scholarly journals THE APPOINTMENT OF MEMBERS TO THE SHARIAH ADVISORY COUNCIL OF CENTRAL BANK OF MALAYSIA: LEGAL ISSUES

2017 ◽  
Author(s):  
Mohammad Azam Hussain ◽  
Rusni Hassan ◽  
Alias Azhar ◽  
Aznan Hasan
Keyword(s):  
Central Bank ◽  
Research Methodology ◽  
Analytical Method ◽  
Islamic Law ◽  
Legal Issues ◽  
Advisory Council ◽  
Islamic Finance ◽  
Legal Research ◽  
Statutory Requirement ◽  
The Future

Abstract: In Malaysia, the appointment of members to the Shariah Advisory Council (SAC) of the Central  Bank  of Malaysia (CBM) is prescribed by the Central Bank of Malaysia Act 2009 (Act 701). The Act stipulates the provisions pertaining to the eligible persons to be appointed to the SAC, procedures, terms and conditions of appointment and also remuneration and allowances for the members of the SAC. In this regard, the question arises whether the prescribed provisions are sufficient to regulate the appointment of members to the SAC and free from any shortcomings. Hence, this study sought to analyse the existing legislations governing the appointment of members to the SAC and to analyse the legal issues arising from the existing legislations. By using legal research methodology, this article analysed the entire provisions dealing with the appointment matter. Based on the data collected from statutes passed by the Parliament of and Malaysia published materials, the analytical method was used by scrutinizing the related provisions of the law pertaining to the appointment of members to the SAC. This study found that, several loopholes  exist  in  the  statutory requirement of the existing law which needs to be addressed by the respective authoritative body in order to avoid any legal conflict in the future. Hence this study is significant in order to strengthen the existing legislation governing the SAC especially related the appointment process.   Keywords: Shariah advisory council, Shariah advisor, Islamic finance, Islamic law, Central Bank of Malaysia Act 2009.   Abstrak: Di Malaysia, pelantikan anggota Majlis Penasihat Shariah (MPS) Bank Negara Malaysia (BNM) ditetapkan oleh Akta Bank Negara Malaysia 2009 (Akta 701). Akta menetapkan peruntukan-peruntukan berkaitan orang yang layak untuk dilantik menganggotai MPS, prosedur, terma dan syarat-syarat perlantikan dan juga saraan dan elaun anggota-anggota MPS. Dalam hal ini, persoalan timbul sama ada peruntukan yang ditetapkan memadai untuk mengawal selia pelantikan anggota MPS dan bebas daripada sebarang kekurangan. Kajian ini bertujuan untuk menganalisis undang-undang sedia ada yang mentadbir pelantikan anggota MPS dan untuk menganalisis isu-isu undang-undang yang timbul daripada undang-undang sedia ada. Dengan menggunakan metodologi penyelidikan undang-undang, artikel ini menganalisis keseluruhan peruntukan yang berkaitan urusan pelantikan anggota MPS. Berdasarkan data yang telah kumpul daripada statut-statut yang diluluskan oleh Parlimen Malaysia, kaedah analisis telah digunakan dengan meneliti peruntukan-peruntukan undang-undang yang berkaitan pelantikan anggota MPS. Kajian ini mendapati bahawa, beberapa kelemahan wujud dalam kehendak statut dalam undang-undang sedia ada yang perlu diberi perhatian oleh pihak berkuasa yang berkaitan dalam usaha mengelak daripada berlaku sebarang konflik undang-undang pada masa hadapan. Oleh itu, kajian ini adalah sangat penting untuk mengukuhkan undang- undang sedia ada yang mengawal selia MPS terutamanya berkaitan proses pelantikan.   Kata kunci: Majlis Penasihat Shariah, Penasihat Shariah, Kewangan Islam, Undang-undang Islam, Akta Bank Negara Malaysia 2009.

Islamic finance arbitration: enforceability under the New York Convention 1958 of arbitration awards made following a reference to the Shariah Advisory Council under the Central Bank of Malaysia Act 2009

2019 ◽  
Vol 35 (2) ◽  
pp. 245-261
Author(s):  
Abdullah Abdul Rahman
Keyword(s):  
New York ◽  
Central Bank ◽  
Research Method ◽  
Advisory Council ◽  
Islamic Finance ◽  
Legal Research ◽  
Financial Transaction ◽  
Arbitration Clause ◽  
New York Convention ◽  
Governing Law

Abstract This article analyses the enforceability of arbitration awards, rendered following a reference to the Shariah Advisory Council of the Central Bank of Malaysia under sections 56 and 57 of the Central Bank of Malaysia Act 2009, under the New York Convention 1958 which has been adopted in 159 countries. This article employs the theoretical legal research method and has compared sections 56 and 57 against the requirements of the Convention for enforceability of awards, in particular the fundamental attributes of an arbitration. The conclusion is that such awards would not be enforceable under the Convention as they infringe Article V(1)(d) of the Convention. This would cause such awards to lose the feature of global and convenient enforceability usually attached to arbitration awards. These consequences make it less attractive, where there is an arbitration clause in the Islamic financial transaction documentation, to choose the Malaysian law as the governing law whether with regard to the substantive merits or the arbitration proceedings. This article recommends that amendments be made to sections 56 and 57 to make the reference to the Shariah Advisory Council optional rather than mandatory and its ruling advisory instead of binding, in respect of arbitration only, so that the global enforceability of such arbitration awards under the Convention is not undermined.

scholarly journals The Significance of Central Bank of Malaysia Act to Islamic Banking

2019 ◽  
Vol 6 (4) ◽  
pp. 158-180
Author(s):  
Aishath Muneeza
Keyword(s):  
Central Bank ◽  
Case Law ◽  
Legal Framework ◽  
Legal Issues ◽  
Advisory Council ◽  
Islamic Banking ◽  
Legal Research ◽  
Or Practice ◽  
To Come

Malaysia is considered as the cranium of Islamic banking. The purpose of this paper is to find out the significance of Central Bank of Malaysia Act (CBMA) to Islamic banking by analysing the relevant provisions of CBMA and the reported case law in Malaysia in this regard. This is a legal research where the provisions of this Act relevant to Islamic banking is reviewed and assessed in the light of reported case law. It is found that there is a need for the legislature to come up with the specific directions or practice notes in which Shariah issues of the case could be differentiated from factual issues/legal issues. It is hoped that the outcome of this paper will assist those jurisdictions aspiring to have a sophisticated legal framework for Islamic banking to comprehend the significance of having statutory provisions to establish the apex Shariah Advisory Council at the Central Bank level.

scholarly journals THE ESTABLISHMENT OF THE SHARĪᶜAH ADVISORY COUNCIL OF CENTRAL BANK OF MALAYSIA: SPECIAL REFERENCE TO SECTION 51 OF CENTRAL BANK OF MALAYSIA ACT 2009 (ACT 701)

2020 ◽  
Vol 5 (21) ◽  
pp. 257-266
Keyword(s):  
Central Bank ◽  
Qualitative Method ◽  
Legal Aspect ◽  
Organization Structure ◽  
Advisory Council ◽  
Primary Data ◽  
Legal Interpretation ◽  
Legal Basis ◽  
Legal Research ◽  
Statutory Requirement

Sharīᶜah Advisory Council which established under the aegis of the Central Bank of Malaysia (CBM), is designated as the highest authoritative body for the ascertainment of Sharīᶜah ruling in the matters of Islamic financial business. This apex advisory council is currently regulated by the Central Bank of Malaysia Act 2009. Hence the establishment of this council is pursuant to the statutory requirement. This article seeks to analyse the statutory requirement of Section 51 pertaining to the establishment of the Sharīᶜah Advisory Council of Central Bank of Malaysia. This is doctrinal legal research with the qualitative method. The primary data of statutory provisions were scrutinized by using the method of content analysis. The study found that there are several deficiencies of the provision in dealing with the establishment of Sharīᶜah Advisory Council pertaining to the legal interpretation, the legal basis for the establishment of Sharīᶜah Advisory Council, the procedures to be adopted and the position of the Sharīᶜah Advisory Council within Central Bank of Malaysia’s Organization Structure. Finally, the article suggests several amendments be made by respective authorities in order to strengthen the legal aspect of the establishment of Sharīᶜah Advisory Council of Central Bank of Malaysia.

scholarly journals The Iddah Period as a Reason for Cancellation of Marriage

Lentera Hukum ◽  
2019 ◽  
Vol 6 (2) ◽  
pp. 233
Author(s):  
Rahayu Mulia Romadoni
Keyword(s):  
Islamic Law ◽  
Legal Issues ◽  
Judicial Decision ◽  
Legal Argument ◽  
Legal Research ◽  
Case Study Methodology ◽  
Waiting Period ◽  
Religious Law ◽  
Study Methodology

The iddah period is a waiting period that applies to a woman whose marriage is broken legally through a divorce or physically through the death of a husband. Any woman who has not had a prior marriage must observe the iddah period. As one of the legal conditions of marriage, failure to complete the iddah period can result in the cancellation of any secondary marriages. In this study, judges release a verdict in accordance with the laws and legislation of Indonesia, namely Law No. 1 of 1974 on Marriage and a compilation of Islamic law found in Al-Qur'an and Hadith. This article uses legal research based on positive laws including judicial decision. This study concluded that if a marriage is prohibited for a failure to satisfy the condition of iddah, that marriage must be canceled. This article employs statute and conceptual approaches to legal research, as well as case study methodology, with the aim of departing from the views and doctrines that develop in law in order to build a legal argument that addresses legal issues.  Analyzing the Decision of the Mojokerto Religious Court Number 1365/Pdt.G/2014/PA.Mr, this study argues that prospective spouses are responsible for awareness of their prospective partners’ marriage eligibility and fulfillment of all requirements, material and formal, clearly stipulated in state and religious law. Keywords: Iddah, Islamic Law, Marriage Cancellation

scholarly journals Permissibility of Third-Party Guarantee for Capital in Mudhārabah based on Maslahah; A Study In light of the resolution of (SAC-BNM)

2021 ◽  
Vol 1 (3) ◽  
pp. 26-55
Author(s):  
Mowaffak Noureddin ◽  
Azman Bin Mohd. Noor ◽  
Arif Ali Arif
Keyword(s):  
Public Interest ◽  
Analytical Method ◽  
Research Method ◽  
Banking Sector ◽  
Third Party ◽  
Advisory Council ◽  
Islamic Finance ◽  
Descriptive Research ◽  
The Third ◽  
Research Studies

This research studies public interest (Maslahah) and its consideration in Shari’ah. its classifications and regulations and the significant role it plays in establishing evidence on the contemporary juristic issues. More especially. in the field of Islamic finance and banking sector which issues are increasingly growing and expanding in recent times. The research studies one of these issues. which is the of permissibility of a third-party guarantee of capital in Mudhārabah transaction based on the notion Maslahah. The study was conducted on basis of the resolution adopted by the Shari’ah Advisory Council. Bank Negara Malaysia. (SAC-BNM) on the issue. The researcher used descriptive research method on descriptive related studies to describe the issue. while analytical method was used in analyzing the issue. critically discussing it and providing solution over it. Of the findings arrived at by the researcher are the third-party guarantee is permissible. if he is independent of Mudarib and Rabbul mal. benefactor and there is misconduct or negligence by him. The guarantee is not permissible if it is proven that the capital has been damaged without misconduct by Mudarib. and when the capital is damaged in the normal circumstances. if Mudarib establishes evidence that the damage occurred without misconduct or negligence on his part. it is not guaranteed in order to preserve his interest. and if he is unable to provide evidence that he has not violated the capital. it is guaranteed. in order to preserve the interest of Rabbul mal. and this is the interest consideration.

Management of fatwa standardisation on the practice of bay’ ‘inah contract in Malaysia: an analysis according to usul al-Fiqh and mura’aht al-Khilaf method

2020 ◽  
Vol ahead-of-print (ahead-of-print) ◽  
Author(s):  
Fathullah Asni
Keyword(s):  
Islamic Law ◽  
Deep Understanding ◽  
Field Studies ◽  
Advisory Council ◽  
Islamic Finance ◽  
Islamic Banking ◽  
Controversial Issues ◽  
Content Type ◽  
Interview Method ◽  
Library Research

Purpose This study aims to investigate the practice of bay’ ‘inah contract in personal and home financing products by some Islamic Finance Institutions (IFIs) and examine the differences in the selection of contracts in banking products amongst IFIs mainly involving personal financing. The study will also propose a solution to the problem of differences and simultaneously standardise personal financing contracts in Malaysia. Design/methodology/approach The methodology of this study is qualitative, in which the data are collected through library research and field studies. The library research is done by examining books of usul al-fiqh (principles of Islamic jurisprudence), mura’aht al-khilaf, maqasid shariah (objectives of Islamic law) articles, statutes and related circulars, while field studies are conducted in an unstructured interview method with some members of Shariah Advisory Council (SAC) and academicians from Bank Negara Malaysia (BNM), IFIs and public university. Findings The findings show that there is a difference in views amongst SAC members in IFIs on bay’ ‘inah contract that effects the differences in the execution of such contract in banking applications. The study found that the bay’ ‘inah contract was non Shariah (Islamic law) compliant based on Shariah’s arguments and the opinion of the majority of past and present Islamic scholars. The study found that the BNM’s SAC did not allow the bay’ ‘inah contract to be practiced in personal and home financing products. Hence, this study proposes standardisation steps based on differences in the problems studied. The study also suggested that the SAC of BNM make improvements and updates on its solution regarding the bay’ ‘inah contract so that it is not misunderstood especially amongst IFIs. Research limitations/implications The study is only looking at one case study, which is the bay’ ‘inah contract practiced by the IFIs in Malaysia. Practical implications This study proposes the standardisation of personal financing products practiced by the IFIs. The results of this study can reduce Sharīʿah non-compliance products in the market. The results of this study have gained a deep understanding of the solution of bay’ ‘inah contract made by the SAC of BNM. The findings also reduce the conflict between Shariah scholars locally and internationally and can restore the image of Islamic banking in Malaysia from engaging with controversy products or contracts. Social implications The confidence of the public in Islamic banking is increasing as there is no contractual engagement with serious controversial issues and contracts similar to the concept of riba and hilah (trick) that is prohibited by Islamic law in IFIs. Originality/value This study analyses the differences of fatwa (a ruling on the point of Islamic law) about bay’ ‘inah contract decided by some SACs of IFI based on the discipline of usul al-fiqh. The study found that the bay’ ‘inah contract is not allowed by Islamic law. The study has proposed the standardisation of the fatwa differences based on the concept of mura’aht al-khilaf and the concept of standardisation in Islamic finance and to standardise personal financing products amongst IFIs in Malaysia.

scholarly journals Legal Remedies for Judicial Review for Investigators of Pretrial Decisions Regarding the Invalidity of the Order to Terminate the Investigation in the Perspective of Law Enforcement with Certainty

2021 ◽  
Vol 8 (10) ◽  
pp. 355
Author(s):  
Eko Wiyono ◽  
I Nyoman Nurjaya ◽  
Prija Djatmika ◽  
Bambang Sugiri
Keyword(s):  
Law Enforcement ◽  
Judicial Review ◽  
Criminal Procedure ◽  
Legal Issues ◽  
Legal Research ◽  
Legal Principles ◽  
Legal Rules ◽  
Legal Remedies ◽  
Procedure Code ◽  
The Future

Arrangements regarding legal remedies that can be submitted by investigators against the judge's decision regarding investigative actions in the form of terminating the investigation with the issuance of an Investigation Termination Order (SP3) in pretrial cases. Law No. 8/1981 on the Criminal Procedure Code was not expressly enforced. This article aims to identify legal remedies against pretrial decisions regarding the invalidity of the Termination of Investigation Order (SP3) in the future. This paper is normative legal research, namely the process of finding legal rules, legal principles, and legal doctrines to address legal issues at hand. The result of this study is the arrangements regarding extraordinary legal remedies in the form of a judicial review of criminal decisions that have permanent legal force and are not acquitted or released from all previous legal claims before the entry into force of the Criminal Procedure Code that have been regulated can also be submitted by interested parties. Necessary to reconstruct the regulation of legal remedies against pretrial decisions, especially extraordinary legal remedies in the form of reconsideration, especially by investigators as parties who are very interested in the action.

scholarly journals [ALMUSHARAKAH AL-MUTANAQISAH AND APPLICATION IN MALAYSIA] AL-MUSHARAKAH AL-MUTANAQISAH WA TATBIQATUHA FI MALIZIYA

2021 ◽  
Vol 5 (1) ◽  
pp. 142-152
Author(s):  
Abada Tawfik Ahmed Bahnasy
Keyword(s):  
Central Bank ◽  
Financial Institutions ◽  
Historical Background ◽  
Advisory Council ◽  
Islamic Finance ◽  
Islamic Banks ◽  
Practical Application ◽  
Modern Methods ◽  
Islamic Financial Institutions ◽  
The Common

This paper aims to introduce one of the common contracts in the field of Islamic finance, which is the diminishing musharakah contract or the diminishing musharakah ending with ownership. Which is considered one of the modern methods that Islamic banks deal with, and it is a new investment method that was not known to the oldest jurists, and it is one of the Shariah financing formulas to counter interest-based dealings with interest-based banks. This paper demonstrate this contract after the introduction with historical background on it. Then explain its reality in theory and how to apply it in Islamic banks or traditional banks that offer Islamic products. This paper did not address the discussion of shariah issues in detail - due to the large number of jurisprudential differences in them - as well as the limited space for the paper. This paper focused on the practical application of this contract in Malaysian Islamic banks. Then the research concluded with the conclusion that this contract is considered one of the most suitable contracts that Islamic financial institutions can offer as a product in which the operational problems and Shariah problems are reduced. Especially after the decision of the Sharia advisory council of the Central Bank of Malaysia (SAC - BNM) at its 56th session on February 6, 2006, where it decided that "Musharakah Mutanaqisah (MM) financing is a form of contract recognized in the Islamic financial system".

scholarly journals THE METHODOLOGICAL STRUCTURE FOR LEGAL RESEARCH: A PERSPECTIVE FROM THE MALAYSIAN LAND LAW AND ISLAMIC LAW

2021 ◽  
Vol 19 (17) ◽  
Author(s):  
Noor Azimah Ghazali ◽  
Ibrahim Sipan ◽  
Farah Nadia Abas ◽  
Ahmad Che Yaacob
Keyword(s):  
System Theory ◽  
Islamic Law ◽  
Legal Issues ◽  
Theory Approach ◽  
Land Law ◽  
Future Change ◽  
Legal Research ◽  
Academic Knowledge ◽  
Expert Opinions ◽  
Better Regulation

A legal research shall be secured with the idea to facilitate a future change; either in the law itself or in the manner of its administration from the production of ‘pure’ academic knowledge which is concerned legal doctrines. Therefore, this paper purpose is to propose a methodological structure for legal research within perspective Malaysian Land Law and Islamic Law to establish a regulation or amendment in the existing foundation. This paper adopts method of content analysis to understanding on the underlying reasons through expert opinions on the legal issues. The finding of this research revealed that a legal methodological framework is easily simplified in form of system theory approach. This type of methodological structure is common amongst the legal researchers, lawyers and legal scholars who embrace Pure and Applied Legal Research. The methodological structure for legal research in form of system theory shall make a better regulation proposal in the perspective of Malaysian Land Law and Islamic Law. By adopt this methodological structure; researchers shall propose new regulation or amendments as legal researchers, lawyers and legal scholars.

scholarly journals Interpretation of The Phrase “Coercion” in The Compilation of Islamic Law as Reasons for Cancellation of Marriage

2021 ◽  
Vol 15 (2) ◽  
pp. 271-288
Author(s):  
Neng Widya Millyuner ◽  
Adi Nur Rohman ◽  
Elfirda Ade Putri
Keyword(s):  
Islamic Law ◽  
Legal Issues ◽  
Third Party ◽  
Legal Research ◽  
Conceptual Approach ◽  
Sociological Approach ◽  
Legal Implications ◽  
Legal Consequence ◽  
Religious Courts

Marriage is a common thing in society with ubudiyyah elements in it. However, legal issues often accompany the sanctity of the marriage bond itself, such as the cancellation of a marriage due to an element of coercion from a third party. Article 71 Compilation of Islamic Law (KHI) states that one of the reasons for being able to apply for a marriage cancellation is because of coercion when the marriage took place. The purpose of this study is to analyze the meaning of the phrase "coercion" as a reason for annulment of marriage and its accompanying legal implications. This type of research is classified as normative-empirical legal research using a statutory approach and a conceptual approach plus a sociological approach as a tool. This research refers to a variety of primary, secondary and tertiary legal materials compiled and traced through literature studies and interviews with judges of the Religious Courts. The legal materials that have been collected are then analyzed descriptively and analytically. The results showed that what is meant by coercion in marriage is a marriage that occurs not because of one's own will or feels that he is under threat. As a form of legal consequence, annulment of a marriage by force is different from divorce, where the marriage bond that occurred before the breakup of the marriage is considered never to have occurred.

Sign in / Sign up

Export Citation Format

Share Document