The New Shariah Governance Policy Document (2019)

Posted on November 15, 2019 by Amir Alfatakh

SHARIAH GOVERNANCE POLICY DOCUMENT (2019)

One of the most anticipated documents by the industry is the renewed Shariah Governance Framework, which was last issued in 2011. Many were waiting with bated breath on what changes were made to the document. I had a quick look at it also and generally, there were a few fine-tuning done to existing regulations.

A quick summary of the points in the Shariah Governance Policy Document (2019) are as follows:

The responsibilities of the Board of Directors are to approve the policies regarding Shariah governance, oversee the implementation of SAC’s ruling and internal control framework, oversee the performance of senior management and promote a culture of Shariah compliance in the bank.
The Board of Directors also must interact sufficiently with the Shariah Committee including giving due regards to the Shariah Committee decisions, paying attention to facts and rational and the implication of implementing the decision, with proper conflict resolutions and record of all deliberations on the issues.
The Board of Directors must also assess the performance of the Shariah Committee formally, at least annually and ensure the remunerations reflect members’ accountabilities.
The key responsibilities of the Shariah Committee themselves are defined as follows:
1. Provide a decision or advice on the application of SAC ruling and BNM standards on Shariah matters
2. Provide a decision or advice on matters that requires a reference to be made by the SAC
3. Provide a decision or advice on matters that may trigger Shariah Non-Compliant event
4. Deliberate and affirm Shariah non-compliant findings
5. Endorsing rectification measures for Shariah non-compliance event
The Shariah Committee shall be accountable for the quality, accuracy and soundness in their decisions and advices.
The Shariah Committee must establish a robust methodology to guide decision making process including taking into account relevant business and risk practices.
If Shariah decides to place additional restrictions on the business in applying SAC ruling (meaning : stricter than SAC rulings), the bank must document the deliberation, obtain Board of Directors view on the decision, and immediately notify BNM on the decision.
The Shariah Committee must exercise objectivity in making a judgement or deriving a decision to avoid impairing professional objectivity. Sufficient time is to be devoted to prepare for and attend Shariah Committee meetings.
The Shariah Committee must continuously develop reasonable understanding of the business and keep abreast of the latest market and regulatory development, to be led by the Chairman of the Shariah Committee.
The Chairman of the Shariah Committee must be able to apply relevant procedures for Shariah deliberations, liaise with Board of Directors, ensure sound decisions are made, encourage healthy discussion on issues, and ensure maintenance of records supporting Shariah decisions.
Shariah Committee meetings must be conducted at least once every 2 months (at least 2 times a year for Islamic Banking Windows operations) and attendance of each member must be 75%. This information to be reported in the bank’s annual report.
Appointment of the Shariah Committee must fulfil the following:
1. the person is a Muslim
2. the person is “fit and proper“
3. the person is either Shariah qualified person or an expert possessing skills, knowledge and experience (to support the Shariah function)
Shariah Qualified Person means the person:
1. hold a minimum bachelor degree in Shariah which includes studies on Usul Fiqh (principles of Islamic Jurispruedence) or Fiqh Muamalat (Islamic transaction/commercial law)
2. possesses solid knowledge in Shariah with reasonable Islamic finance knowledge and experience
3. demonstrates strong proficiency and knowledge in written and verbal Arabic.
A Shariah Committee member shall not serve in the same Bank for more than 9 years, must not accept appointment on more than 1 licensed banks, 1 licensed takaful operator and one prescribed institution. The member must also not be an active politician.
The Shariah Committee composition must consist of a Shariah qualified Chairman of Shariah Committee and the majority of the Shariah Committee Members are Shariah qualified.
The Shariah Secretariat must provide the Shariah Committee adequate time to deliberate all Shariah matters.

HOW MUCH POWER DOES THE SHARIAH COMMITTEE REALLY HAVE?

As expected, the Shariah Committee must have full accountability in making decisions via robust deliberation of issues, including considerations of business practices. This idea is consistent with BNM’s expectation that Shariah Committee must reach a certain level of competency in advising the banks. BNM, it seems, is prepared to provide authority for Shariah Committee to decide on the business direction, in line with the overarching SAC decisions. This indicates that the Shariah Committee is meant to be influential in the Islamic Banking industry.

However, BNM also allows the challenge on Shariah Committee decisions if the bank deems the decisions have not taken into considerations the practical and business sense, especially for decisions stricter than the SAC. In such circumstances, the Board of Directors provide a view on the decision, and must be escalated to BNM. To ensure that this scenario does not happen as often, both Shariah Committee and the business must align the understanding on the business direction and mitigate the discrepancies in understanding. The role of the Chairman of the Shariah Committee is important to manage the interactions between the Board of Directors and his Shariah Committee members.

The above underlines the seriousness of the Shariah Committee function. With great powers comes great responsibilities. To hold such authority, the Shariah Committee must reflect quality, accuracy and soundness in all their decision-making.

WILL A SHARIAH COMMITTEE FUNCTION REMAIN A PART-TIME JOB?

Books

Personally, I understand there are challenges for Shariah Committees to devote a sizeable amount of time to provide banks with high quality, fully deliberated decisions that is valuable to all stakeholders. There are still a number of Shariah Committees only choosing to stay in their areas of expertise while concentrating on their day jobs. We hardly see a scholar having a full-fledge research house coming into the market with resources that can support the business requirements of an Islamic Financial Institution (IFI).

Nothing is mentioned on the expected level of research to be done by a Shariah scholar. That level is still left to interpretation although with the requirement to be “conversant in Arabic” implies Shariah scholar should be referring their research and decisions more consistent with global standards, where text, references and decisions are discussed and derived in Arabic.

IS AVOIDING CONFLICT OF INTEREST MORE IMPORTANT THAN KNOWLEDGE SHARING?

One wish that I had for the Shariah Governance is the composition of Shariah Committee itself. While the limitation of service of not more than 9 years is good for an IFI (to encourage rotation in the industry), I still feel the knowledge growth and development of Shariah Committees may not be as fast as the anticipated industry growth. What more, I feel that the limitation of a Shariah scholar to only serve in 1 (one) Islamic Bank, 1 (one) Takaful Company, and 1 (one) Islamic Development Bank do not allow the sharing of knowledge between entities and industries. Perhaps there is a concern where there could be a conflict of interest? I do not know. All I know is that globally, it is common to see one advisor sitting on multiple boards; and from the knowledge gathering for being in multiple boards, can be a substantial resource for the IFI.

WHY NOT THE CURRENT STRUCTURE?

In my opinion, there is a real shortage of knowledge between the old guards and the new challengers in the areas of Islamic Banking. What I see nowadays are issues being re-discussed again and again, and some have been discussed at length in different forums or decades earlier, with solid resolutions. The new scholars do not have the full understanding of history, background and context on many issues (some of which have already been discussed), and the older guard of very prominent scholars are not able to share the history, perspective, experience, background and earlier discussions on matters of Islamic Banking. This gap remains huge as the young scholars run to catch up in terms of the understanding that the older guards have. This resulted in many real, new and current issues being somewhat ignored as past issues are again discussed.

SO WHAT IS MY DREAM TEAM FOR A SHARIAH COMMITTEE?

In my perfect world, I would love to see a combination of the following:

The Shariah Committee Chairman. Senior person in the industry leading the committee, with vast experience of Islamic Banking operations, as well as Shariah Qualified and conversant in written and spoken Arabic. Must have leadership qualities to be able to manage the Shariah Committee.
Prominent Scholar. One prominent scholar should sit in as part of the Shariah Committee for the purpose of providing guidance, mentoring, advising and coaching to new Shariah Committee members and Industry Experts. This scholar should come from a list of 10-15 “A-Rated” Shariah scholars who have been in the industry for more than 15 years. Must have some capacity in BNM’s Shariah Advisory Council or is a Consultant with a reputable Shariah research house. Must have international exposure or sitting in an international Shariah board. Is allowed to sit in up to 5 (five) local Islamic Banks, Development Banks or Takaful Companies. Also conversant in Arabic, both written and spoken.This list of “A-Rated” Shariah scholars must be maintained or endorsed by BNM, just like how the Shariah Advisory Council (SAC) of BNM is maintained.
Combination of Shariah Scholars and Industry Experts. Can be appointed based on expertise and academic background with strong background in research. Must be Shariah Qualified and conversant in written and spoken Arabic. For Industry Experts, must be a specialist in the give area and have sufficient experience. This group is to be groomed to be included into the “A-Rated” Shariah Scholars upon completion of tenure. Training and exposure to be given, with the assistance of the Prominent Scholar, on how to upscale and up-skill the knowledge in Islamic Banking. And to be included into the “A-Rated” Shariah Scholars list, the scholars must undergo an overseas / international attachment with an international Islamic Bank as part of the Shariah Committee, perhaps for a period between 3 months to 6 months. This attachment should ideally be sponsored by BNM as part of the development of the Shariah Scholars exposure and capabilities.

Conclusion : The Shariah Governance Policy Document remains a strong upgrade from the previous SGF and should provide a more serious undertone to the overall workings of a Shariah Committee. This shall lead to stronger governance but I am not convinced on the development of Shariah Committees with the limitations imposed on appointments into Islamic Financial Institutions.

Wallahualam.

Continuing Post : The Problem with Transplanting the ‘Sustainability’ Movement on Islamic Banking

Posted on September 26, 2019 by Amir Alfatakh

By Dr Rosana Gulzar Mohd
EXCERPT : In ‘Islamic’ Banking, we dance around issues as if vying for a Bollywood Oscar. The latest theme, on ‘Sustainability’, is fashioned after the United Nations (UN)’ Sustainability Development Goals (SDG), in concert with other large organisations such as the Islamic Development Bank and the World Bank. While they may seem like a natural fit with goals such as peace, justice and decent work for all, a closer look uncovers a few fundamental flaws. Firstly, while championing social and environmental wellness, we continue to evade the main issue, which is that profit- and loss-sharing, arguably the main tenets of Islamic Banking, have been replaced with tawarruq, which resembles riba in form and spirit. Secondly, and related to the first argument, this concept of ‘Sustainability’ is at odds with the modern financial system. One is about preserving for future generations while the other belies a winner-takes-all mentality. There is a view that like Islamic Banking, ‘Sustainability’ cannot be sustained in Commercial Banks even though several of them, from Singapore to London, have adopted the practices. In Islamic Banks’ (blind) pursuit of Commercial Banking, are we being set up for failure?

Following up her article earlier this month, this discussion focuses on the “Sustainability” revolution undertaken by Islamic Banks, and whether “being compassionate” adds value to the Islamic banking proposition which still practices debt-based banking. What do you think? Read the full article here or click on the above diagram. Comments and feedback welcomed

For more writings under Dr Rosana, visit the page in this site which houses more of her writings by clicking below:

Continuing Post : True Islamic Banking is Not in a Commercial Bank

Posted on September 4, 2019 by Amir Alfatakh

By Dr Rosana Gulzar

EXCERPT : This is the ‘square’ that the ‘round’ Islamic Banks have been fitted into. So although Islam encourages a range of objectives that include communal welfare and profit-making (Note: NOT profit-maxisiming), Islamic Banks, as Commercial Banks, are almost single-mindedly pursuing the highest profits they can make for shareholders. They do this through all kinds of loans that look eerily like the riba they are supposed to replace. This is the outcome of a decision made by a group of founders in the Gulf Cooperation Council (GCC) countries in the 1970s. They wanted to quickly absorb the people’s newfound wealth from the oil boom. Several earlier attempts at genuine PLS in Egypt failed so the fastest build-up for Islamic banking would be by replicating conventional finance.

This is the continuing discussion by Dr Rosana on the above topic, which puts in the case for Cooperative Banks to be a more suitable testbed for Islamic Banking concepts and contracts. Perhaps a new look on what financial structure is most suitable adopt the requirements of Shariah banking is required. What do you think? Do give your comments and contribute to the discussion. Read the full article here or click on the above diagram.

For more writing under Dr Rosana, visit the page in the site which houses more of her writings by clicking below:

No Pork No Lard : The Shariah-Neutral Transactions

Posted on January 30, 2019 by Amir Alfatakh

TO COMPLY OR NOT TO COMPLY, BUT THERE IS A THIRD OPTION

Following my earlier writing on the Digital Wallet / ePayments and how such transactions may have not breached Shariah requirements but lacks the validation to ensure all elements do not touch the prohibited elements, I am called to further expand on the topic. In my opinion, there are possibilities that more Shariah-Neutral products and transaction enter into the space of Islamic Banking, but without the validation of Shariah scholars or committees and yet, it will remain acceptable. It is possible, and it is already happening now.

“NO PORK NO LARD”

It is an interesting situation in Malaysia now, when it comes to food. In general, Malaysia as a Muslim country, the expectation is that the food consumed must be Halal and more importantly certified as such. The reason for it is that it gives comfort to the public that certain standards are adhered to according to religious requirements. To walk into a restaurant with the Halal signage gives us Muslims confidence to consume the food till our bellies are filled.

But there are challenges. The desire to ensure the standards are met has resulted in difficulties for restaurants getting certification quickly. The process is detailed and granular, and this is a good thing, but can be disheartening when the certification drags. And in some cases it is impossible to obtain, especially if the eatery has halal standard food but also offers alcoholic drinks to its non-Muslim customers. The Muslims know (or assume) the food is halal if they see there is no pork on the menu, and will ignore the alcoholic drink. This is now a common sight in Malaysia.

And thus the loop-hole or short-cut is discovered. Rather than going for certification of Halal for their restaurant, many owners now deemed it sufficient that the signage “No Pork / No Lard” will result in a Halal understanding. And this may be true; many small roadside businesses do not carry a Halal certification but is nonetheless patronised by Muslims as it does not carry pork on the menu. That cue is taken by the restaurant owners and over a period of time, the “No Pork / No Lard” now is understood to be serving halal food but without Halal certification.

DOES “NO PORK / NO LARD” MEANS IT’S SHARIAH NEUTRAL?

Taking that concept into the banking world, will consumers eventually be accepting Shariah Neutral products and services as the new norm? A product or services with no prohibitive elements that is deemed acceptable by both the producer and consumers but without any Shariah Committee validation. For many years some conventional banks have been offering Shariah compliant third party Takaful or Unit Trust products which was vetted by the Shariah Committee of the providers.There is total reliance on the providers validation for Shariah compliance.

Additionally, there are products and services that is by nature, very close to meeting the Shariah requirements in a contract. For example the leasing products which is perhaps 95% in line with Shariah requirements for Ijarah such as rental arrangements, ownership transfers and roles and responsibilities of lessor / lessee. The contention will always be the penalties and perhaps some operational practices, but in my view, these can be amended.

THEY WALK AMONG US

Believe it or not, there are already efforts on becoming Shariah-neutral where it is deemed acceptable practice for attracting Muslim consumers. Some non-Islamic banks have been aligning some of their products features to be consistent with Islamic banking practices under the guise of responsible financing or sustainable banking. For example, the compounding late payment interest which some non-Islamic banks no longer practice. Another example is that some are considering to remove “Commitment Fees” from unutilised financing balances in overdraft / revolving credit to align it to Islamic banking practices. We are starting to see non-Islamic banks realigning themselves to be on par with Islamic banking practices. Just to regain the competitive edge.

This will eventually lead to offerings that remove the prohibited elements and validated as acceptable by the public themselves, without further validation of Shariah scholars. Can a non-Islamic bank eventually offer products that it deemed as meeting the Shariah expectations? Surely, Shariah Committee will not have jurisdiction over a non-Islamic bank offering Shariah-Neutral offerings.

The more crucial question is perhaps : Will the public eventually become not so demanding for a stricter (or complicated) Shariah Compliant product, and begin accepting Shariah-Neutral products that is offered by non-Islamic banks? Is that possible?

Such offerings may be offered via the digital world where the contractual lines are not so clear. Rebranding of a product can be done with minimal effort. The terms used can be made Shariah-friendly. How a transaction is handled behind the scenes may be less important with the convenience of using Apps or Mobile Banking. And without Shariah scholars prohibition or decision on such matters, the public will hold to the opinion that it is deemed compliant and thus acceptable. Eventually, this opinion will become customary and generally accepted.

“No Pork No Lard” may one day become the new acceptable norm in the non-Islamic banking space. And my suspicion, a lot of sceptics of Islamic Banking already hold this view. Maybe it is time to make clear of the colours of the offering; is it white or is it black? Otherwise, the colour of grey will become the new white.

To read the earlier posting, click on the following: https://islamicbankers.me/2019/01/15/e-wallets-did-you-forget-us-again/

Why Choose Islamic Home Financing in Malaysia?

Posted on January 23, 2019 by Amir Alfatakh

ISLAMIC FINANCING HAVE SHOWN SUSTAINED GROWTH. WHY?

In the course of our job, we are often asked what are the value proposition and selling points of taking an Islamic Financing product as compared to a conventional loan. Are there certain conditions to qualify a person for taking Islamic Home Financing? There are misconceptions that Islamic financing are expensive, but if that is true, why would there be a growth in Islamic financing? Would people have to be extremely religious to accept an expensive / inferior product no matter what just because it is Shariah compliant?

There are certain features in-built in an Islamic structure that gives benefits that appeal to certain types of customers, based on their needs and requirements for the product. On the flip side there are also consumers that prefer other features not possible for an Islamic structure. It depends on your requirements when it comes to your usage.

BENEFITS OF ISLAMIC HOME FINANCING

No Lock-in Period or Early Settlement Penalty for financing . In the banking world, there is a lot of effort to on-board a customer for a particular financing, and home financing is one of them. The process can take 3-9 months and involves a lot of people and it is natural for a bank to want to earn income as much as possible, as long as possible from the customer. That would not happen if the customer settles early. The bank will impose a minimum “lock-in” period of between 3-5 years where customers are prohibited to sell, settle or refinance their houses. If they do, an early settlement penalty (usually 1.0% on the amount to be settled) will be imposed. Under Islamic financing, this feature is not generally accepted due to the concept that “Debt Cannot be Forgiven, even in Death”. Therefore to impose a penalty when a customer is attempting to pay off its debt remains an issue in the area of Islamic Banking. This is outline in the Ibra (Rebate) Guidelines issued in 2011 which prohibits such charge (Item 8.3). But that is not to say any penalties cannot be charged for the product. Such allowances are given if the product is sold based on a promotional rate, for example 2.0% p.a. lower than the normal financing rate for special campaigns or conditions. In such cases, the bank can recover the “discount” if the financing is settled within the lock in period. Actual cost or loss incurred by bank can be recovered (to avoid abuse). Another example is when a bank absorbs the legal fees for the financing, that actual expense can be recovered if early settlement is made within the lock in period. This Shariah requirement have proven popular for customers seeking short-term financing (plans to upgrade their properties within a few years) as well as property investors seeking for options to dispose properties when opportunities arises.
100% Stamp Duty waiver for Home refinancing. This feature is available in Malaysia where the government agrees to allow for a 100% stamp duty waiver for Islamic Financing when it is refinanced from a conventional bank. This is to encourage the refinancing market as it appeals to customers seeking additional financing on a property’s capital gains. For example, 10 years ago the customer took up a loan for RM500,000 on a RM600,000 property which is now worth RM1,000,000. As the balance outstanding on the loan now is RM300,000, the customer is seeking another RM400,000 cash to finance a renovation. If the customer intends to move the loan, the customer will incur a stamp duty for RM700,000 (i.e. RM300,000 existing + RM400,000 additional). However, moving it to an Islamic bank, the existing stamp duty for RM300,000 will be totally waived and only the additional (top-up) amount of RM400,000 will incur the normal stamp duty. This waiver is applicable for all refinancing from conventional bank to Islamic banks on the amount refinanced (provided the original loan has already paid for the stamp duty prior to the refinancing). This applies for individual customers as well as companies.
Ceiling Rate Price Protection. While many years ago, this feature is mis-sold by many sales person as being oppressive and expensive, with the current climate of changes, this have instead become a competitive benefit for Islamic Banks. The key changes that happened in the past few years was first the Ibra’ (Rebate) guidelines issued by BNM in 2011 and also the Reference Rate Framework in 2014 (Item 8.10). The Ibra’s guidelines says it is ok for the bank to charge a ceiling rate to formalise the Aqad, but the day-to-day charging of the customer must be based on a mandatory rebate mechanism where the effective rate is at par which what a conventional normal benchmark rate is. This means that the customer is not overcharged. More importantly, the customer will not be charged more than the ceiling rate should the normal benchmark rate increase to above the ceiling rate. This provides the customer price protection against high fluctuations of the benchmark rates. Some might say that there is no way rates will breach the ceiling rate but if you look at the length of a financing product of up to 30 years, who is to say the benchmark rates won’t breach during an adverse economic cycle? More importantly, the Reference Rate Framework allows for punitive pricing where banks are allowed to increase the loan/financing rates based on customer’s risk profile to up to Effective Rates +3.50% p.a. If a commercial financing of BFR + 3.50% is about 10.30% p.a., that is not too far away from a normal ceiling rate ranging from 12% to 15% p.a. So, with a Ceiling Rate you get the best of both worlds; if the benchmark rate is below the ceiling rate, you enjoy the benchmark rate (same as conventional loans), and if the benchmark is above the ceiling rate, you only pay based on the ceiling rate (not the same as conventional loans).

GIVING BETTER SOLUTIONS THAT SATISFY SHARIAH REQUIREMENTS

The top 3 reasons above are some of the main drivers for Islamic Financing. For item 1 it is the BNM effort to provide Islamic Banks with a competitive edge based on Shariah instructions. For item 2, it is the government of Malaysia initiative to provide stamp duty incentive for a specific segment ie refinancing segment. For item 3, it is the Shariah requirement to have a ceiling rate which protects the consumer from uncertainty. All these 3 elements come together to provide a competitive advantage to banks and benefit to consumers.

There are a few smaller advantages to an Islamic financing structure (based on specific products such as No Commitment Fees for Islamic Revolving Credit or Overdraft), but it is too many to list down. Granted, these features are incentives and assistance by relevant parties to make the products attractive, and may not be applicable for products outside Malaysia.

In conclusion, the above demonstrates the ability to take a Shariah requirement to make it into a benefit for consumers. This aligns with the idea that Islamic Banking products must contribute to the sustainable practices that offers fair an equitable solution to consumers.

Risk Management in Islamic Banking

Posted on June 1, 2018 by Amir Alfatakh

IS THERE SUCH A THING AS ISLAMIC RISK MANAGEMENT?

I had this conversation recently until the wee hours of morning, and although I never thought a lot about it, I have come to the conclusion that there cannot be an exact replica of the Risk Management in the conventional sense.

Risk Management is a tool used by all conventional banking institution in the name of good governance, risk mitigation and prudent practice. It looks at financial exposures and its inherent risks to the business, and deeply believe in the risk-rewards pay-off within the generally accepted risk appetite of the organisation. It focuses a lot on control processes, performance monitoring, collateral value, and decision making policies for credit, market and systemic risks.

To a large extend, the risk management framework employed by the conventional banking businesses can be easily adapted by Islamic Banking counterparts. The components are the same, and there is little argument on its applicability under Shariah law. However, the risk management framework for Islamic Banking institutions must be inherently different as well, or maybe extended to include a bigger scope. It cannot just be seen as a replica of the conventional business; the foundation of Islamic Banking is definitely different.

There are a few divergence in the reason an Islamic Banking institutions should (ideally) follow. This is an on-going argument on the fact while Islamic Banking claims to be a different business model, but it is still engineered by the rules of a conventional organisation. But what are these divergent reasons for setting up an Islamic Banking business?

The lending of money to make money is forbidden.

This may seem like a trivial thing for Islamic Banking as many will say there is no difference between profit and interest. But for us practitioners, there is a big difference in its concept. Because of this difference, the way we think about how a product can be structured is paramount. Underlying contracts, assets, ownerships and roles and responsibilities becomes different from a tranditional / conventional bank (whom are essentially a money lender). To validate a transaction, all tenets and requirements in an Islamic contracts must be met or else it becomes an invalid transaction and any gains from it must be given to charity. Any gains obtained without fulfilling the transactional can be deemed as usury (riba’).

There are specific Shariah requirements that takes Islamic Banking beyond banking.

Some terms are pretty alien to traditional banks, such as commodity purchase, operating lease and rentals, sequencing and ownerships. This is where the divergent begins, because Islamic Banks espouses the concept of “trading” and “entrepreneurship” and “partnership” and “service provider”, away from the “lender-borrower” arrangement. Traditional banks struggle to understand issues of ownership of assets, risk and loss sharing, purchases of commodity and rental of assets. These activities are beyond traditional banking, and may become an operational risk issue if it is not fully embraced.

Islamic Banking should be more closer to a venture-capitalist, crowd-funding model than traditional banking.

The fundamental requirements for earning a profit (and to a bigger extent, how much we can earn from a transaction) is the element of risk sharing, which mean both customer and financier takes some form of the risks of the venture. At the same time, such “risky” venture is mitigated by way of ensuring it is not overstretched i.e. the transactions must be either asset-backed (including the presence of collaterals) or asset-based (evidenced by real trading or assets or commodities) to reflect economic activity.

The amount of risk taken under an Islamic contract can be higher (for contracts such as Mudharabah or Musyaraka financing) but it must be reflective of the economic reality and available assets.

The risk assessment of an Islamic contract must then be enhanced to behave similarly to what a venture capitalist can accept. There will be direct risks on equity, investments and returns. There will be corresponding returns as well. But such concepts will be difficult to digest if the bank is set up based on traditional banking fundamentals, which caters for a totally different profile of stakeholders.

As far as possible, the Shariah committee draws a line for transparency, fairness, and justice.

Islamic Banking should be an extended but integral part of economics. Islamic Banking is supposed to be more than a bank. It shoulders a broader responsibility to the people by looking at needs and providing products that serve a purpose. The idea of responsible financing, transparency and customer service should be the by-word of an Islamic Bank. The payment of Zakat (tithe) on profits which goes back into the community recognises the financial role that it needs to play. Corporate Social Responsibilities also play a role.

In this repect, the Shariah committee plays an important role as gatekeepers to the products and services on offer. Because of the unfamiliar territory of Islamic products, Shariah insists that transparency is critical to avoid uncertainty (gharar), the terms to the products are fair and the banks are ethical in its conduct to ensure justice. Fees and charges must reflect actual costs. Efforts are made to help a customer in distress. And conduct of the bank must comply with the requirements of Shariah.

SO, BASED ON THE ABOVE, WHAT ARE THE OF RISKS FACED BY ISLAMIC BANKS?

As a general rule, all risks faced by a conventional Bank must be “transferable” i.e the nature of the financial transaction must, as far as possible, allow for the TRANSFER OF RISKS. Wherever the opportunity arises, the Bank must be able to quickly pass the risk of the asset or valuation to the customer. Such understanding is also apparent in Islamic Banks. Looking at most Islamic Banking contracts, their structure allows for the transfer of risks, which follows the transfers of ownership, responsibilities and obligations from one party to the other. Contracts such as Murabahah, Musawamah and Qard works by transferring the ownership, responsibilities and obligation from the Bank to the Customer.

Alternatively, mostly exclusive to Islamic Banks, are structures that allows for SHARING OF RISKS. The structure is more “participative” in nature, where there are benchmark by which determines the level of risks a party should have. The regular types of contracts that continues to share risks are Mudarabah, Musyarakah and Ijarah.

COMMON RISKS

As mentioned before, the risks faced by a conventional bank and Islamic Bank should be very much the same, except for risks arising to the execution of Islamic contracts or pronouncement of the Shariah. While there will be common elements of risks for both types of Banks, the importance of Shariah ruling and decisions result in Islamic Banking becoming so unique. The following are the Risks commonly faced by Islamic Banks:

GENERAL RISKS – Risks existing in both conventional and Islamic banks.

Credit Risks – Arises due to counterparty risks (possibility of default by the party taking financing) where the counterparty fails to meet its obligations, in terms of payment, uncertainty of industry, change of direction or diminished collateral value. This lead to settlement risks which means the Asset quality has diminished.
Market Risks / Interest Rate Risks – More macro in terms of effect on the risks. It relies on the performance of the market as well as the quality of the financial instruments (price, performance, valuation, demand, yields and inability to reprice. It leads to exposure to interest rate risks, where the risk of the bank increases with movements in the rates.
Liquidity Risks – Refers to the risk of inability to return cash to investors or stakeholder in stressed scenarios, resulting in forced borrowings from the market (usually at higher price) coupled with the possibility of not able to dispose assets. This may lead to valuation risks.
Operational Risks – Due to inadequate control of internal processes and operational practices, the risks may result in real loss of income and potentially reputation. Human errors may be difficult to unwind especially if there is financial implications. There may also be legal risks as it may be considered a breach in contract by the bank.

ISLAMIC SPECIFIC RISKS – Risks arising from operational and processing function

Transactional risks – Especially under Islamic Banking structures, transactions play an important role as part of the Aqad, where required. For example, the sequencing of a Murabahah transaction. Failure to ensure compliance to the Aqad requirements will lead to potential invalid transaction and loss of income (or flow to charity).
Valuation Risks – Due to the nature of some Islamic Banking contracts, especially equity based structures, there will be challenges in valuation of the portfolio. Reduction in valuation will result in real losses for the investors.
Displaced Commercial Risks – Displaced Commercial Risk (DCR) refer to the risk of mismatch between the fixed/contracted obligation to the depositors vs the uncertain returns on the financing (income) which may result in the income is insufficient to meet the obligations to the depositors. For example, the commitment for Islamic Fixed Deposit is 4% (contractual) but the Financing portfolio into which the Fixed Deposits is deployed into only earns 3% (actual returns). Therefore, the 1% shortage is the DCR where the Bank will have to flow 1% of income from other portfolio to meet the deposit obligation of 4%.

SHARIAH RISKS – Risks arising to non-compliance of Shariah decisions and Shariah instructions.

Shariah Compliance Risks – The operation of an Islamic Bank is hugely dependent on the requirements of the Shariah Committee and approvals obtain on the process and procedure. Inability to comply with Shariah requirements puts the operations of the Islamic bank at risk as the department may be regarded as non-Shariah compliant business.
Fiduciary / Ownership Risks – Some of the structures under Islamic contract requires the bank to operate outside the scope of a financial intermediary. It requires the bank to hold property or trade commodities or own and lease assets, with various contracts using various roles and responsibilities. The risk of multiple roles and function must be clearly defined and implemented.
Regulatory / Reputational Risks – Changes in regulations requires quick adaptation to ensure compliance to regulation and maintaining the banking reputation intact.?

SO HOW DO YOU MANAGE ISLAMIC RISKS AND SHARIAH RISKS

As mentioned, Islamic management of risks should not be any different for the base of conventional bank’s methodology of measuring risks. There must be deep understanding of the products and structure for the bank to be able to assess the risks associated. To manage an Islamic Bank and its risks, the bank must first identify each of the risks and form safeguards to settle the above. Then only an Islamic bank can formulate suitable controls to ensure the Shariah specific processes and Shariah pronouncements are being monitored and implemented with sufficient support (internal or external). Wallahualam.

The All New Shariah Advisory Council BNM Website

Posted on April 21, 2018 by Amir Alfatakh

THE ONE-STOP SHARIAH ADVISORY PAGE OF BANK NEGARA MALAYSIA

Finally it is here, the website dedicated to the works and reference regarding the Shariah Advisory Council (SAC) of Bank Negara Malaysia. There is a wealth of information on the decisions and fatwa of the SAC, and this will provide valuable reference point on how a particular decision is made. Good insights especially to leaners interested in knowing the methodologies and depth of deliberation that the SAC employs for a decision.

The Centre of Shariah Reference in Islamic Finance

The website itself looks clean and uncluttered and holds various sections of interest. They include:

Shariah Standards & Operational Requirements. Currently it covers the 12 Islamic contracts standards that has been issued up to today (21 April 2018). You can view the various standards individually as you scroll down the page. Click on the banner below to go to:

Shariah Resolutions 1997 – 2010. This is the English-language compilation of the various resolutions when the industry was in the infancy stages. Lots of very fundamental discussion happenning during this period in the industry. Click on the banner below to go to:

Shariah Resolutions 2011 – 2017. This is the continuing compilation cover a more advance level of discussions, as the products in the market become more sophisticated, More importantly, the introduction of Islamic Financial Services Act 2013 (IFSA 2013) provided a more robust consideration of operationalisation of the Islamic contracts. Personally, I learned quite a number of concepts during this segment of time. Unfortunately at the moment, the compilation is in Bahasa Malaysia (Malaysian language). Click on the banner below to go to:

Educators’ Manual. This section interestingly mentions the existence of manuals for learning organisations that teaches Islamic Banking and Finance courses. I am sure these are useful documents if it is coming from the SAC. But you need to sign up and agree to adopt the standards for your institution to access these. Therefore I can’t really comment on the contents. Click on the banner below to go to:

Latest Shariah Rulings (Individual SAC Meeting Resolutions). This section allows the reader to have access to the decisions made on certain specific issues. It aims to provide the reader the understanding of how a decision is derived, based on relevant Fiqh evidences. Interesting read and quite comprehensive. Click on the banner below to go to:

Infographics. I believe this is part of the efforts to educate the public on the understanding on the workings of Shariah contracts as well as the process flows (and Shariah requirements) of a particular Islamic structure. As at current date, there are only 3 Infographics available ie Tawarruq, Istisna’a and Murabahah, but I am sure over time, the number of contracts infographics will grow. Click on the banner below to go to:

List of Shariah Committee Members in Islamic Financial Institutions. This is an interesting section because of the willingness to disclose to public the Shariah scholars responsible for the resolutions or opinions at the institutional level. It provides transparency and also reference of the Shariah Committee strength compared between Islamic Financial Institutions. Click on the banner below to go to:

There are many other sections in this website and I personally believe that this site will be one of the most complete point of reference for all the Shariah-related banking decisions. It may provide a better understanding of how the SAC makes a resolution that impacts the overall industry. I personally encountered a few glitches but I hope the content accumulates further to finally become one of the prominent sites when it comes to Islamic Banking.

Also, hoping someday the website will publish a hardcopy of the resolutions because some of us do read actual books. But if there is a plan for an e-book, do let me park it here on my website. For free.

Overall, I think the SAC website looks awesome and would definitely be one of my reference website for Islamic Banking products, processes and issues.

P/S Somehow I am not able to register as a subscriber yet (April 2018). Maybe still developing this area of the website? Hope it is sorted out soon.

Deposit Paradigm Shift

Posted on November 16, 2016 by Amir Alfatakh

The battlefield in banking has always been deposits. The importance of deposits cannot be underestimated; it provides a cheap source of funds for the Bank to support financing activities. Especially in Islamic Banking, the concept has always been “Linkage between Sources and Application of Funds”. How well the financing portfolio is built depends hugely on the ability to raise the deposits needed for the funding.

However, with the IFSA 2013 introduced to redefine the deposit vs investment landscape, raising sufficient deposits have now become a huge challenge for Islamic Banks. Traditionally, a Bank’s sources of funds are built around Current Account / Savings Account (based on Wadiah) and Fixed Deposits (based on Mudharabah), and any shortfall is supported by Interbank Borrowings / Capital. A healthy ratio between CASA : FD : IBB/Capital would be 40% : 30% : 30% and this is common prior to IFSA 2013.

Now that Deposits are defined under Qard (with greater limitation in providing any returns) and FD defined under Tawarruq, the ratio for raising deposit has become FD-heavy i.e. the CASA ratio falls to about 20% and FD (under Tawarruq) increased from 30% to 50% or 60% of the portfolio. This means the overall cost of deposits for an Islamic Bank has suddenly increased coming from the higher proportion of “expensive” FDs!

Alternative for Source of Funds

In the earlier days of IFSA 2013, there were a lot of comments that perhaps the new law has not taken into consideration the “reality” of Islamic deposits and was passed without too much deliberation. But I do beg to differ because if you really look at it, BNM has a clear agenda to shift the traditional way of funding through Islamic Deposits into a more robust method of equity funding. For many years, traditionalists and academicians have commented that Islamic Banks are simply mirroring conventional banking products. To a certain extent it was true, but now you see BNM laying down the foundation to take equity contracts such as Mudharabah (profit sharing entrepreneurship), Musyarakah (equity partnership) and Wakalah Fi Isthihmar (Agency for the purpose of Investment) to the next level.

paradigm-shift-in-deposits-2016

Funding via Mudharabah.

The next step in deposit building is envisioned to be under Mudharabah i.e. Investment Accounts. I am a big supporter of Investment Account as I see there are huge value, potential and opportunities for the industry to grow via this contract. Mudharabah removes the burden of raising deposits from the Bank itself. It simply offers the opportunity to fund an Asset (financing portfolio or investment assets) to the Rab Ul Mal (owner of the capital) to directly invest and enjoy the returns from that investment. The Bank no longer takes deposits from customers (on a “loan” basis where the Bank has an obligation to return the principal amount) but instead becomes the “fund manager” i.e. Mudharib to manage the portfolio on behalf of the customer.

Under Mudharabah, the customer now owns the Asset (flow-through approach) and takes all the risks on the Asset. The Bank, on the other hand, takes a cut via the profit sharing ratio as a “Mudharib fee” for managing the portfolio. This arrangement also removes all the burden associated from both the obligations on raising the deposits (Statutory Reserves, PIDM premiums) and cost of maintaining financing (capital costs of funds, liquidity premium, opportunity costs from Liquidity Coverage Ratios and Asset Deposit Ratios). These “savings” adds up to the overall income to the Bank.

Funding via Mudharabah is captured under the Investment Account guidelines, where the Assets are to be carved out from the Bank’s Balance Sheet into another reporting line where technically, the customer is the indirect owner of the Assets.

Funding via Musyarakah.

The intention to build confidence and acceptance of the Mudharabah structure for Investment Account hopefully will take the “deposit building concept” into the next stage i.e. Musyarakah structure where the role of “deposits” is transformed into “equity”. What it really means is that, instead of the customer placing money with the Bank to invest in “general investment or banking activities”, the customer now placed “equity” directly into the financing portfolio. The Bank no longer have any involvement in the financing portfolio, but merely facilitates the investment activities of the customer (as investor).

This is similar to the concept of crowdfunding where the investors come together and place equity in a business as direct investors. The investors now have direct share in the business, takes risks on the performance of the business, and enjoys the returns afforded by the performance of the business. It really is direct economic involvement of the investor into a specific business, where the risks and rewards are made known to the customer prior to them making a decision to invest or otherwise.

So what does the Bank earns? The Bank earns a management fee for facilitating the funding, which includes initial assessment, risk ratings, records keeping, statements and overall management of the account.

iap-2

Malaysia already introduced this “Musyarakah” platform to the public in the guise of “Investment Account Platform – IAP” where investors, retail or institutions, can go to the platform to see available financing requirements from businesses, to evaluate and assess to make a decision to invest into the business for the long term. Check out the write up under IAP above and their website https://www.iaplatform.com/

The role of the Bank moving forward

In all honesty, Islamic Banking no longer needs to raise “Deposit” to support financing activities where the profit is earned. That is the old way of thinking where Banks are ask to “fund before lending”. In the future, the Bank should build a financing portfolio which is funded mostly by customers, thus removing the contractual burden and the financial costs associated with deposit building. The role of the Bank is merely as a Mudharib (manager) of the funds where the Bank earns a “fee” from the returns of the financing portfolio. This role will further evolve under Musyarakah where the Bank don’t even own the Asset in the Balance Sheet, but earns fees from the act of facilitating the investment by the customer via the Investment Account Platform (IAP). This is “venture capitalist” territory but with specific rules to the game. Eventually, the Bank do not need to raise deposits to meet financial ratios, because the customer themselves goes to fund the Assets directly.

And while some may still criticise BNM when they faced difficulties raising cheap deposit via Qard and Tawarruq contracts, they should also realise that the role of the Bank must one day evolve from “Banker to Manager to Facilitator” where products such as Investment Accounts (based on Mudharabah and Musyarakah) are already available for them to take advantage of. Banking is no longer just “banking”. It is envisioned to be more “participative” in nature than what it is now.

Haven’t we all been talking about this model for many many years now? It is truly a time to finally build Islamic Banking as we had always said it.

EBOOK : Alternative Financial System Islamic (Halal) Finance – IBFIM

Posted on November 5, 2016 by Amir Alfatakh

One of the ongoing efforts that some of us have is to figure out how we provide greater access of Islamic Banking to the mass market. This includes not just to Muslim readers, either here in Malaysia or other global countries, but also to access non-Muslims readers as well. And to do that in their mother tongue will be the ideal method as it will provide familiarity and ease in understanding on what is being communicated.

Click picture to Download PDF

Realising this, the Islamic Banking and Finance Institute of Malaysia (IBFIM) has just launched a book in Mandarin Chinese titled “Alternative Financial System Islamic (Halal) Finance” with the hope of providing greater understanding on the concepts, rationales and practices of Islamic Banking and Finance. This is in line with IBFIM’s mandate from Bank Negara Malaysia to produce a pool of talent whom will be competent in Islamic Banking issues and practices. Also, IBFIM currently offer courses for various technical levels for the purpose of raising knowledge and awareness toward Islamic Banking in the industry. Over a period of time, IBFIM has become one of the knowledge leaders and recognised internationally as a place where practical advisory can be obtained.

I have spoken to the folks at IBFIM about posting this book on this site and I am grateful they have consented, for the benefits of readers. Unfortunately I am not able to comment on the book (as I am not a Chinese reader) but I sincerely hope the book helps to provide some insight towards the mysteries of Islamic Banking.

To get a Hardcopy of this book, do get in touch with IBFIM directly at their website www.ibfim.com or look out for their various events nationwide.

To download the PDF copy, please click on this link: (Click Here)

ALTERNATIVE FINANCIAL SYSTEM ISLAMIC (HALAL) FINANCE

Thank you IBFIM for this great effort.

The Difference Between Islamic Banking Financing and Conventional Banking Loans

Posted on July 11, 2015 by Amir Alfatakh

I know the title of this post is a mouthful, but I am insisting on the title. Simply because today I came across another round of bashing by individuals on Islamic Banking. Again, the contention is that Islamic Banking is no different from conventional banking; worse still it is claimed that Islamic Banking is more detrimental than conventional banking. How can this be? I watched the video and aghast by the level of ignorance to the nature of Islamic Banking. And gauging from the response by the rest of the audience, it seems that the audience themselves knows no better.

It seems that a lot of individuals are still unconvinced about Islamic Banking. Furthermore, the impression that it is worst-off than conventional banking needs to be addressed. Islamic Banking, while on the surface is still banking, but it is built on a totally different foundation. There are significant difference which is brought about by a single requirement; Shariah-compliance.

THE STRUCTURE

The basic difference between Islamic Banking and conventional banking is the structure of how the Bank is set up. For a conventional banking, the purpose of set up is to collect deposit and to give loans. This is the shareholders understanding of what it should be. 2 very distinct function ie Collect Deposit and Give Loans, and the arrangement is managed by a Treasury function which tries to balance the returns to shareholders’ funds.

Conventional Banking Structure (Diff)

But what is Islamic Structure then? In essence, how an Islamic Bank is supposed to be set up is based on the theory of “Sources and Application of Funds”. There should be a single flow between the deposits and the financing / investment use of funds; this means there is no distinct function. It is a single function where customer deposits or investment pool is used to fund financing portfolio or deploy into investment instruments, from which returns are derived and recognise. Once the returns are determined, these returns are “shared” between the Bank and the customers (deposit/investment). This “Profit Loss Sharing” structure demands a different way of managing the Bank, although not all Islamic Banks are able to successfully pull this off 100% (especially when the Islamic Banks are still under the parentage of a conventional bank).

Islamic Banking Structure (Diff)

In my personal view, the structure of an Islamic Bank is most suited if it is built around the Mudharabah structure. It fits perfectly on how the Bank is to be managed. It should be the backbone of any Islamic Banks, where the set-up is linked end to end resulting in sharing of actual returns arising from a Shariah-compliant financing/investment activity.

Finally, the processes in an Islamic Bank and conventional Bank are also different, simply due to the structure of which it has been set up. There is a broader requirement for oversight and research required to ensure the Islamic products and services meets Shariah requirements. A lot more layers to comply with, a lot more details needed.

Islamic Banking Diff (Structure)

THE SHARIAH COMMITTEE

Shariah Committee is the most important difference between an Islamic Banking business and conventional Banks. It provides an oversight accountability in ensuring that all the operations of an Islamic Bank is consistent with the rules of Shariah.

Shariah Committee (Diff)

There is a huge layer of governance surrounding an Islamic Banking proposition. Whatever features that it offers, it goes through regulatory oversight by the Shariah Advisory Council of BNM, and stricter scrutiny by the Shariah Committee whom are not under the jurisdiction of the Bank but reports directly to the Board of Directors. The decisions (or “fatwa”) given by the Shariah Committee will be held solely by the committee themselves, therefore there is a huge responsibility for them. The Shariah Committee must ensure their decisions have taken into account all requirements of justice, customer protection, compliance to Sharia, interpretation to customary civil practices as well as practicality of implementation. In short, decisions must be clear, defensible and without any doubt to its validity.

SUSTAINABLE MAQASID OF SHARIA

In Islamic Banking, matters really are determined by intentions. And the intention is to ensure the Maqasid (Objectives) of Shariah are met.

Maqasid

These Objectives are a key consideration in setting up an Islamic Banking operation. But it does not mean the operation of Islamic Banking and the deployment of its funds are for charitable purposes. It is still a business that needs to be sustained by investing in Sharia-compliant economic activities, therefore it is misleading to assume Islamic Banking is a holistic endeavor that “should not charge interest” or merely to “provide assistance to the ummah”. There are costs for running an Islamic Banking business, and as far as possible it should be at par to the costs of running a conventional banking business. Returns on Shareholder capital is also important to ensure that capital is continued to be invested into Islamic Banking for it to grow. With growth comes the ability to continue supporting the ummah. The key word is sustainable banking. You cannot grow or even survive if you are not competitive.

THE PRODUCT & CONTRACTUAL RELATIONSHIP

Designing and launching an Islamic product is not easy. The amount of work that needs to be done in relation to the fundamental difference between an Islamic Bank and conventional Bank. The fundamental difference is the totally different outlook on what happens after entering a contract. The contract between a customer and a conventional bank is simple; a loan where interest is charged upon over a period of time.

Key Diff - Product (Example)

But look at an Islamic contract. It is much more complex structure, but once determined, it really makes total sense. The contract defines the relationship, the relationship defines the responsibilities and subject matter, the subject matter defines the sequencing and ownership requirements for the use in an economic transaction, the transaction defines the rewards and returns on the completion of the contractual obligation. Cause and effect, risks and compensating return, action and rewards.

What usually confounds practitioners (whom are not well versed in Islamic Banking contracts) are the level of detail. Some may consider the issues discussed in an Islamic Banking forum as “petty” but others expressed amazement in the level on consideration undertaken during discussions. For example, an Islamic Banking forum would discuss the nature of loan (Qard) and responsibilities of Qard, conditions of Qard, transferability of Qard, conclusion of a Qard Aqad (offer and acceptance), dissolution of Qard and implications of Qard when attached to other Islamic contract. This level of discussion is missing from the conventional banking space where in their view is that a loan is an amount given to customer where it is to be repaid back with interest.

OVERALL SUMMARY OF DIFFERENCES

There really are differences between Islamic Banking and conventional banking, and there are some of us trying very hard to make a difference in the compulsion towards Riba’. As a summary, below are some quick differences I have compiled from my earlier days in the industry on the differences between the models.

DNA OF ISLAMIC BANKS

For me, the main difference between Islamic Banking and conventional banking is that the concept of justice to customer is not regulatory driven; it is conceptually driven by the idea of Islamic Banking itself. A lot of conventional banking practices are developed to maximize returns while minimizing risk, and risk-transference is a key consideration for conventional banks. Regulators have to be vigilant in ensuring conventional banking toe the line to protect customer’s interests.

Islamic Banking, in its DNA is intended more than just being profitable. It is meant to be providing service to support the activities of the ummah (Muamalat) defined within Shariah-compliant transactions. There are specific rules that must be followed; breach of these rules means the penalties are non-negotiable i.e. whatever returns gained from these breaches must be given to charity. Care and consideration is a must. Justice and fairplay is always important in a decision by Shariah Committee. Release of customers burden is a priority.

AVOIDING FITNAH

Many customers still lack knowledge of what Islamic Banking is all about. They collate biased and misleading information from truncated and unverified sources on the internet, facebook postings that intends to be malicious rather than presenting the true picture, and comments by individuals who make generalized comments on their experience which may well be isolated cases due to misinformation, misunderstanding or just plain ignorance to the fact. And yet these comments are sensationalized, made viral and deemed to be the absolute truth without further exploration or verification.

Cut and paste seems to be the easy way forward. Yet people forget the discipline that is practiced by the companions of the Prophet; you must verify the information by determining it all the way to the source of the information, up to naming the individuals who made the first comments, and deciding whether the individuals are trustworthy and of good standing. This discipline is lost in this world of over-abundance of unverified information in the social media where direct accountability is undetermined, and it has become increasingly difficult to separate untruth from fact.

I had always advised friends and critics alike to be careful of what they “recommend” when dealing with Islamic Banking due to the huge responsibility of such recommendations. If they are ready to criticise Islamic Banking as “same as conventional” or “open to back-door riba” without full understanding of what it really is, they should be ready to take responsibility for that. If their basis of stating as such is based on “viral whastsapp message” or “comments by third party islamic practitioners” or “explaination by insiders in the industry” or “commentary by blogs”, I do appreciate if we as practitioners can be provided with these “sources” for us to verify its accuracy. Many times I find the comments are based on partial information, taken out of context, outdated writings or information as well as just being malicious without proper basis or discussion. Some are not even Shariah related or relevant to Islamic Banking practices, just operational and processes defects.

Do think of the implications: Should a person make such comments that “Don’t take Islamic Banking products because it is not really Islamic and there is a lot of trickery to it”, and the person listening to that comment thinks “Owh then there is no difference between Islamic product and conventional riba banks’ product” and proceeded to take Riba-based loan products, the implication is that the person who made the comment had directly influenced another person, in my view, in making a wrong and sinful decision. Will that person be responsible for this act of “pushing another Muslim into taking Riba products”? It is a heavy burden to take, not just immediate but in the hereafter. So be careful when a person makes that comment.

And to imagine what will happen when the person who took the Riba product commented to another person (and another) that someone commented that “there is no difference between Islamic Banking and Riba Banking…” . It will become a tree with a massive root, grown by the single seed of the original “defective” comment by the first person.

MashaAllah

Hopefully those doubtful questions on Islamic Banking should be directed to Islamic scholars, Islamic banking practitioners or relevant academicians with stature, knowledge and qualifications before the ummah believes and spread untruth that will, in the end, become a disservice to the religion of Islam by spreading “fitnah”.

ISLAMIC BANKING IS EVOLVING

Evolution

Granted, Islamic Banking is a 30 year old structure, with many building blocks are still in progress. But it has not stopped evolving to existing times as and when new regulations and Shariah decisions comes into discussion. It is not perfect yet, but practitioners are aware of the difficulties of meeting all the requirements without enhancements and considerations to practicality. There is a misguided assumption that academia are aware of all the shortfall of Islamic Banking practices and the industry had turned a blind eye to these. Nothing can be further than the truth. Islamic bankers, Shariah Committees and BNM are well aware of all of the issues raised by academia as well as other practitioners, with the benefit of global awareness as well. In truth, practitioners know more of the issues they faced on a day-to-day basis, as compared to academia where some of the issues had already been resolved by the industry but not made known to academia.

Criticisms are always welcome, but ideally it should be constructive on how to improve. It is a heavy responsibility to ensure the differences between Islamic Banking (based on Shariah) and conventional banking (based on lending) are managed diligently. It is an on-going evolution that I am confident one day will reach its apex. Ideas are welcome and proposed solutions considered in earnest. And as I have always said to my product team; If you’re not part of the solution, then you are part of the problem. So, let’s be the solution that we had always wanted.

Wallahualam

My earlier postings on similar conversation:

More videos at Islamic Bankers Resource Centre on YouTube

Goods and Services Tax on Islamic Products

Posted on April 7, 2014 by Amir Alfatakh

Goods Services Tax (GST) will be one of the hot topics for the years to come in Malaysia, when the GST finally comes into place in 2015 to replace the Services Tax. Many arguments have been made on both side of the political divide but the reality is that GST will be implemented and have a huge impact on how services and goods are being priced.

A quick look at the GST finds that Sharia compliant banking, while having all its contracts requiring underlying transactions, asset ownership and movement of actual goods, the impact that the GST may have on Islamic contract will remain similar to what impacts a conventional banking product. There is not expected to have a “worse-off” effect on Sharia compliant banking.

It is heartening to see that Customs has made an effort to understand the various Islamic banking contracts and how it works, and identify potential transactional points where a GST may be imposed. I find the attached document (GST Industry Guide – Islamic Banking (As at 1 November 2013)) extremely useful summary of the intended GST implementation on Sharia banking contracts.

10 particular contracts have been identified and the GST points are outlined accordingly.

Sharia Compliant Banking in Malaysia

Posted on December 30, 2013 by Amir Alfatakh

One of the long running arguments on Islamic Banking in its current state is the level of compliance to the rules of Sharia. There are still many believers out there who are not really believing in Islamic Banking. There are many suspicions in the industry. The main one is that Islamic Banking is a copy of conventional banking with merely a Sharia wrapper around it.

This view is admittedly hard to dispel, unfortunately. Especially in a market where the industry is running 2 parallel banking systems ie Islamic Banking and Conventional Banking side by side. Sometimes, there is an additional element ie Islamic Banking Windows where an Islamic Banking operation resides in a conventional banking, leveraging totally on the conventional banking infrastructure.

The Middle-East has been able to gain more focus on the development of Islamic Banking. Despite Malaysia being one of the prominent pioneers of the industry, the stability of what we are seeing in the Middle-East has been the focus of ensuring the products they offer are deemed more Sharia compliant. While Malaysia is coming out with innovations to catch up with competition from conventional banks, the Middle-East is looking to products they already have and improving them to ensure Sharia compliance, fully backed by an international Shari’a framework.

This is clearly a different approach to the development between the two Islamic Banking industry.

In my view, the Middle-East has a clear advantage when in comes to sustainability. The advantage is simply this; the wants of the consumer. The Middle-East consumer simply WANTS Islamic Banking. No question about it. The consumers are split to either want Islamic Banking or does not want Islamic Banking. The trend is shifting away from the view that they are indifferent to any banking structure. There is a growth in preference for Islamic Banking, and this is the main driver for the development of the industry.

Malaysia, on the other hand, has a different set of consumers. The Malaysian consumers, whom may be just as pious as their Middle-Eastern brothers, continues to view the Islamic offerings with deep suspicion, which mould the attitudes towards Islamic banking industry. Admittedly, some Islamic Banking contracts have been disputed, tested and contested in a court of law, and in some cases the banks are not able defend these contracts properly. Reputational damage done; and some quarters have taken advantage in making the molehill bigger than it really was.

In Malaysia, the consumers only want and expect certain things from their banking product; cost savings features with full benefits, cheap pricing and easy to use. There is strong preference for Islamic Banking products but if there is a better alternative in the conventional banking space, the attitude is “Why not?”. At the end of the day, it all comes down to dollars and sens; “How much does it cost, what savings do I get, how much do I save”? Islamic or non-Islamic? It is all about what money I earn or save which I can use for my family and myself.

Maybe economic standing of the consumers do play a part. A product in Malaysia seems to be more about justice, even if it is just a misplaced perception, and therefore it must be cheap. Islamic Banking products in Malaysia have evolved significantly since its inception in the early 80’s. It is now more equitable, competitive and in many cases, has more “justice” elements in its structure. The issues that may arise 10 years ago, in my view, has already been looked at and smoothed out.

Bank Negara Malaysia (BNM) has introduced many measure to support this idea of justice. The Ibra guidelines to ensure equitable settlement. Regulated Late Payment Charges to ensure consumer rights are protected. Synchronisation with the conventional banks on Responsible Financing and Product Transparency. Tight regulations of the Fees and Charges that an Islamic bank can charge to consumers. Does anyone know how rigorous the process BNM has imposed to approve fees and charges that an Islamic Bank can charge? 4 levels of approval at BNM, even after the Bank’s internal Sharia Committees have approved those charges. To get approval from the internal committee is already tough; to go to BNM to get the final approval is not something we look forward to.

These are good steps, but is it enough? Will the Malaysian consumer take that quantum shift to buy into Islamic banking products?

As I mentioned earlier, the main difference between what’s happening in the Middle-East and Malaysia is the consumer preference. In Malaysia, the consumer wants a product that provides justice to them, whether it’s pricing or features or convenience. Islamic or otherwise, it’s the job of Islamic Banks to win them over.

Therefore, this difference in the consumers mindset in the Middle-East may eventually be an important factor. Since Middle-East consumers just WANT Islamic banking, the industry there is given the benefit of the doubt for its development. Because of this, the emphasis of the development is more on Sharia compliance rather than just pricing, features and innovation.

My limited experience in the Middle-East led me to one important conclusion; consumers want the comfort that when they choose Islamic Banking, the product must assure it meets the Sharia compliance required. By this, it is important to know the people who develop and approve the products. Great weight is placed on the names and reputation of the Sharia scholars themselves. Consumers genuinely want to know who approves the product structure, and want to see the scholars stamp on it. Requests for a copy of the fatwa governing the approval of the product is a norm in the Middle-East. As mentioned, the emphasis is on Sharia compliance, more than merely pricing. There is a huge trust and confidence in the Sharia scholars themselves, in their ability and the quality of decisions made on the products.

For that, I do applaud the consumers who chose Islamic Banking for looking beyond pricing. Many times I have been asked to furnish details and profiles of the Sharia scholars who approved the products. The decision to buy the product is more often than not, based on these profiles. The assurance of Sharia compliant banking became more important, even though there are better pricing elsewhere. And I believe that product innovation will have to come naturally once the performance of the Islamic banking industry is in the upswing. Competition and customer feedback drives innovation, but in the first place we need the right customers asking for the right solutions to be banking with us. As pricing and feature becomes the second priority, the Middle-East banks will be well placed to take a step back and assess compliance and therefore build consumer confidence organically.

Furthermore, many corporates and government-linked institutions mandates their financial dealings to be Sharia compliant, even making it part of their constitution and governance. This will drive the demand for Sharia compliant banking even more. With a ready market seeking, looking and wanting Islamic products and services, one can foresee a sustainable growth in the industry.

I don’t know what can possibly change the consumer mindset for this in Malaysia. Until then, we will always be playing catch up with the conventional banks even when BNM is pushing for a more wholesome Sharia compliant banking system. It could be a painful transition that the Banks will find difficult to stomach when the existing structure seemed to be working well. But without this change, will the industry ever make that quantum leap?

It’s catch-22. Someone needs to be bold enough to see it out, bite the bullet and draw that line in the sand; take a chance on Islamic banking with confidence and without so much suspicion. Maybe that is what is needed to make that paradigm shift in consumers.

Synopsis of 2013 BNM Exposure Drafts

Posted on December 24, 2013 by Amir Alfatakh

The following is what I understood from the various Exposure Drafts issued by BNM on 9 December 2013. Of the 7 exposure drafts that we received, I have earlier summarised the Wadiah Exposure Draft, and I will ignore the Bai-Inah Exposure Draft as we are no longer subscribing to the Bai Inah structure at the workplace.

Please find the remaining Exposure Draft review for your understanding.

2013 ED – Kafalah – One of the key issues for a Kafala (Guarantee) contract is the charging of fees for providing the guarantee services. The main issue has always been the quantum of fees charged, either in percentage of the financing or via a fixed charge for all financing amount. The justification of this charge is always tricky, because technically the fee should not be imposed if there is no call for the guarantee (in cases of no default). The guarantee will only materialise if the customer defaults, that’s when the work happens to justify any fees. Issuing a piece of paper at the start of the relationship to guarantee the amount does not amount to too much work, and there no funds disbursed to any parties (unfunded). To justify the charging of any fees based on percentage instead of actual work, especially for huge amounts of financing guarantee, can be problematic to justify in the eyes of Sharia.

2013 ED – Wa’d – At one point of time, Wa’ad (Promise) seems to be the answer to many structures, where a promise is given without any requirement to transact before a specific event. The terms therefore can be negotiated and re-negotiated without the need to strictly specify the terms of the transaction and re-signing of documents. This gives a lot of leeway for deals to happen.However, at the end of the day, Wa’ad remains as only a promise, legally distanced from a contract or an agreement. Enforcement at the courts are therefore without full confirmation of all the terms, and makes for a loose structure and potential disputes. This flexibility and enforceability remains one of the key risks to a Wa’ad contract, which is why until today Wa’ad is generally transacted between known parties i.e. between established and trusted Financial Institutions.

2013 ED – Wakalah – Wakala (Agency) will remain an integral contract for Islamic Banking as it validates a lot of action that can be done by the Bank, in order to remain efficient. In general, Banks hold a lot of expertise in various fields, such as investments, financing, leasing and trading; something a normal customer may not want to be involved in on a daily basis. An Agency arrangement conveniently provides for this. Anything that improves the efficiency by leveraging on the Bank’s expertise and infrastructure, can be arranged via Agency. However, the way we practice it usually is transparent to the customer. In practice, Agency Fees are the right of the Agent, and the waiver of such fees, although allowed, is sometime seen as not adhering to the spirit of Agency and entrepreneurship. You do the work as an Agent, but don’t earn any fees as it is waived. In real life, this does not happen as whenever a work is completed, you should earn something.

2013 ED – Tawarruq – As Tawarruq (Three-party Murabaha Sale) becomes more prominent in the Malaysian market, I was surprised that the ED was not more comprehensive than this. There are sequencing issues not addressed but more importantly, there is a lack of illustration on what is defined as Tawarruq. Is there any difference between a Tawarruq and Commodity Murabaha, which essentially is a 4 party transaction? The issue of interconditionality is adequately addressed in the ED but I would love to have seen more details related to products, such as for Islamic Credit Cards and Revolving Credit with a rebate structure (Ibra’) based on a floating rate financing. It mentions that the discount can be given based on certain benchmark agreed by the contracting parties. This opens the clause to various interpretation as it is without real detail.

I will look at the Hibah (Gift) ED but essentially, it is related to the Wadiah ED. Most of what’s covered under the Hibah ED is relevant to the Wadiah product, such as the discretionary Hibah issue and the giving of Hibah becoming a business practice (Urf Tijari) which can be construed as Riba (Usury). Wait for the posting.

Thank you for reading, hope everyone have an enjoyable holiday period ahead. Wasalam.

Readings : December Papers x 3

Posted on December 23, 2013 by Amir Alfatakh

And to close off the year, BNM gave us a further 3 reading gifts for us to enjoy our holidays:

The Murabahah Standards looks interesting, and so is the Mudarabah Concept Paper. Do have a read and tell us what you think.

Looking forward to the coming holidays.

Exposure Drafts for 2013

Posted on December 11, 2013 by Amir Alfatakh

Today we are given additional reading materials; Exposure Drafts!!!

By my last count, 7 new Exposure Drafts was published by BNM yesterday and now it is time to digest them. As it is, there is so many to digest already. Quick and fast after the Bai-Inah clarifications in late 2012, we were given tight deadlines for the IFSA bill to comply. Add to that, the IFSA “forces” us to re-look at the Investment Account Concept Paper and the Rate of Return Framework if we were to look at retaining a Mudaraba or Wakala deposit structure. Then comes the deadline that the compliance to the Investment Account concept paper is to be met by 30 June 2014.

More sleepless nights? Yes, especially since the industry is struggling in coming up with a Current Account Savings Account alternative to Mudaraba.

Now we welcome the new Exposure Drafts and the boss has given me 2 days to read the relevant ones. Will I be able to digest them? The names of my new friends as follows:

And generally, Exposure Draft is like the engagement before a marriage. You may give feedback, but the deal is already on. It is just a formality.

This will make for an interesting reading, and an even more interesting new year.

Conversations on Islamic Banking in Malaysia

Posted on March 20, 2013 by Amir Alfatakh

Malaysian Islamic Banking industry is undergoing a massive structural change. I was a bit surprised when we had visits from several research institutions asking Islamic Bankers on opinions on how to make Islamic Banking in Malaysia more “Islamic”. From those discussions, I got the impression that the Central Banks is really pushing the Islamic Banking agenda, which will be a quantum jump away from the current model of “replicating” the conventional cousin’s model. This quantum leap also means that the model that Central Bank envisioned will be substantially different to the Islamic Banking model practised in the major geographies in the Middle East.

What we practitioners picked up in the discussions were the persistent questions of:

Why has banks not started to offer products based on more “Islamic” products such as Musyaraka financing or Mudharaba financing?
What does bank think about contracts such as Salam?
What does the bank think about the leveraging model i.e. the management of Islamic funds via the conventional Treasury function?

This line of question leads to the impression that the standard banking model should be evolved into a more “Islamic” structure of risk-taking, profit-sharing, venture-financing and cleaner utilisation of customer investments and funds. This is a clear departure from the traditional way a bank is set-up, whether pure Islamic Bank or Islamic-windows operation. The only response we can give was: The above products requires a different view on risk-taking and credit, and moves closer to the model of venture-capitalist and development banks. Traditional bankers will not be able to assess the risks on such products, and shareholders will be open to a higher risk-profile to demand a higher return on their funds.

ISLAMIC BANKING MODEL : HOW DIFFERENT IS DIFFERENT?

This envisioned model will be something not entirely new. There are already working models, but generally the stakeholders, including the customers, MUST understand (and accept) the concept the risk vs return pay-off of such model. Something very similar to the risk-taking vision of Islamic financing is Venture Capitalism (although many shudder to the word “capitalism”).

Venture capitalist works on the ratio that in 100 customers, maybe 5 or 10 customers are able to survive their start-up period and have decent returns, and the returns to the venture capitalist is sufficient to cover the losses incurred from the remaining customers. The risks of losing the capital is high, and in the cases of Development Banks, government backing usually covers for loss-making enterprises, so long as it serves a purpose toward the national agenda. But this is the essence of risk-taking, and its corresponding rewards. If Islamic Banking want to expand, the thinking must therefore be expanded into this space, i.e. the realm of Mudharabah financing.

Musyarakah

Other models includes a co-operative model where typically a group of “investors” enter into a collective and co-operative agreement to embark on an entrepreneurial endeavor. The money is pooled to create capital and business is run by the “elected committee” and performance is reported regularly to all stakeholders. Profits are shared according to agreed payout ratios or to be re-invested into the business; losses are borne according to equity of each investor. And the manager of the business earns a management fee. This is a typical Musyarakah arrangement.

Such models can be easily formalized under Islamic Banking, but we realized the fact that there is a huge monster in the shadows, ready to pounce on efforts to grow the Islamic Banking envisioned by the Central Bank that falls along this route.

CONVENTIONAL BANKING. HUGE, OLD, RICH MONSTERS.

Developing the Islamic Banking in its present form of replication and innovation alongside the huge monster of Conventional Banking has already proved to be a challenging task. Developing a truly “Islamic” Islamic Banking will pose an even greater challenge. Can Islamic Banks afford another gestation period of regulatory upheaval, customer re-education, corporate buy-in, legal re-thinking and more importantly the impatience of shareholder dollars while the kinks of the new model are being smoothened out? Can we afford to fall further behind while we get our new act together? The so-called great momentum of Islamic Banking growth will be lost, and at a risk of losing even further ground as Conventional Banking takes up the slack left opened by Islamic Banking. It is hard to win back customers, if customers’ confidence in the model is no longer there (albeit temporary). To switch to a different banking model, no matter how noble the intention, will put the Islamic Banks right to the sword. It will be “make or break” for all.

TYPES OF IFI

We will go up against a huge giant which will only get stronger with this. Political-will can help, together with strong regulatory push for industry survival. But the next question to be asked is that, will the market itself be ready for such a shift in thinking? Can they accept that a Bank is no longer a Bank, but instead a partner in their businesses? Do they even want Banks to partner them? Are they willing to share the risks, and therefore the equivalent returns with the Banks? If today they are paying a cost of capital financing at about 7.00% per annum, and earning a net margin on their business at about 15% per annum, under the regime of profit sharing at 70%:30%, are they willing to share their net margin of about 10.50% with the Bank? Alternatively, will the Bank be willing to take the risk of sharing profits if the returns are lesser than 7.00%? What about loss making endeavours? Will only riskier businesses be interested in such models, since presumably such business will not have been able to obtain funding coming from the “conventional” credit assessments? It will be a scenario where the Islamic Banks will “share risks” if it is a high risk customer, and conventional Banks will “transfer all risk” to its low-medium risk customers they onboard.

It will be interesting to finally see the Central Bank’s plans for the future. I am sure there is something in the works, especially after we just had a third research team ask us the same, same question again. “What are the things holding back the Bank from introducing these types of “Islamic” Islamic products?”. The one answer that crops up in my mind.

“That huge, rich monster standing right next to us. Ready to pounce.”

Similar Article: Old Qahwah in a New Cup?

The Death of Bai-Inah

Posted on December 22, 2012 by Amir Alfatakh

It looks like it’s going to be a very busy year in Malaysia.

It was with surprise that the Islamic Banking practitioners are called to Bank Negara Malaysia (BNM) for the briefing pertaining the use of the contract of Bai Inah. The date was 16th November 2012 and it was a packed room at Sasana Kijang. Something was in the air, and little did we know that it is a meeting the Bai-Inah will be officially “killed” in that meeting.

But before we go further, BNM again reiterate that there is nothing wrong with the Bai-Inah as a concept, and the contract is valid in practice. However, the main concern that BNM has were mainly on the way the contract is executed, that it no longer reflects the orginal intention envisioned for the contract. One of the key issues that BNM highlighted is on the issue of “Interconditionality”. This simply means that should if one party sells its asset to another party, at a selling price, the original owner of the asset should not impose on the other party to on-sell it back to the original owner. One party should not compel the other party to re-sell the asset back to the same party. This smacks of shades of “arranged trade” i.e. the use of hilah to validate an Islamic sale, and this compulsion is explicitly captured in legal documents to protect the interests of the original owner. Interconditionality means that for the customer to obtain cash, the customer MUST sell back the asset to the Bank, and failure to do so will result in the whole transaction being void, even if the first sale contract has been completed and concluded.

This doesn’t invalidate the Bai-Inah transaction in the first place, as it is a “willing buyer willing seller” scenario. But the issue arises where the buyer is not willing; what is his options then?

BNM highlighted that the Bai-Inah structure must therefore remove the “interconditionality” where the customer is compelled to sell back the asset to the Bank. The customer, as in any real trade, must be given the option to either sell the asset back to the Bank, or sell it on the open market, where the customer takes the pricing risks for such sale.

The contention is that the Bank must not compel the customer to only trade with the Bank, but also provide an option to sell this asset into the open market. This effectively separates the Bai-Inah contract into 2 separate Murabaha contract i.e.

the first contract is when the Sale of Asset by the Bank to the customer at a Selling Price (and Asset ownership is transferred to customer), and
the second contract is for the customer to on-sell the Asset now owned by him to a third party or if he chooses, back to the Bank. The customer may even keep the Asset in his ownership, while paying off the debt to the Bank. One contract will therefore not be dependant on the other i.e. the interconditionalty of the sale is now removed.

The uproar in the industry was therefore expected. Many Islamic Banks have built up a substantial portfolio for their personal financing, credit cards and corporate working capital based on the contract of Bai-Inah. The options given by BNM was to either comply with the removal of the interconditionality in the Bai-Inah contract, or move to another contract where interconditionality is less than a problem, such as a Tawarruq or Commodity Murabaha structure. Many Banks have chosen the route of trying to comply with the removal of interconditionality, while other Banks view that the Tawarruq option was the right direction.

Personally, I feel trying to comply with the Bai-Inah requirements without “interconditionality” is at best a temporary measure. The way forward is to look at the Sharia structure of Tawarruq (Commodity Murabaha) and finding ways of making it efficient as soon as possible. This will be the key driver in the Islamic Banking industry in the coming year. And the death of Bai-Inah will be good news for our Middle-Eastern colleagues; one less controversial contract to talk about.

Like I said. It’s going to be a busy, busy year for us, as BNM gave the Banks until 30th January 2013 to either buck up or ship out. Time to burn that midnight oil.

Ethica Institute

Posted on June 13, 2011 by Amir Alfatakh

Today I came across a very useful site which I feel worthwhile to share with readers. The Ethica Institute of Islamic Finance has this section of a Database for Q&As relating to Islamic Banking, with Scholar-approved answers. I make no guarantee of the “Scholar approved” statement, but reading some of the answers to the questions, it is consistent with the practices and experiences that I have in this limited time in Islamic Banking industry.

I attached their link for readers and hope they can be useful to you too.

(## No I don’t get a commission for this!)

If there should be any other links that readers may find useful for other readers, don’t hesitate to send the link to me and I will add it to the list of useful link on this website.

Shukran and Assalamualaikum all…

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