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  • The Objectives of Sharīʿah in Nomination for the Payment of Family Takaful Benefits

    Abstract A family takaful certificate is subscribed by a takaful participant for the purpose of preparing financial support for his dependants after his death. The takaful benefits could then be made payable to a nominee named as the beneficiary under conditional hibah (gift). In this respect, the participant is free to decide to whom the benefits are to be given since the law is silent as to the criteria of the beneficiary. This situation gives rise to the issue on whether such a practice fulfils the objectives of Sharīʿah, especially when the nominated beneficiary is not the sole dependant of the deceased participant. Therefore, this research aims to evaluate the status of family takaful benefits, analyse the rules of conditional hibah from the Sharīʿah perspective and propose solutions whenever necessary. The research adopts doctrinal analysis by examining existing primary and secondary materials including statutory provisions and other legal and non-legal literatures. The study predicates that the application of conditional hibah to the whole benefits does not reflect the objectives of Sharīʿah if determination on the status of the benefits is solely based on the nomination made by the participant. It is observed that takaful benefits payable from the Participant’s Account should be considered as the deceased’s estate and must be distributed according to fara’id or Islamic law of inheritance. Conversely, the sum covered payable from the Participant’s Special Account may be paid to the deceased’s dependants whose criteria are determined by the Sharīʿah Advisory Council as the highest authority in Islamic financial matters.

  • Creating Security to Finance Waqf Property Development in Malaysia: Issues and Solutions

    Abstract Legal and Sharīʿah issues abound in creating security to finance waqf property development in Malaysia, for it involves integrating the Sharīʿah concept of waqf with requirements of Malaysian land law as well as the requirements of modern finance under civil law. Banks and financial insti­tutions will not generally finance property development without any form of security for the loan. The best type of security transaction under Malaysian land law is to create a charge on the land under the National Land Code 1965, rendering the land liable as a security which upon default of the chargor, would entitle the chargee to seek statutory remedies including sale of the land. Such may not be feasible for waqf properties due to the inalienable nature of such properties. Due to the remedy of sale of the land upon default, the same issues would arise in regard to other types of securities like a lien and a loan agreement cum assignment. There is therefore a need to diversify the available options in creating security over waqf property. What are the existing Sharīʿah restrictions on waqf property? Do these restrictions affect the creation of security over waqf lands under conventional Malaysian land law? What are the legal and Sharīʿah issues relating to creating a charge over waqf lands? What are some feasible options? Initial findings are that creating a charge on a lease of waqf land as well as resorting to a hybrid form of a traditional security transaction in Malaysia, called ‘Jualjanji’, may hold some answers. Through doctrinal legal research and content analysis, this chapter explores these issues and recommends feasible solutions.

  • Introduction: Revisiting the Confines and Significance of Islamic Finance Law
  • Fintech and the Transformation of the Islamic Finance Regulatory Framework in Malaysia

    Abstract The worldwide trend of Financial Technology (Fintech) reached the Malaysian shores in the past few years, making the observations and analysis of this subject more critical than ever. Furthermore, Fintech has developed to be an unavoidable area in the Islamic finance industry. Therefore, this chapter seeks to analyse the development of Fintech in the Islamic finance industry and its connection to Islamic economics, as well as the impact towards existing regulatory mechanisms. While the scarcity of studies on this area is apparent, the authors have identified the undebatable need to regulate the development of the Fintech industry and its effects while analysing the drawbacks and positive effects of Fintech towards parties involved in the Islamic finance industry. This chapter objectively studies the phenomenon of Islamic Fintech globally with emphasis on Malaysia through analytical research methods by utilising existing facts and findings on Fintech to make proposals for possible issues identified. Existing legal frameworks are studied and scrutinised to determine whether they can accommodate the rapidly evolving Fintech. The new Regulatory Sandbox by Malaysia’s central bank and existing laws are also examined. It is found that there is a room for improvement to the current regulatory framework.

  • Combating Money Laundering and Terrorism Financing: Perspectives from Maqāsid al-Sharīʿah

    Abstract Money laundering and terrorism financing are financial crimes which affect the economic stability and integrity of the country. In this respect, the relevant regulator has a duty to preserve and protect the financial stability of the country. This duty is in line with the concept of the protection of wealth (hifz al-mal) under the maqāsid al-Sharīʿah or higher objectives of Islamic law framework. The objective of this chapter is to examine the protection of wealth vis-á-vis money laundering and terrorism financing from the maqāsid al-Sharīʿah perspective. This study analyses the primary and secondary legal sources on the laws and regulations on anti-money laundering and counter financing of terrorism while also considering the primary and secondary sources of Islamic law. This study is significant as it makes an exploration of the maqāsid al-Sharīʿah perspectives and discusses the position of unlawful wealth that is acquired from the illicit gain of property from the abuse of money laundering and the financing of terrorist activities. This chapter suggests that Islamic law emphasises on the lawful ownership of wealth and prohibits a person from acquiring illicit wealth. This study will contribute towards the study on the deployment of maqāsid al-Sharīʿah, which is beneficial in safeguarding an individual action as well as the country’s commitment against abuse and misuse of wealth for financial crimes.

  • Cryptocurrencies and Anti-money Laundering Laws: The Need for an Integrated Approach

    Abstract This chapter attempts to clarify and describe the legal and regulatory framework for cryptocurrency with special focus on Malaysia and the threats that it poses from the anti-money laundering perspective. Currently, very few countries have legislations that regulate cryptocurrency. Nonetheless, the crazy surge in prices (to more than 20-folds at some point) has sent both legitimate investors and criminals flocking to cryptocurrencies. This chapter analyses and compares the official reports from various governments, writings of government officials, experts and scholars in journals and newspapers, interviews and draws conclusions on the legal framework of cryptocurrency, and money laundering challenges. The study notes that the decision of the US regulators in allowing Bitcoin futures to trade on major exchanges to be one of the reasons behind the sudden surge. The study also finds that the South Korean regulators’ approach in banning its financial institutions from dealing with virtual currency is a positive one. The chapter stresses that it is not adequate for regulators to warn the public to act with extreme caution and increase their understanding on the risks they take on if they choose to invest in cryptocurrencies. Instead, it is necessary to have comprehensive international and national laws and regulations for the control and management of cryptocurrencies. In addition, the anti-money laundering legal framework must be improved to cater to the new threats posed by cryptocurrency.

  • Fintech and Its Impact on Islamic Fund Management in Malaysia: A Legal Viewpoint

    Abstract The global Islamic financial landscape is changing with rapid advances in technology. The increasingly tech-savvy demography is presenting both opportunities and challenges to the industry. With the advances in e-finance and mobile technologies, financial technology (Fintech) innovations emerged by combining the e-finance, Internet, social networking services, social media, artificial intelligence (AI) and big data analytics. Fintech promises to reshape the Islamic financial landscape by improving processes’ efficiencies, cost-effectiveness, increased distribution, Sharīʿah compliance and financial inclusion. As far as the Islamic fund management industry is concerned, AI seems to be the keyword. Islamic fund managers have recently started to incorporate AI and big data analytics into their strategy in the process of making accurate decisions based on facts and figures, which eliminates any biases and personal intuition. This disruption in status quo is raising new issues, new concerns and new exciting opportunities. While disruption may carry negative connotations, the industry players have been embracing the innovation and potential revolution the technology could offer. Thus, the objective of this chapter is to discuss legal aspects of Fintech and its impact on the Islamic fund management industry in Malaysia. This chapter introduces a historical overview of Fintech and its evolution in the Islamic fund management industry. This chapter further provides an overview of the legal and regulatory aspects of Fintech with regards to the industry. Finally, legal issues and challenges are identified and discussed. Being a legal research, this chapter adopts a qualitative method by analysing the relevant literatures on the subject. This chapter is expected to provide an insight into the application of Fintech and its impact on the Islamic fund management industry in Malaysia.

  • Regulating Digital Currency: Taming the Unruly

    Abstract Regulation of digital currency is still at its infancy as authorities around the world grapple with its mechanics, and study its impact and the best method to regulate it. Significant increase in the use of digital cryptocurrency based on Blockchain technology post-Bitcoin phenomenon had challenged the conventional idea of central bank monopoly in currency issuance. This had also raised concern that digital currency being used as an instrumentality of crime given its anonymity feature that allows for the flow of funds without tracing and the fact that it is built on trustless system that provides security of transaction. This concern, plus other consideration including the prospect of issuing central bank digital currency, had driven some authorities around the world to adopt countermeasures either via an outright ban or a regulatory regime that suits the nature of digital currency, which is purely virtual and anonymous. However, in coming out with an appropriate legal regime, authorities faced multiple difficulties especially when the pace of legal development does not sync congruently with the rapid progress of technology. In addition, given the growing prominence of Islamic finance around the world, questions also arise pertaining to the legality of digital cryptocurrency from the Islamic perspective. Through a qualitative study of relevant literatures as well as legislations in different countries, this chapter discusses the various categories of digital currency, its position from the Islamic perspective, regulatory regimes of digital cryptocurrency in selected jurisdictions and challenges faced by authorities around the world in regulating this new medium of exchange.

  • Islamic Banks and Money Laundering in Malaysia: A Legal Compliance Perspective

    Abstract The Anti-Money Laundering and Counter Financing of Terrorism (AML/CFT) Thematic Review of Banking & Insurance sectors conducted by Bank Negara Malaysia (BNM) in 2013 indicated that oversight functions are still inadequate in the areas of compliance, internal audit, board of directors and senior management. The oversight functions refer to the AML/CFT compliance programme, which financial institutions, including Islamic banks, are obliged to execute as a part of mitigating activities against money laundering and terrorist financing. The main purpose of this chapter is to analyse whether there is any improvement in the oversight functions at the Islamic banks in Malaysia since the release of the thematic review report by BNM on 17 September 2014. This research is important as penalty for non-compliance under Section 22 of the Anti-Money Laundering, Anti-Terrorism Financing and Proceeds of Unlawful Activities Act 2001 (AMLATFPUAA) is severe. Section 22 of AMLATFPUAA entails personal responsibility on the compliance officer of an Islamic bank and not the reporting institution as a whole. Qualitative research method via interview is employed to gauge the extent of Islamic banks’ adherence to AML/CFT compliance programme. This chapter is significant as it provides Islamic banks and future researchers with the details of the compliance study as well as the current status of AML/CFT compliance programme within the Islamic banks in Malaysia.

  • Hisbah as a Consumer Protection Institution in Malaysia: A Special Reference to Islamic Consumer Credit Industry

    Abstract Hisbah is one of the distinguished institutions that had emerged since the early days of the Islamic empire. Based on its cardinal duty to enjoin good and prohibit evil, over time, its functions gradually expanded, and its responsibilities increasingly grew. In light of the contemporary trend in establishing institutional framework for consumer protection, entrusting an agency with multifarious tasks may not be the best and effective way in handling consumer protection issues. Thus, this chapter attempts to explore the new paradigm of hisbah as a consumer protection institution in Malaysia with a special reference to the Islamic consumer credit industry. While utilising the doctrinal legal research methodology, relevant sources of law have been examined and analysed. This research finds that the classical hisbah institution provides a good reference point in establishing regulatory agency and dispute management body. Nevertheless, some modifications are required to remain relevant especially in terms of specialisation of role and function. Likewise, it is viewed that adjustment of the hisbah institution is also necessary regarding the characteristic of the muhtasib (ombudsman).

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