190KB***Thirty-Five Years of the Malaysian Judiciary Adjudicating
(2020) 32 SAcLJ 373 THIRTY-FIVE YEARS OF THE MALAYSIAN JUDICIARY ADJUDICATING ISLAMIC FINANCE MATTERS Since the introduction of Islamic finance in Malaysia three and half decades ago, the Malaysian judiciary has been confronted with various legal issues involving Islamic finance. While it is not the purpose of the article to provide an exhaustive list of decided cases1 in chronological order, the aim is to highlight the main issues impacting the practical aspects in the Islamic finance industry, namely, the issues of ibra’ (waiver), late payment charges, reference to the Shariah Advisory Council, enforceability of non-Shariah-compliant contracts and sukuk default. This is done through an analysis of reported court cases by the Superior Courts. It is found that the courts have adopted a pragmatic approach in dealing with Islamic finance matters of practical importance, hence providing clarity and certainty to the industry players. Mohd Zawawi SALLEH LLB (Hons) (Mal), LLM (Bristol); Judge, Federal Court of Malaysia. Mohd Johan LEE2 LLB (Hons), MCL (International Islamic University Malaysia), MA (Econs) (King’s College London), PhD (Monash); Advocate and Solicitor (Malaya); Syarie Lawyer; Advocate and Solicitor (Brunei). I. Introduction 1 Since its introduction in the 1980s, Islamic finance3 in Malaysia has continuously developed into a sophisticated sector, providing 1 See, for example, Mohd Johan Lee, Islamic Finance: Recovery, Rescheduling & Restructuring of Islamic Financial and Capital Market Products and Services in Malaysia (Malaysia: LexisNexis, 2nd Ed, 2019); Rusni Hassan, Ahmad Azam Othman & Norlizah Mokhtar, Islamic Banking in Malaysia: Cases and Commentaries (Malaysia: CLJ Publication, 2017); and Mohd Johan Lee, Islamic Banking in Malaysia: Shariah Theories, the Laws, Current Structures and Practices, and Legal Documentation (Malaysia: LexisNexis, 2017).
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