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The Shariah and Legal Framework of Islamic Financial System

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The Shariah and Legal Framework of Islamic Financial System SUSTAINING FINANCIAL STABILITY THROUGH SHARIAH GOVERNANCE FRAMEWORK Assoc. Prof. Dr. Rusni Hassan Deputy Dean IIUM Institute of Islamic banking and Finance International Islamic University Malaysia [email protected] ISLAMIC FINANCE INTELLECTUAL DOSCOURSE Organised by: IRICIEF KUIS & MARA Novotel Hotels & Resots, Melaka (18 -19 October 2016) 2 The Outline Islamic Finance: A Recap The Regulatory Aspects The Shariah Governance Framework ©Rusni Hassan 2016. All rights reserved. 3 Islamic Finance: A Recap Shariah principles are the foundation for the practice of Islamic finance through the observance of the tenets, conditions and principles espoused by Shariah. ©Rusni Hassan 2016. All rights reserved. Islamic Finance Features 4 Product Documentation Departure from development and requirement of conventional innovation guided Islamic products practice in by principles of that reflect product, legal Shari`ah, fiqh and “islamicity” of its requirement, tax ijtihad terms & conditions and accounting ©Rusni Hassan 2016. All rights reserved. The Shariah Framework of Islamic Finance 5 Islamic Finance is to adopt Shariah principles Iqtidadiyyah (Belief) Amaliyyah Islamic Finance is to reflect Shariah (Dealings components or aspects in all its activities COMPONENTS OF SHARIAH Islamic Finance is commercial transactions based on prescribed principles of Fiqh al- Akhlaqiyyah Ibadah Muamalat (Morality) (Worship) Muamalah Islamic Finance is to uphold the objectives of (Dealings) Shariah (Maqasid al-Syariah) ©Rusni Hassan 2016. All rights reserved. Islamic Finance in Contemporary Operating Environment – The Challenges 6 Dual-Banking / Financial System Leveraging on Conventional Banking/Financial Conventional Banking/Financial System Framework Business Model Operating Environment of Islamic Finance Debt-based, Collateral Based & Fractional Reserve Banking Risk Averse Fiat Monetary System ©Rusni Hassan 2016. All rights reserved. Islamic Finance in Contemporary Environment – What Need To Be Done 7 Application of Shariah compliant contracts eg: Murabahah, How is Shariah Musharakah, Ijarah etc Compliance being Offer Shariah compliant products & services which satisfy translated in form & legal technicalities the Contemporary Operating Finance & invest in Shariah compliant business portfolio Environment of IBF? Apply/use majority of conventional banking rules & products which are consistent with Shariah ©Rusni Hassan 2016. All rights reserved. Islamic Finance in Contemporary Environment – The Effect 8 Fitting-in Conventional THUS … banking/finance features has resulted the following: Expose IFIs to Shariah Non- Compliance Risk & THE NEED for Shariah Compliance and Governance Framework ©Rusni Hassan 2016. All rights reserved. Islamic Finance : 9 The RegulatoryAspects The growth and development of Islamic finance industry are supported through good governance and its comprehensive legal frameworks ©Rusni Hassan 2016. All rights reserved. Malaysian Islamic Finance: Development & Progress 2010 Strengthening regulatory 2005 framework 2000 Maturing & globalization Broader & deeper • 2009 : Enactment of Central Bank of market especially sukuk Malaysia Act 2009 1990 • Rule on full fledged (CBMA) Islamic subsidiaries 1980 Accelerated growth in • 2010 : Shari’ah • Islamic bank licenses to Governance market size & players • Introduction to sukuk foreigners (2005): Introduction & Framework (SGF) market • Guthrie Sukuk al • KFH, Al Rajhi, • 2012 : Enforcement Ijarah (2001) QIB, etc of the Takaful familiarization • Islamic windows (1993) st • 1 Malaysian Global • Moving towards globally Operational - BAFIA Sukuk al Ijarah (2002) accepted products: Framework (TOF) • Accelerated growth in • Experimenting new • Ijarah, Istisna’, • 2013 : Islamic • Development of market size & players product structures: Mudarabah, Financial Services Act markets, players & • Additional products Musharakah • BBA, Murabahah, 2013 products features: Ijarah, Istisna’, • “Pilot project”: • BBA, Murabahah, Mudarabah, • BIMB – IBA 1983 Ijarah, Wadiah, Musharakah • STMB – TA 1984 Mudarabah • More facilitative legal/tax • Limited products: • Intro of Islamic Capital regime – exemptions etc. • BBA, Ijarah – Market: financing • Equity, bonds, • Mudarabah, money market Wadiah – deposits ©Rusni Hassan 2016. All rights reserved. Islamic Finance & Shariah Compliance: Supporting Legal Framework 11 Central Bank of Malaysia Act 2009 “ Any financial business in ringgit or other Implementation of Legal & currency which is subject Regulatory to the laws enforced by Islamic Finance is to the Bank and consistent support be supported by with Shariah” effective regulatory framework to ensure Shariah compliance aspects of the Islamic Financial Legal & overall operations Services Act 2013 Regulatory “An institution shall at all support times ensure that its aims and operations, business, affairs and activities are in compliance with Shariah” ©Rusni Hassan 2016. All rights reserved. IFSA 2013: Towards Ensuring End-to-End Shariah Compliance 4 Birth of IFSA Royal Assent : Gazetted : Effective Date : 18 March 2013 22 March 2013 30 June 2013 Sec 6 IFSA : “The principal regulatory objectives of this Act are to promote financial stability and compliance with Shariah” ©Rusni Hassan 2016. All rights reserved. Regulatory Requirements On Shariah Compliance 13 IFIs shall at all times ensure Shariah compliance IFSA 2013 Shariah compliance refer to compliance to rulings of SAC Enhances shariah governance aspects of IFIs by Procedure for Sharian non-compliant activities codifying the (c) report to BNM (a) notified to SC (b) cease the activities shariah compliance within 30 days requirements and enforcement of penalties for non- compliance Penalty for non-compliant with the above liable to imprisonment not exceeding 8 yrs or fine not exceeding RM25 mil or both ©Rusni Hassan 2014. All rights reserved. Islamic Finance: 14 The Shariah Governance Framework Bank Negara Malaysia places great importance in ensuring that the overall Islamic financial system operates in accordance with Shariah principles. This is to be achieved through the two-tier Shariah governance infrastructure comprising two (2) vital components, which are a centralised Shariah advisory body at the BNM and an internal Shariah Committee formed in each respective Islamic financial institution (IFI). ©Rusni Hassan 2016. All rights reserved. Shariah Governance for IFIs Key Features of Shariah Governance “Shariah Governance system is a set of institutional and organisational arrangements through which Islamic financial institutions ensure that there is an effective independent oversight of Shariah compliance over the issuance of relevant Shariah pronouncements, dissemination of information and an internal Shariah compliance review.” IFSB-10 Guiding Principles on Shariah Governance Systems for Institutions Offering Islamic Financial Services ©Rusni Hassan 2016. All rights reserved. Aims Of Shariah Governance 16 PROCESS PURPOSE FUNCTIONS SG aims to ensure Shariah compliance in actuality i.e. SHARIAH CONCEPT Shariah legitimacy of ADVISORY products and/or Shariah compliant operations of IFIs SHARIAH STRUCTURE SUPERVISION SG is essential to gain confidence and trust of OPERATION SHARIAH stakeholders i.e. REVIEW/AUDIT perception of the INSTRUMENTS INSTRUMENTS & PRACTICES outsiders and reputation/ COMPLIANT SYARIAH TRULY public confidence Shariah Compliance aspects are to be observed throughout the process in developing/constructing the products/framework and to be supported by proper Shariah governance functions ©Rusni Hassan 2016. All rights reserved. Principles Of Shariah Governance Framework 17 Shariah Compliant Functions Oversight, Accountability Professionalism & Responsibility Sound and Robust Shariah Governance Structure Confidentiality Independence & Consistency Competency ©Rusni Hassan 2016. All rights reserved. Constituents of Shariah Governance 18 • Effective • BODs communication • Shariah • Rigorous & Committees efficient process; • Management • Disclosure • Employees ©Rusni Hassan 2016. All rights reserved. Roles of Key Functionaries To Ensure Shariah Compliance 19 Oversight role in ensuring Shariah compliance & due regards to SC’s decision BOD Oversight role to assist BOD & senior Oversight & management for prudent advisory role on management of TO by Actuary SC Shariah matters to ensuring/safeguarding ensure Shariah interest of takaful compliance participants Ensure business Enhanced statutory operations meet Shariah reporting obligations (Audit Auditors CEO requirements & & Shariah Audit) Reporting obligations to BNM & SC ©Rusni Hassan 2016. All rights reserved. Shariah Governance Structure 20 The Shariah governance structure shall be robust & supportive to the IFIs internal infrastructure to ensure effective overall Shariah compliant process ©Rusni Hassan 2016. All rights reserved. Shariah Governance Framework: The Centralised Approach 21 Two layer of Shariah Advisory Board to ensure Shariah Compliance and harmonisation of Shariah decision Shariah Advisory Council at the Central level (BNM) established under Sec 51 of CBMA 2009 SAC Highest authority to decide Shariah matters in Islamic Finance in Malaysia Shariah Committee at the respective IFIs Appointed by Board of Director SC Upon recommendation/approval of BNM ©Rusni Hassan 2016. All rights reserved. Shariah Advisory Council Establishment of Shariah Advisory Council • To ascertain the Islamic law on any financial matter Sec 51 (1) of CBMA & issue a ruling upon reference made to it • “The
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