Home Articles Required Role of the Jurists / Sharī‘ah Advisors in Islamic Banking

Required Role of the Jurists / Sharī‘ah Advisors in Islamic Banking

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Muhammad Arif : Chairman Centre of Advisory Services for Islamic Banking and Finance (CAIF), Former Head of FSCD SBP, Former Head of Research ArifHabib Investments and Member IFSB Task Force for development of Islamic Money Market, Former Member of Access to Justice Fund Supreme Court of Pakistan

According to the instructions of SBP, the burden whether a product passes Sharī‘ah compliance test, rests on the shoulders of IBIs’ Sharī‘ah Boards. Sharī‘ah scholars have been assigned the Divine responsibility of ensuring a Sharī‘ah compliant, trustworthy and robust system that could be helpful in enhancing financial and social inclusion and provide necessary support for sustainable growth and development of the economies and the societies. They need to perform this duty as a trust and without any conflict of interests while ensuring that each and every transaction conforms to the principles of Sharī‘ah, and that justice is done with all stakeholders particularly the general account holders. [Q: 4:58 and 33:39].

Measures for Regulatory Improvements include-

The prime factors behind the problems as indicated above are non-availability of any single basis for products’ approval and decision making, and SBP’s inability to properly govern the skills and role of RSBMs and Sharī‘ah Boards. Below, we recommend some steps to be taken instantly:

a)Basis for Sharī‘ah Decision Making and Products Approval: There has to be one basis for products approval and decision making. AAOIFI’s Sharī‘ah Standards may be made mandatory; Further, SBP may enforce an SOP and a “Code of Conduct – Ethics and Principles for approval of Structured Products”;

b)Products Approval Process: Products suggested by IBIs Sharī‘ah Departments may be analyzed thoroughly by the Sharī‘ah Research Unit of the IBD (SBP) to ensure that nothing is against AAOIFI’s Standards; and then submit to the SBP’s Sharī‘ah Boards for approval keeping in view implications of products for stakeholders and objectives of Islamic banking; IBIs may then be advised not to use any structured product unless approved expressly by the SBP’s Sharī‘ah Board .

c)Sukuk Market: Till the whole system is Islamized primary and secondary market for sovereign Sukuk should be opened for IBIs only, excluding conventional banks.  This step will also help in curbing the clean and collateralized lending by IBIs to conventional banks in contravention of the AAOIFI’s Sharī‘ah Standard No. 30 on tawarruq.

d)Sharī‘ah Advisory System in Banks: Having a Sharī‘ah Board in all IBIs may not be mandatory as it has caused unnecessary costs to the IBIs without any visible benefit. One Sharī‘ah Advisor could be sufficient serving full time to facilitate the banks in day-to-day business as per standardized products approved through process as in (b) above. The Sharī‘ah Advisors might be paid the honorarium, if any, for the meetings attended or work accomplished, and not any regular pay.

Some others steps need to be taken in short/ medium / long run:

a)Practically, the ability of the Sharī‘ah advisors to fulfill their mandate is constrained by the time given for the banks affairs, their understanding about finance and access to monitoring systems, complexity of the products and transactions, and effectiveness of their independence. State Bank may maintain a panel of ‘SBP Certified Islamic Finance Scholars’ for Islamic banks and finance institutions. Its training arm, NIBAF, may design and arrange an advance level rigorous training course on Islamic fiqh, economics, accounting, banking and finance for Sharī‘ah scholars having sufficient knowledge of Islamic law of contracts, banking, finance and accounting, followed by a comprehensive written Exam.  Only the scholars securing (70) % or more marks may be eligible to become Certified Sharī‘ah Advisors in Islamic banking system of the country.

  1. B) SBP may nominate, with approval by its Sharī‘ah Board, any of the Panel members for any IBIs for the period of three years, after which they may be deputed to any other IBIs. SBP may be deciding the monthly salaries, allowances, etc. to the IBIs’ RSBM, that SBP will be taking from each IBI keeping in view its number of branches, business, expertise of its Sharī‘ah scholar, size of internal Sharī‘ah control and Sharī‘ah research / review departments, and the level of Sharī‘ah compliance (lower).

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