as Courts of Judicial Commissioner);

The position of Islamic Law after

Independence Until Today

Article 4 (1)-Constitution is the supreme law and Article 3
(1)- Islam is the religion of the federation.

Ruler is the Islamic head of the state

Amendment to the Article 121 (1A) of the Federal
Constitutions.

Formerly the administration of Islamic law concentrated on
Majlis Agama Islam.

There are three authorities handling the Islamic law
matters in the states;

1. Majlis Agama Islam

2. Mufti

3. Shariah Courts

The Establishment of

the Syariah Court

Shariah Subordinate Court-kadhi

Shariah High Court- kadhi besar

Shariah Appeal Court- Chief shariah judge and 2 others

Jurisdiction of the Shariah Court

Muslim Courts Criminal Jurisdiction Act 1965-
any offence punishable with imprisonment for a
term exceeding 6 months or any fine exceeding
RM1000.00 or with both.

The act was amended in 1984 and the jurisdiction
has been extended to punishable with
imprisonment up to 3 years or fine up to
RM5000.00 or whipping up to 6 strokes or the
combination of all these.

Only covers Muslim and within state boundaries.

Cont….

Judges of the Syariah Court

- The ruler appointed the judge known as qadhi or qadhi
besar. Known as qadhi.

Syariah Prosecutor

-The ruler or YDPA with advise of Majlis has the right to
appoint Chief Shariah Prosecutor. At his sole discretion,
he has the right to start proceeding for any offence
committed at the shariah courts.

Peguam Syarie- The Majlis may on the payment of
prescribed fee admit persons having sufficient
knowledge of Islamic law to be peguam syarie to
represent any parties before any shariah court.

Lawyers in the Malaysian History

Legal system came into existence after COJ.
Fused Legal profession. There was no Bar to set
up and licensing control of lawyers.

1914 Legal profession Enactment- Established a
Bar Committee.

1947- Bar Council was established.

1976- LPA was passed- Establishment of
Malaysian Bar, Qualifying Board.

An advocate and solicitor can be Peguam syarie if
he fulfilled the requirements of Peguam syarie .

Issues

Lack of independence- peguam syarie,
judges, political interference.

No professional body as Bar Council

Lack of proper training

Civil court often interfere with the
jurisdiction of the shariah court.

Standardization of the Islamic law and
centralisation of the shariah court.

Required/Recommended Reading

Ahmad Ibrahim, Ahilemah Joned, Malaysian Legal
System, Dewan Bahasa dan Pustaka, 1995, Kuala Lumpur.

Farid Sufian Shuaib, Tajul Aris Ahmad Bustami & Mohd
Hisham Mohd Kamal, Administration of Islamic Law in
Malaysia Text and Materials, 2001, MLJ

Ahmad Ibrahim, Pentadbiran Undang-undang Islam di
Malaysia, IKIM, 1997, Kuala Lumpur.

Hamid Jusoh, The Position of Islamic Law In the
Malaysian Constitution With Special Reference To The
Conversion Case In Family Law, Dewan Bahasa dan
Pustaka, 1991, Kuala Lumpur.

Zulkifli Bin Hasan

Lecturer Faculty Shariah & Law

E-mail: zulkiflih@admin.kuim.edu.my

E-mail: zul361977@yahoo.com.