Islamic Finance and Banking by Riyazi Farook

2011-12-28T13:25:00.003-01:00

Marketing Islamic Finance Products in Pakistan: Trends and Analysis

by Salman Ahmed Shaikh

There are 5 fully-fledged Islamic banks operating in Pakistan and 15 conventional banks with Islamic banking branches. The share of the industry in the banking system has risen to over 7 percent from just 0.5 percent in 2002, according to Reuters.

Citing the challenges for the industry, people usually opine that the industry needs to create awareness about itself, its products and the concepts underpinning their development.

One listed Islamic bank in Pakistan showed Rs 47 million on the expenditures side in 2010 which was more than the Rs 41 million in profits it reported for the same year. Of note is that it is the first time the bank had reported profits and, as odd as this ratio might appear, it nevertheless tells us that a good sum of money was spent on advertising. Another listed Pakistani Islamic bank had also spent Rs 43 million on publicity in 2010.

Creative advertising is also finding its way into these marketing campaigns as evidenced by the few examples of original marketing slogans used by some Islamic banks, which names will not be revealed.

Sample slogans

"Finally, a car that lets you fly. Finance your dream car."

"Live in your dream home."

"Drive your dream car."

"Shariat Mein Barkat. (It means blessing is only in Islamic law)"

Sadly, though these slogans have contributed their share in promoting consumerism in Pakistani society they failed to hail Islamic virtues of Shukr (thankfulness), Sabr (patience), Tawakkul (steadfastness), Infaaq (payment to charity), refraining from Israaf (extravagance), hubb-e-maal (love of wealth) and hubb-e-dunya (love of materialism).

The prevalent practice of marketing efforts includes billboard advertising, TV commercials, print media and additionally running paid content in the form of discussion programs on TV. But, in the name of creating awareness, serious discussions and arguments usually lie missing in the paid discussion programs run on TV.

The proponents of Islamic banking repeatedly try to give some logical answers to support the case of Islamic banking and argue that the end result of many activities could be similar, but their interpretation for Halal and Haram could still be different. These logical arguments are analyzed briefly.

A McDonalds burger in the West may taste the same as in the East, but one may be permissible i.e. Halal and one may be prohibited i.e. Haram if the animal from which the meat was prepared was not slaughtered in the prescribed Shari'ah manner. The forbidden burger is not prohibited on the basis of taste, but rather due to the manner of slaughtering. But regardless of the argument, the way the burger is advertised fails to remind the consumer of the fact that it is God Almighty who has given man permission to take the life of an animal for food consumption.

Similarly, pre-marital and post-marital sex may prompt similar physical and emotional responses, but in Islam, the former is prohibited while the latter is permissible. Here again, the reason for prohibiting pre-marital sex is not biological or utility related, but rather social i.e. Islam treasures the family system and wants to protect its sanctity at all cost, else, from a social point of view, humans would be no different than animals.

If one does not wish to invest money for profit purposes, but has some surplus funds, Islam has encouraged spending on charity over lending for interest and it is supported through many verses. "They ask thee how much they are to spend; Say: "What is beyond your needs." Thus doth Allah make clear to you His Signs: In order that ye may consider." (Al-Baqarah: 219).

"In their wealth, there is a known right for those who ask for it and those who have need for it." (Al-Muarij: 24-25).

Instead of those Islamic institutions who are working in conformity with Islamic rules and principles trying to create awareness about these virtues, emphasis has been on creating wealth. By not using the Islamic virtues mentioned above, Islamic banks have essentially failed to create brand affinity among the masses on the basis of what Islam promulgates as core to its followers beliefs. This is not to deny the efforts and achievements of Islamic banks, but rather meant to point out the shortcomings which need to be looked at and addressed right away.

BOX: Islamic Credit Cards: A Necessity or Luxury
By Salman Ahmed Shaikh

Islam never encourages one to become indebted unless it is absolutely necessary. Many a -hadith show the viewpoint of Islam on debt creation, especially when it is beyond ones capacity to repay, and points to what extent it should be avoided and used to meet ones necessary requirements.

Prophet Muhammad (pbuh) said:

-O Allah! I seek refuge with Thee from sin and debt. [Sahih Muslim]

The Prophet Muhammad (pbuh) said:

-After the grave sins which Allah has prohibited, the greatest sin is that a man dies while he has debt due from him and does not leave anything to pay it off, and meets Him with it.

The following supplication is related to the Prophet Muhammad (pbuh) for salvage from debt:

-O Allah! I seek refuge in You from all worry and grief. I seek refuge in You from incapacity and slackness. I seek refuge in You from cowardice and niggardliness, and I seek refuge in You from being overcome by debt and being subjected to men.

But, the currently practiced and widely used Islamic finance contracts are more based on debt financing than equity financing.

Some financial institutions in Islamic countries have developed Islamic Credit Cards for consumer financing. Problems arise due to the fact that credit cards could be used for impulsive buying or even the fulfillment of ones needs while not involving a tangible asset. Even when a transaction may involve a tangible asset, it is hard to fulfill all the necessary requirements of Murabaha in quick time.

One way to deal with this is to use the credit card not as a mode of financing but simply offer it as a convenience product that carries a transaction fee.

But, charges must be realistic, i.e not excessive. It must also be noted that a credit card might still be provided to the customer (else it will be same as a debit card), but no additional amount is to be charged over the credit amount. The charges so taken from the customer must be transaction-based and not time specific. In the current practice, they are time specific. Monthly charges have to be paid irrespective of whether one uses the card or not. This is not recommendable.

As a matter of fact, banks aim at making a profit out of the business of providing finance, even for consumption purposes. This is not recommendable looking at the various principles and philosophy of Islamic faith. Islamic Economics and its basis, principles and objectives will be increasingly compromised if such products are launched.

About the Author

Salman Ahmed Shaikh is a researcher in Islamic Economics. He is author of "Proposal for a New Economic Framework Based on Islamic Principles". He has also written 20 papers and more than four dozen articles on Islamic Economics. He can be contacted at salmanahmed_hyd@hotmail.com. Courtesy provided by Halal Tamweel.

2011-08-02T06:02:00.007-01:00

Brand Loyalty and Relationship Marketing in Islamic Banking System

By. MWO Maznah Wan Omar

Abstract

Islamic banks' ability to withstand the global downturn has fuelled an expansion of Islamic finance around the world. Islamic banks have learned that customer loyalty and brand loyalty must be earned. Brand loyalty and relationship marketing among banking consumers particularly in the islamic banking system in Malaysia has captured great interest among the Malaysian public as a whole (i.e. relationship between employees and customers). Relationship marketing is not more than just getting the customers but it is also how to maintain the existing customers as much as possible. There are important dimensions that supported the strength of relationship marketing that can lead to brand loyalty. In relation, brand loyalty refers to the favorable attitude towards a brand in addition to purchasing it repeatedly by the customer. The customer tends to be loyal since there is relationship marketing between them and the organization. This study will show the influence of relationship marketing through Bank Islam employees in Malaysia on Brand Loyalty. The data for this study will be acquired from 3 Bank Islam business premises in Pulau Pinang, Kedah, and Perlis which represent the northern states of Peninsular Malaysia. Various data-analytic tools will be used to analyze the data such as test of differences, reliability analysis, factor analysis, and multiple regression analysis. The study tries to determine how relationship marketing which is measured through three dimensions, that is Customer trust on Bank Islam staff, Bank Islam Staff commitment during the service delivery, and the communication skills among Bank Islam Staff can have an influence on Brand Loyalty among Bank Islam customers.

1. INTRODUCTION

In recent years there has been growing interest in relationship marketing (i.e. relationship between employees and customers) since there has been a change in terms of marketing philosophy which is marketing orientation. One of the most important areas in marketing orientation includes relationship marketing. Relationship marketing is not more than just getting the customers but it is also how to maintain the existing customers as much as possible.

There are important dimensions that supported the strength of relationship marketing that can lead to brand loyalty. In relation, Brand loyalty refers to the favorable attitude towards a brand in addition to purchasing it repeatedly by the customer. The customer tends to be loyal since there is relationship marketing between them and the organization. This study will show the influence of relationship marketing through Bank Islam employees in Malaysia on Brand Loyalty. The data for this study will be acquired from 3 Bank Islam business premises in Pulau Pinang, Kedah, and Perlis which represent the northern states of Peninsula Malaysia.

Various data-analytic tools will be used to analyze the data such as test of differences, reliability analysis, factor analysis, and multiple regression analysis. The study try to determine whether relationship marketing which is measured through three dimensions, that is Customer trust on Bank

Islam staffs, Bank Islam Staff commitment during the service delivery, and the communication skills among Bank Islam Staff do have an influence on Brand Loyalty among Bank Islam customers. Finally the study also attempts to determine if Customer Overall satisfaction would have a mediating effect on the relationship between relationship marketing and Brand Loyalty in the case of Bank Islam.

2. LITERATURE REVIEW

Brand management is an area of increasing importance to marketers today, particularly as organizations attempts to communicate the ever complex and intangible messages as part of brand management strategies (Davis, 2000; Goodchild & Callow, 2001). One of the many interesting questions facing today's brand managers concerns how to develop a better understanding of the appropriate relationship between constructs such as relationship marketing and brand loyalty, particularly in relation to the myriad of known antecedents to brand loyalty in the marketing literature (Taylor et al., 2004). In this study we assess the relative importance of many of the known antecedents to brand loyalty, including overall customer satisfaction.

By having a strong brand, companies not only could facilitate the differentiation of their offer from the competitors. With branding, financial companies are able to create customer confidence and loyalty in their performance, exert greater control over promotion and distribution of the brand, as well as commanding a premium price over the competitors; all while impacting the valuation of the business (Holverson & Revaz, 2006; Pass et al., 1995).

The added value that a brand name gives to a product is now commonly referred to as "brand equity"

(Aaker, 1991). Brand name adds value to each of these interested parties which include the investors, manufacturers, and the retailers. Brand equity and brand loyalty provides a strong platform for introducing new products and insulates the brand against competitive attacks. From the perspective of the trade, brand loyalty contributes to the overall image of the retail outlet. It builds store traffic, ensures consistent volume, and reduces risk in allocating shelf space (Cobb-Walgren et al., 1995). However, if the brand has no meaning to the consumer, automatically there wouldn't be of any value to the investors, the manufacturer, and the retailer unless there is value to consumer (Farquhar, 1989; Crimmins, 1992).

Over the past 15 years, a major shift has occurred in the ways that industrial companies deal with their customers and suppliers (Christopher et al., 1991; Ellram, 1995). This change has come about as companies have recognized that sustainable competitive advantage in the global economy increasingly requires companies to become trusted participants in various networks or sets of strategic alliances (Morgan & Hunt, 1994). Relationship marketing which is powered by the employees of an organization has emerged over the years as an exciting area of marketing that focuses on building long-term relationships among employees who is a proxy to their employer and customers that frequent to their business premises. As Gronroos (1993) observed: establishing a relationship, for example between an employee and a customer, can be divided into two parts: to attract the customer and to build the relationship with that customer so that the economic goals of the organization are achieved through that relationship.

THE RESEARCH MODEL

3.1 The Objectives of This Study

a. To determine whether Relationship marketing between Bank Islam staff and their customers will have any influence on Brand loyalty.
b. To determine whether Relationship marketing within Bank Islam will have any influence on customer's overall satisfaction.

c. To determine whether customer Overall satisfaction with Bank Islam employee will have any influence on Brand loyalty.

d. To determine whether customer Overall satisfaction on Bank Islam employee mediates the relationship between Relationship marketing and Brand loyalty.

3.2 Hypotheses

Hypothesis 1: There is positive relationship between relationship marketing and brand loyalty.

1a: There is positive relationship between trust and brand loyalty.
1b: There is positive relationship between commitment and brand loyalty.

1c: There is positive relationship between communication and brand loyalty.

Hypothesis 2: There is a positive relationship between relationship marketing and overall satisfaction.

H2a: There is a positive relationship between trust and overall satisfaction.
H2b: There is a positive relationship between commitment and overall satisfaction.
H2c: There is a positive relationship between communication and overall satisfaction.

Hypothesis 3: there is a positive relationship between overall satisfaction appeal and brand loyalty.

Hypothesis 4: Overall satisfaction mediates the relationship between relationship marketing and brand loyalty.

3.3 Research Questions

From the previous discussion, we infer specific research questions for this study, they are:

Does customers trust towards the Bank Islam employee during their interaction influences Bank Islam Brand Loyalty?

b) Does Bank Islam employee's commitment towards their customers during employee/customers interaction influence Bank Islam Brand Loyalty?

c) Does Bank Islam employee's communications skills delivered during employee/customers interaction influences Bank Islam Brand Loyalty?

d) Does customer's overall satisfaction towards Bank Islam employee influences Bank Islam Brand loyalty?

e) Does customer's overall satisfaction mediates the relationship between Bank Islam relationship marketing and Bank Islam Brand loyalty?

4. METHODOLOGY

The area of study for this research is limited to three Bank Islam business premises located in Pulau Pinang, Kedah, and Perlis. All the three states are located in the Northern States of Peninsular Malaysia.

A structured questionnaire will be distributed by four research assistance at the entrance/exit of the Bank Islam business premises that was selected for this study. Questionnaire will be collected right after respondents completed the survey. Thus a non-response as well as early and late response analysis is not required for this study. The unit of analysis for this study is individual customers who patronize the Bank Islam business premises.

4.1 Description of Methodology

To have a representative finding, the sampling technique used must be objective. This is an important effort adopted by most researchers in order to furnish a finding pertinent to the general. To choose the sample for this study, probability random sampling was used. A probability sample is necessary if the sample is to be representative of the population (Reeves, 1992). Therefore, a two-stage sampling technique is employed in this study.

The unit of analysis for this study is individual customers who patronize the Bank Islam business premises. Studying primary consumer groups permits a more valid and reliable clarification to the model research in this study. A total number of 500 samples will be collected from 3 different locations (Bank Islam business premises) in the state of Pulau Pinang, Kedah, and Perlis. In determining the sample size for this study, sample size selected was based on 3 considerations. One of the considerations is the criteria set according to Roscoe's rule of thumb (Sekaran, 2003) i.e. a sample that is larger than 30 and less than 500 are appropriate for most research, and the size must be several times larger (10 times or more) for multiple regression analysis to be conducted.

For this study, a survey method is employed. Surveys are a better source of primary data collection in marketing and social sciences in contrast to observation and experiments (Baker, 2001). According to Robson (2002), surveys are use in accord with a cross-sectional design, that is, the collection of information from any given sample of the population only once. The data are collected using a set of questionnaires or structured interviews with the objective of generalizing from a sample to a population to determine attitudes and opinions and to help understand and predict behavior (Baker, 2001; Mokhlis, 2006). Questionnaires will be distributed personally to customers who exit Bank Islam business premises and have had an interaction with any Bank Islam employees.

4.2 Population and Sample Size

Since the mailing list of Bank Islam customers/clients is not made available, a 2-stage systematic sampling technique will be employed.

4.3 Sampling Design

A two-stage sampling technique is employed in this study. During the 1^st stage = A random sampling technique is used to select the Bank Islam business premises. List of Bank Islam business premises will be retrieved from Bank Islam listing. 2^nd stage = systematic sampling. A skip interval of 2 will be utilized in the selection of Bank Islam clients as our respondent (Arithmetic progression will be utilized).

4.4 Sample

A sample of 480 will be collected (16 items (independent variable) X 10 = 160 samples X 3 locations = 480 samples). To accommodate for non-responses, an additional of 20 samples will be collected. Therefore a total of 500 samples will be collected altogether for this study. Sample selected was based on 3 considerations:-

a) The first consideration, Sample size selected was based on the criteria set according to Roscoe's Rule of Thumb (cited in Sekaran, 2003).

30< sample < 500. The size must be several times larger (10 times or more) for multiple regression analysis to be conducted.

Therefore, 16 items (questionnaire) X 10 = 160 samples x 3 independent hoteliers – 480 samples.

b) Second considerations, Cohen & Cohen (1977); Sawyer & Ball (1981), believes that very large sample sizes usually allow even small effects to be statistically significant. It is especially important with highly powered research designs to measure and report effect sizes in addition to statistical significance.

Sawyer and Ball (1981) estimated that a proportion of 13% of the explained variance to effect size values, as a medium effect size for regression analysis. According to Sawyer and Ball (1981), the medium effect of 13% is sufficient for testing an existing model.

f² = R² = 0.13 = 0.1494

1- R² 1 – 0.13

ŋ* = L+K+1

f²

= 13.62 + 3 + 1

0.1494

= 117 samples.

Therefore, 117 samples x 3 locations = 351 samples (to be collected)

Thus, 500 samples will be collected to accommodate for non-responses.

c) The third considerations, Issue's on response rate were covered. Response rate in Malaysia is between 15% - 30% base on the previous research/study/theses.

Therefore, the samples that will be collected are 500 samples, (The sample size was increased to 23%, to accommodate the non-response rate).

4.5 Questionnaire Design

Questionnaire consists of 3 Sections. Section A =Relationship marketing (Caceres & Paparoidamis, 2007). Section B = Overall customer satisfaction ( Bloemer & Ruyter, 1998). Section C = Brand loyalty (Aaker, 1996). An interval scale data (use for independent variable, mediating variable, and dependent variable) and a nominal scale data (demographic data) will be collected from the questionnaire distributed to the hotel guest. A Likert Scale of 1 to 5 will be used to frame answers in the questionnaire.

4.6 Translation Procedure

A back-to-back translation procedure will be utilized. The original instrument in English was literally translated into Bahasa Malaysia and back to English by a bi-lingual lecturer from Universiti Teknologi MARA Kampus Kedah. The instrument will be pre-tested for reliability and language accuracy.

5. CONCLUSION

To ensure success, it is recommended that Bank Islam follows the suggested model above to ensure that they significantly improved their overall brand management particularly building up Brand loyalty among their customers, without losing a large part of their uniqueness, independence and management control. The essence of Bank Islam management is to be able to relate relationship marketing through their employee, customer overall satisfaction, and Brand loyalty as part of their property management. To do so it requires the management of Bank Islam to spend time, effort and commitment, as well as to put in some financial resources, blended with management experience and knowledge of market plus courage to take risks. This venture is achievable and can be used as a strategy to speed up corporate growth and success of Bank Islam. The value of this study lies in the fact that it places the role of brand management firmly in Bank Islam. The employees of Bank Islam play a key role in enhancing good relationship with Bank Islam customers and exert considerable influence on the structure and culture of a company.

2010-10-19T04:35:00.009-01:00

Sukuk and Islamic Investment
By Rose Anderson

Islamic finance govern by Shari’ah law , as per Shari’ah law interest is strictly restricted in Islam.Free debt help is allowable without taking any interest, or these can be treat as to help anyone, without taking any interest from the lender. As interest is against the Islamic law bond market not develop in the Islamic world. Most of the Petroleum exporting countries are investing there surplus amount in the US free debt help bonds and they not taken interest on investment. Sukuk is invested to protect the religious value and also to increase the Muslim investment market.Malaysia is the largest issuer of the sukuk bonds ,sukuk is not only famous in islamic market but also some European and American countries issued sukuk bonds to get the islamic investment of rich middle east countries.Sukuk is also consider as a portfolio investment to diversify the investment.

A major challenges facing Islamic financial products like sukuk bonds are the lack of liquidity.According to S&P, there are more sukuk listed in Dubai than any other else, but the secondary market is virtually non-existent. Further, the bulk of sukuk are over-the-counter instruments,with listed sukuk accounting of only 20-255 of outstanding sukuk is issued worldwide; that is, $10-15 bn so far, says the rating agency. Zeti contends that creation of persistent supply of Islamic papers and instruments that would upgrade the secondary trading of instruments and greater depth of the market is the hour. According to her, another factor that could help futher expand the market for Islamic finance products would be to bring in greater diversity in the market for Islamic financial institutions and portfolio manager to manage their funds effectively. Pricing issues also pose significants challenges to the unhindered growth of the market. There is the need for developing a relevant benchmark for efficient and credible pricing. For example , if sukuk is issued based on the Ijarah principle, and if it uses the property as its underlying assets then actual rate of rental may be explored to be used to determine the rate of return on the instrument. However, it may then fluctuate depending upon the demands and supply for that property. Shari’ah experts, who have a full understanding of the mechanics of sukuk, should play an important role in ensuring its proper pricing as well as governance, she suggests.

Taking Islamic finance products global is another challenges as it requires harmonization of standards and practices between those of regional Islamic finance and international standards. Zeti suggests that full support has to be accorded to the international standard setting organizations such as Islamic Financial Service Board (IFSB) and to the Accounting and Auditing Organization for Islamic Financial Institution (AAOIFI) to formulate appropriate standards that would strengthen the Islamic Financial system.The Malaysia based IFSB has already formulated the prudential treatment for sukuk investment by the Islamic Financial Institution s as specified in the Capital adequacy standards and has also undertaken a set of initiatives to strengthen the framework and practices in the Islamic money market.

Also, lack of rating is another major issue. Given the complex legal structure, it adds to the cost and complexity of rating. Further rated instruments are almost non-existent in the Middle East.
However, global rating agencies such as S&P, however, feel that there is a way out. “the provisions of Islamic debt instruments may add level of complexity to rating analysis long stading methodologies and rating scales are sufficiently broad so far to incorporate the varied features of Islamic debt financing,”It said in recent report. Islamic finance largely centers on assets-backed approaches and sometimes involves a degree of risk-sharing more commonly born by equity investors.In practice,however,as illustrate d in the sukuk that Standard & Poor’s has rated, binding guarantees and other contractual obligations can place transactions firmly in the debt category.

R. Anderson is a financial writer .She is the Community Member of "Debt Community" and has been contributing her suggestions to the Community . She has also made notable contributions through various articles written on different subjects related to debt industry.

2010-10-17T08:31:00.000-01:00

Coming of age
Past challenges, future opportunities
By Dr. John Lee and Anita Menon (KPMG Malaysia)

Last year may go down in history as the watershed year for the financial services industry. However, as Dr. John Lee and Anita Menon explain, while Islamic finance was not entirely unscathed by the vagaries of the economy and the contagion effect of the conventional finance sector, the industry still recorded compounded annual growth rates of 28 percent from 2006 to 2009. Islamic banks also recorded an increase in assets by 28.6 percent in 2009 to US$822 billion.¹

This in itself is interesting, as a couple of years ago at the height of the previous growth cycle for Islamic finance, many felt that the true test of the resilience of the system would be when there was a shock to the system, and when the liquidity in the Middle East dried up. However, skeptics would also claim that this was due to Islamic institutions general investment prohibitions which meant that they were less exposed to subprime assets.

2009 also saw the entrance of a number of new players which indicate that interest in this burgeoning sector is as yet, unabated. As at end 2009, there were 1,124 Islamic financial institutions globally.² While issuance of sukuk³dropped in 2009 on the back of tightening liquidity and concern on possible defaults, the demand for quality sukuks continued to be there and issuance increased by 40 percent for the first 10 months of the year, as compared to the corresponding period in 2008.⁴ Saudi Arabia led the issuance followed closely by Malaysia; with one of the largest issuances by Malaysia’s national oil and gas company Petronas totaling US$1.5 billion.

Figure 1 - Total Sukuk Issuance by Country in 2009

Source: S&P’s Europe, Middle East, and Africa Markets Outlook 2010, January 2010.

Outlook for the rest of this year and into 2011

The outlook for the remainder of 2010 remains positive with some analysts saying⁵ that Saudi Arabia is expected to continue to lead issuance, although investors are expected to be somewhat spooked by the recent Dubai World crisis, sukuk defaults and the problems seen to be encountered by some of the institutions in the Middle-East. Dar-Al Arkan, Saudi Arabia’s largest property developer by market value, successfully issued a sukuk in February this year raising US$450 million and analysts believe that the number of issuances for the rest of 2010 is likely to grow to pre-crisis levels.

KPMG in Malaysia’s analysis indicates that the Islamic finance market is steadily growing both deeper and wider, with the emergence of new Islamic finance markets such as the Maldives, Korea, Kenya, Nigeria and also stronger interest from EU countries like France and Italy. Korea for instance, is currently working on amendments to its legislation that may see the first Korean sukuk being issued as early as 2010 or 2011. In Malaysia, the interest continues to grow and, among the recent liberalization measures is the issuance of two new Islamic banking licenses to foreign players; with a paid-up capital of at least US$1 billion, along with two family Takaful licenses towards the middle of this year. Malaysia continues to be a leading market outside the Middle East with assets of almost 11 percent of the global market and with Islamic assets making up almost 19 percent of the banking and finance market in Malaysia. However, the UK is emerging as a key market holding close to 2.5 percent of global assets.⁶

Within the Asia-Pacific region, relative newcomers such as Singapore and Hong Kong have expressed their desire to also become centers, while the most populous Muslim nation – seen by many as the next big growth zone – Indonesia has still a long way to go if estimates of asset size are anything to go by. Bank Indonesia, the central bank of Indonesia, has indicated that shariah assets are projected at US$7.6 billion as at end 2009, which places the nation’s Islamic finance assets at 2-3 percent of the total banking assets.⁷ This is attributed to the nascent infrastructure and regulatory system for Islamic finance. While there is a new law which was set to be effective in April 2010 that would remove the double-taxation on some Islamic banking transactions, there are still issues around this area that hold back the otherwise huge untapped potential in this country.

Figure 2 - Total Banking Assets & Islamic Banks by Country in 2009

Source: The Banker, The Pew Forum, Bank Negara Malaysia, FSA, Central Bank of Bahrain, November 2009.

The global Muslim population is continuing to grow faster than the non-Muslim market; recent estimates place the Muslim population at 1.57 billion, 23 percent of the global population.⁸ There is also a large Muslim population in the Asia-Pacific region - China for instance has more Muslims than Syria; while Russia has more Muslims than Jordan and Libya combined. This translates to immense opportunities for shariah compliant finance in as yet untested markets. The potential for Islamic finance continues to be enormous. The only impediment to its growth may be that the conventional regulatory structure is currently unable to support the introduction of Islamic products.

Through the adoption of a progressive face as opposed to an overtly religious tone, in countries such as Malaysia, the Islamic finance industry has continued to make inroads in the non-Muslim market. This may also be the approach adopted in countries such as India and certain African countries with large Muslim populations, but, where the projection of an Islamic face would be anathema to the political regime.

Islamic finance is also gaining acceptance where it is seen as an ethical alternative to the conventional system, bridging the gap between socialism and capitalism. According to the Vatican’s official newspaper Osservatore Romano in its March 2009 issue, “The ethical principles on which Islamic finance is based may bring banks closer to their clients and to the true spirit which should mark every financial service.” Ethical investors also are drawn to the principles that underlie Islamic financial transactions. Therefore growth is expected to come from this segment of consumers as well who are not necessarily attracted by its faith-based appeal, but more from its socially responsible outlook.

The future of Islamic finance

The ongoing debate on whether products are shariah compliant or shariah based and the lack of standardization, continues to be an issue. Additionally, other major hurdles that remain or have become more apparent with the recent financial meltdown include:

the need for robust risk management practices that would be able to drive product innovation and development;
the need for a legal and regulatory framework for dispute resolution, especially on cross-border transactions;
the ongoing requirement for trained practitioners in this field that have a strong understanding of shariah requirements, but are also in tune with market and consumer demands.

Notwithstanding that, many Islamic institutions are expected to undergo a transformation in their approach and strategy, and more importantly in their business models as well. This will enable them to encompass more of the ideals of shariah principles and to move away from the predominance of debt-based structures as in the past. When Islamic finance was first introduced into the market, the approach was to adopt products that were familiar to the generation of consumers and clients brought up on conventional financial products. Therefore, Islamic financial products were shariah compliant mirrors of their conventional equivalents. Furthermore, the initial target market was retail customers who are generally risk-averse and therefore, fixed rate products were more appealing to this segment of the market.

Increasingly however, a radical shift from the current norms will be required and this would fuel the anticipated growth in Islamic finance. The pursuit of social objectives would gain emphasis alongside the pursuit of commercial objectives; since Islamic finance is meant to be the antithesis of the previous conventional financing norms – where excessive risk-taking led to the ultimate downfall of many players. The financial crisis has heightened the interest in Islamic finance and it’s future; the concepts of risk-sharing should be ingrained further through the development of more profit and risk sharing mudaraba and musyaraka products. This would require a shift in banking business models as well. Increased product sophistication and market awareness-building would also need to go hand-in-hand with the advancement of the financial and legal infrastructure.

Over the next 18 months Islamic finance institutions are expected to come of age

2010-05-06T05:36:00.005-01:00

ISLAMIC FINANCE 2010
by IFSL RESEARCH

OVERVIEW

The global market for Islamic financial services, as measured by shariacompliant assets, is estimated by IFSL to have reached $951bn at end-2008,25% up from $758bn in 2007 and three quarters up on the 2006 total(Chart 1). However, 2009 may have seen a pause following strong growth ofprevious years. Commercial banks account for the bulk of the assets withinvestment banks, sukuk issues, funds and takaful making up the balance.

Key centres are concentrated in Malaysia and the Middle East including Iran,SaudiArabia, Malaysia, Kuwait, UAE and Bahrain (Chart 2). Islamic financeis also developing in Asian countries such as Bangladesh, Pakistan andIndonesia, as well as North African countries such as Sudan and Egypt. TheUK, in 8th place, is the leadingWestern country and Europe’s premier centrewith $19bn of reported assets, largely based on HSBC Amanah. Assets inother Western countries are currently small but a number of countries,particularly France, are looking to develop a presence in Islamic finance.

While the Islamic finance industry initially has been less affected by thefinancial crisis and global economic downturn, there are ongoing challenges,particularly for the sukuk market and for some Islamic banks. The sukukmarket fell back in 2008, but despite recovery in issuance to $20bn during2009, is being tested by its ability to deal with several defaults. A $10bn loanby Abu Dhabi staved off the threat of a potential default by Dubai World onits repayment on the Nakheel $4bn sukuk in December 2009. Quality issuersof sukuk continue to attract demand from investors.

Islamic banks have not been immune to the effects of the financial crisis anddownturn: some have suffered a higher rate of non-performing loans thanconventional banks, mainly due to their exposure to falling real estatemarkets. Revenue and profitability has suffered in both 2008 and 2009 andliquidity is a significant restraint for some banks.

Islamic banks have not been immune to the effects of the financial crisis anddownturn: some have suffered a higher rate of non-performing loans thanconventional banks, mainly due to their exposure to falling real estatemarkets. Revenue and profitability has suffered in both 2008 and 2009 andliquidity is a significant restraint for some banks.

- 22 banks including five that are fully sharia compliant, more than in anyotherWestern country. Two Islamic banks were granted licences in 2008.
- 20 Sukuk issues raising $11bn listed on London Stock Exchange,exceeded only by Dubai Nasdaq.
- Seven sharia compliant exchange-traded funds (ETFs).
- 20 law firms supplying services in Islamic finance.-
- Advisory services provided by Big Four professional service firms.
-Institutions offering educational and training products in Islamic finance.
- Off-exchange trading in commodity-based agreements linked to LMEcontracts.

GLOBALMARKET FOR ISLAMIC FINANCE

As mentioned in the overview, IFSL estimates that the global market forIslamic financial services, as measured by sharia compliant assets, isestimated to have reached $951bn at end-2008, 25% up from $758bn in 2007(Chart 1). Assets have grown from about $150bn in the mid-1990s. Islamiccommercial banks accounted for 74% of the assets, investment banks 10%,sukuk issues also 10%, funds 5% and takaful 1%.

Assets that can be allocated to individual countries from The Banker’ssurvey of 500 organisations reveal that the leading countries for shariacompliant assets are Iran with $293bn, Saudi Arabia $128bn and Malaysia$87bn (Table 1). These are followed by other Gulf states including UAE,Kuwait, Bahrain and Qatar. The UK, in 8th place, is the leading Westerncountry with $19bn of reported assets, largely based on HSBC Amanah.Countries with most of the 302 firms reporting to The Banker’s surveyinclude Malaysia with 37, Bahrain 34 and Kuwait 30. Iran, Sudan, SaudiArabia and Indonesia each have between 20 and 23 firms supplying Islamicfinance (Table 1).

Broadening geographical customer base for Islamic services The market iscurrently most developed in Malaysia, Iran and the majority of countries thatform the Gulf Co-operation Council (GCC). However, Islamic finance ismoving beyond its historic boundaries in these countries into new territories.Markets where Islamic finance is developing include:

- Other countries in the Middle East and North Africa such as Turkey,Sudan, Egypt, Jordan and Syria.
- Other Asian countries such as Indonesia, which has the largestindigenous Muslim population in the world, as well as Hong Kong,Singapore, Bangladesh, Pakistan and China.
- Western countries in Europe and North America. Countries such as theUS, France, Germany and the UK each have indigenous Muslimpopulations of between one and five million, although Russia has muchthe largest in Europe with 30m. The customer base in Western countriesis not necessarily restricted to Moslems: other customers may beattracted by the ethical and environmental basis of Islamic finance.

Following the lead set by the UK, otherWestern countries, such as Japan andFrance, are looking to make the appropriate regulatory and legal reforms thatwould facilitate provision of Islamic financial products. London is seeking toconsolidate its position as the gateway to Islamic finance in Western Europe.Providers in London are likely to focus on services that complement thoseavailable in other centres. Government strategy for the development ofIslamic finance in the UK is set out on page 7.

Sharia compliant financial services

Banking and sukuk - the issue of Islamic notes - represent the forms ofIslamic finance that are most well established, although takaful (insurance)and funds are also evolving. Products that may be the subject of innovationinclude private equity and private wealth management.

Banking Islamic banks have been perceived favourably since the onset of thefinancial crisis in 2008 as they have been less exposed to losses frominvestment in toxic assets. However, they have not been immune from theeffects of the crisis and the subsequent economic downturn. Some Islamicbanks have suffered a higher rate of non-performing loans than conventionalbanks, mainly due to their exposure to falling real estate markets. Revenueand profitability has suffered in both 2008 and 2009 and liquidity is asignificant restraint for some banks.

In its World Islamic Banking Competitiveness Report 2009/10 McKinsey &Company recommended that many Islamic banks need to take action in anumber of core areas in order to:

- Enhance and diversify their business mix, by tapping into new businesslines such as personal finance asset management and various areas ofinvestment banking.
- Upgrade risk management in order to address credit and liquidityconstraints. This would also include avoiding excessive exposure to realestate.
- Reduce operational costs and improve service quality to maintaincompetitiveness.
- Explore growth opportunities in the international markets, especiallywhere any excess capital can be better deployed in underdevelopedmarkets.

Islamic banks compete not only with each other but also with all other banksoffering conventional finance, particularly those that have establishedIslamic ‘windows’. In the Banker’s survey, balance sheet assets of shariacompliant banks rose 29% from $622bn in 2007 to $800bn in 2008, of which$701bn were in commercial banks and $99bn in investment banks.

In the UK, five fully sharia compliant banks have been established putting itin the lead in Western Europe (Table 2). The Islamic Bank of Britain (IBB)became the first stand-alone retail Islamic bank in the country in 2004 andwas followed between 2006 and 2008 by The European Islamic InvestmentBank (EIIB), The Bank of London and The Middle East (BLME), EuropeanFinance House and Gatehouse Bank. IBB is the only bank with a high streetpresence having eight branches and around 50,000 customers. EIIB providesinvestment banking services including trade finance, private equity and assetmanagement. BLME offers Sharia compliant investment, corporate andprivate banking to businesses and high net worth individuals globally.European Finance House offers a range of investment products and servicesto clients that include companies and wealthy investors. Gatehouse Bank is awholesale investment bank operating in capital markets,institutional wealth management, Treasury business andadvisory services.

In addition to the five sharia compliant banks, there are anestimated 17 conventional banks that have set up windows inthe UK to provide Islamic financial services (Table 2). HSBCAmanah is the only conventional bank with an Islamicwindow to report to the Banker’s survey: its assets of $16.5bnaccount for 85% of the UK’s identified assets, with a further6% from BLME and 4% from the HSBC parent bank.

The 22 Islamic banks in the UK substantially exceeds that in anyother western country or offshore centre (Table 4). The UK market forIslamic mortgages has grown to about £500m, some 0.3% of the total UKmortgage market.

Sukuk are issues of Islamic notes that represent an alternative toconventional bonds. Issuance of sukuk increased rapidly from $1bn a yearin 2002 to $34bn in 2007 (Chart 3). In common with the broad-basedslowdown in global capital market activity, sukuk issuance fell awayduring 2008 to $15bn, as a result of a decline in asset valuation, a lack ofliquidity and a lack of market confidence. The ruling from the Accountingand Auditing Organisation for Islamic Financial Institutions (AAOFI) thatquestioned the sharia compliance of some sukuk structures also acted as abreak on issuance in 2008.

Sukuk issuance rose from the low point of Q4 2008 to reach $6bn in eachof Q3 & Q4 2009, resulting in an annual total of $20bn, up by 30% on 2008.Most issuers in 2009 have been government or quasi governmentorganisations. Uncertainty has arisen from the financing problems at DubaiWorld, resolved for the time being by a $10bn loan fromAbu Dhabi. This hasbrought concerns about settlement of sukuk defaults into focus with keyissues set out in the side panel. In the meantime, quality issuers of sukuk arecontinuing to attract demand from both Islamic and non-traditional investors.

Malaysia is the main country in the global market, but Indonesia andSingapore have come into the market more strongly in 2009. According toIslamic Financial Information Service (IFIS), the main factors hinderingrevival of the sukuk market in the GCC are troubled Kuwaiti investmentcompanies, the real estate market in the UAE and the availability of credit inSaudi Arabia.. There was one sukuk listing in Nasdaq Dubai and two on theLondon Stock Exchange in 2009. This has brought the Dubai total atend-2009 to 21 listings totalling $18bn and to 20 listings in London worth$11bn.

Long term prospects for sukuk are positive, with three factors having a rolein fostering growth in demand when market conditions improve:

- There is a commitment to a substantial programme of infrastructureinvestment in the GCC totalling up to $1,000bn over the next ten years,some of which will be financed through Sukuk.
- Recent years have shown that there is an appetite and demand forinvestment in Sukuk that goes well beyond Islamic investors amongstthose investors that wish to gain exposure to diverse but high qualityassets.
- Governments and regulators in a variety of countries have recognised theimportant role that Sukuk can play in capital markets and have beengiving priority to developing their countries as Sukuk centres. Inaddition to Dubai and the UK, these include Bahrain, Hong Kong,Malaysia, Japan, Pakistan, Singapore and South Korea.

Islamic funds The market for Islamic funds has been expanding steadily.Eurekahedge estimates that the total number of sharia compliant fundsreached 680 funds by end-2008 having risen more than threefold from around200 in 2003. Ernst & Young estimates that the total value of these funds has grown from $20bn in 2003 to $44bn in 2008 (Chart 4). Equity funds accountfor the largest segment: 40% of funds, with fixed income 16% and real estate& private equity 13% (Chart 5). Cash, commodities and other funds make upthe balance. Over half of funds, 58%, are invested in a portfolio covering theMiddle East and Africa. A further 20% are in a global portfolio, 15% in Asia,6% in America and the residual 1% elsewhere.

The bulk of Islamic funds are small scale with two thirds being less than$100m and many of these having attracted only $10m to $15m. The domicileof funds is heavily concentrated with nearly two thirds of the total number offunds being in five jurisdictions: Malaysia 23%. Saudi Arabia 19%, Kuwait9%, Luxembourg 7% and Bahrain 6%. Cayman, Ireland and Indonesia eachaccount for a further 3-4% each, but the remaining 25% is divided between afurther 23 countries, including 1% in the UK.

Eurekahedge estimates that the average return on Islamic equity funds was22% in 2009, recovering from an average drop of 28% in 2008. This wasclose to the return on the global equity index, up 25% in 2009 following a fallof 37% in 2008. The largest Islamic equity funds, according to Failaka, arethe US-based Amana Funds, which it estimates account for 95% of Islamicfunds in the US totalling $2.3bn in 2009.

There has been a substantial decline globally in the number of new fundlaunches since the 2007 peak. In the UK new offerings in 2009 haveincluded:

- BLME launching a sharia compliant money market fund, the first of itstype to be launched in Europe.- Qatar Islamic Bank
- European Finance House launching its GlobalSukuk Plus Fund.G
- atehouse Bank and DDCAP announced the launch of a fund in early2010 to invest capital in structured trade finance transactions. DDCAP isa wholesale Islamic market intermediary company.

This followed a more active year in 2008 when four exchange traded funds(ETFs) were listed on the London Stock Exchange. Other offerings in 2008included a fund of equity funds, the first of its type globally by SEI; the firstsharia compliant retail capital-protected equity fund in the UK by Alburaq;and the launch by FTSE Group of the FTSE Bursa Malaysia Hijrah ShariaIndex, in association with Bursa Malaysia.

Takaful, similar to mutual insurance, is a risk sharing entity that allows forthe transparent sharing of risk by pooling individual contributions for thebenefit of all subscribers. The global market remains at an early stage ofdevelopment and is estimated at $8.3bn in 2008, up from $6.6bn in 2007(Chart 6). Iran, where takaful is the compulsory form of insurance, is thelargest market, with assets totalling $2.6bn (Table 1). It is followed byMalaysia, with premiums of $2.1bn, UAE $1.0bn and Saudi Arabia $0.8bn.Together, these four countries account for over three quarters of the globalmarket. Smaller markets for takaful with annual premiums of over $100mhave developed in Kuwait, Bahrain, Qatar, Sudan and Indonesia. Penetrationof takaful is nevertheless low in these and other countries with Islamicmajorities. Takaful represents a strong growth opportunity, particularly withregard to life insurance, as sharia compliant products are developed.

The takaful market in the UK remains at an early stage of development.Principle Insurance, authorised by the FSA in 2008, was the first shariacompliant independent takaful company in the UK, but it stopped taking newbusiness in 2009. The remaining takaful available in the UK is restricted toHSBC Amanah’s home insurance offering. Prudential was given approval in2006 to launch a takaful business in Malaysia in partnership with BankNegara Malaysia.

Other financial products The range of products generated by Islamic financehas broadened steadily. In the UK in 2007 Merrill Lynch structured the firstsharia compliant credit default swap for a UK power company involvingGCC investors. In 2008, Barclays Capital and Sharia Capital Inc. of the USlaunched the first Islamic fund of hedge funds. Sharia compliant publicprivate partnerships (PPP) are also under consideration.

The UK has a successful record as a trading centre for Islamic products ascommodity-based LME contracts are traded off exchange. This has been akey mechanism for Islamic financial institutions to manage their assets andliabilities. In 2008 ETF Securities launched a sharia compliant precious metalexchange trade commodity platform, based on platinum, palladiumsilver, gold and a basket of other metals.

Law firms The UK is a major global provider of the specialist legalexpertise required for Islamic finance, with 20 major law firms providinglegal services in Islamic finance (Table 5).

Professional service firms The Big Four professional services firms -PricewaterhouseCoopers, KPMG, Ernst & Young and Deloitte - have eachestablished an Islamic finance team in London providing specialist servicesincluding advice on tax, listings, transactions, regulatory compliance,management, operations and IT systems.

Education and training There is a growing demand for skills as Islamicfinance expands and UK institutions are at the forefront of providingqualifications for the global industry.

Courses in Islamic finance are offered by the Chartered Institute forSecurities and Investment (CISI), Chartered Institute of ManagementAccountants, Association of International Accountants, Cass BusinessSchool and the Institute of Islamic Banking and Insurance. These courseshave been key to the development of Islamic finance qualifications in theUK. One new development in January 2010 has been the launch by AstonBusiness School of an Islamic Finance and Business Centre.

In a separate initiative, the Islamic Finance Council UK has developed apioneering ‘Scholar Professional Development Programme’ in conjunctionwith the CISI. The objective of the course is to teach conventional finance toShariah scholars worldwide. Partners for this programme include the CentralBank of Bahrain and the International Shariah ResearchAcademy for IslamicFinance (ISRA) that is backed by Malaysia’s Central Bank.

Beyond Islamic finance, the UK education offering that majors in Islamspans the full range of qualifications starting from 16 year-old school levelthrough vocational and career-based qualifications as well as undergraduateand postgraduate degrees.
GOVERNMENT STRATEGY FOR DEVELOPMENT OF ISLAMIC FINANCE IN THE UK

London has been providing Islamic financial services for 30 years, althoughit is only in recent years that this service has begun to receive greater profile.An important feature of the development of London and the UK as the keyWestern centre for Islamic finance has been supportive government policiesintended to broaden the market for Islamic products for both shariacompliant institutions and firms with ‘Islamic windows’ (see side panel).

A key aspect of supportive government policy has been the establishmentsince 2003 of an enabling fiscal and regulatory framework in the UK forIslamic finance. There have been a number of initiatives which are intendedto form part of a continuing process:

The removal in 2003 of double tax on Islamic mortgages and theextension of tax relief on Islamic mortgages to companies, as well asindividuals.- Reform of arrangements for issues of bonds so that returns and incomepayments can be treated ‘as if’ interest. This makes London a moreattractive location for issuing and trading Sukuk.- Initiatives by the Financial Service Authority to ensure that regulatorytreatment of Islamic finance is consistent with its statutory objectivesand principles.

Following a review into the case for issuing sharia compliant governmentbonds, the UK Government announced in November 2008 that this would notoffer value for money at the present time. The situation has since been keptunder review by the Government. Investors would welcome a UKGovernment sukuk as it would provide more liquidity in the secondarymarket and act as a benchmark for UK companies that might considerissuing sukuk.

During 2009 the UK Government has been following through on otherinitiatives designed to support the UK as a centre for global finance and toensure conventional and alternative finance are treated on the same basis.Specifically, it has been undertaking a consultation on the legislativeframework for those alternative finance investment bonds (AFIBs) or sukukthat are structured to have similar economic characteristics to conventionaldebt instruments. Following this consultation, the Government announced on21 January 2010 that it intends to introduce measures to provide ‘clarity onthe regulatory treatment of corporate sukuk, reducing the legal costs for thesetypes of investments and removing unnecessary obstacles to their issuance’.

BARRIERS TO DEVELOPMENT OF ISLAMIC FINANCE

The global development of Islamic finance requires that further progress ismade in addressing a number of barriers. These may be broadly groupedwithin the following headings including: taxation and regulation;standardisation; awareness; and skills. More details on these barriers aredetailed in the The December 2008 UK Government paper on ‘Thedevelopment of Islamic finance in the UK: the Government’s perspective’.

2010-02-16T14:43:00.003-01:00

DERIVATIVES AND ISLAMIC FINANCE

Muhammad Ayub
(The writer is Senior Joint Director, Islamic Banking Department, State Bank of Pakistan Karachi.)

The conventional options, swaps and futures stem from debts and involve sale and purchase of debts/liabilities. As a group, products such as interest-rate swaps, stock options and futures, currency futures etc are called derivatives i.e. instruments derived from the expected future performance of the respective underlying assets. These are very complex and risky contracts having present market value of trillions of dollars over the world. According to an article published in the Economist, some $ 128 trillion of over the counter derivatives were outstanding in June 2002, a 28% increase over a year earlier. It has been observed, however, that global financial market is becoming increasingly fragile as more and more derivatives and ‘hedging’ instruments emerge.

Just to introduce the terms to common readers, an option to buy a commodity is known as ‘call option’ while the option to sell a commodity is known as a ‘put option’. An option has a nominal size, this being the amount of underlying asset that the option holder may buy or sell at the strike price, the price at which the holder may buy or sell the underlying asset upon exercise of the option. If the price moves favorably, the option is exercised and the commodity is bought/sold at the agreed price. If the price moves unfavorably, the buyer of the option simply abandons it. Thus an option contract confers the right but not the obligation to enter into an underlying contract of exchange at or before a specified future date (the expiry date). The buyer of that option pays a price (the premium) to the seller (the writer) of the option.

We can explain the options trading with help of an example. A call option purchase at a price of say Rs 5 on bond or stock ‘A’ provides a right to Mr. M to purchase the stock at price of Rs 50 three months from now. If as per his expectations the price of ‘A’ increases to Rs 60 on the maturity date, then the buyer of the call has a net gain of Rs 5 (on an investment of Rs 5). This is what the seller or the writer of the call would lose. But if the price of the stock falls below Rs 50 on the maturity date, say to Rs 40, the buyer would allow the option to expire without exercising it since he can buy from the market at a lower price. His loss would amount to Rs 5 or hundred percent with the call. This Rs 5 would be what the seller of the call would gain on zero investment. In the game, the buyer and seller have diametrically opposite expectations. The possibility of risk and returns are magnified, the gains of the buyer being equal to the losses of the seller and vice versa.

The institutions dealing in derivates and hedge funds claim that diversity of hedging products protect their clients against market volatility and provide a larger spectrum of risk management to the benefit of the society. But, actually volatility is caused by their activities when they trade in derivatives as a part of rip-off factor and the clients are sold nothing for something – protection against a danger that never needed to exist in the first place. They may produce huge profits for financial institutions at the cost of others. But these profits are not necessarily indicative of productive efforts. Mr. Warren Buffet, Chairman Berkshire Hathaway says: Derivatives are financial weapons of mass destruction mainly due to opaque pricing and accounting policies in swaps, options and other complex products whose prices are not listed on exchanges; Credit derivatives and total return swaps that are agreements to guarantee counterparty against default or bankruptcy merit special concern.”

The macro-economic arguments for their existence are also not convincing – they are for minimizing risks which do not need to exist as described earlier. The global foreign exchange market as at present is more or less an unproductive pursuit in that it exists because of an unnecessary monetary expansion. It would be better to structure the financial system such that it does not suffer from continuing volatility. What we are seeing in the Western world is the emergence of financial products that are a symptom of a system that has gone wrong. For a more efficient economy, we must promote systems in which people work in productive pursuits rather than unproductive ones. Change the system to relate it with real sector activities
and all those clever dealers who earn huge profits out of thin air could become doctors, industrialists, business people and teachers instead! As such, Islamic financiers who look at the products of this system as a paradigm seem to be at mistake.

Study of the behaviour of the Derivatives market reveals that it has the potential to cause a serious breakdown in the financial system. The degrees of leverage that are afforded by option contracts can be so high that large unpredictable market moves in underlying prices may one day lead to the insolvency of a major financial institution. Liabilities cannot be perfectly hedged even if that is the intention, and some traders deliberately do not hedge their option portfolios because such action would limit the potential for high returns. The case of Long Term Capital Management in the United States, rescued by a Federal Reserve bail out in 1998, demonstrates the degree of risk that can be incurred. The question is whether the central bank or other authorities would be able to move quickly enough, or in large enough measure, to prevent failings.

For example, Collateralized Debt Obligations (CDOs) are sophisticated type of derivatives and clever way of exploiting anomalies in credit ratings. A number of loans or debt securities payable by various companies are put into a pool, and new securities are issued which pay out according to the pool’s collective performance. The new securities are divided into three (or more) levels of risk. The lowest, equity tranche, takes the first loss if any companies in the pool default. If nough losses eat that up, the next, mezzanine level suffers. The most protected level, the senior tranche, should still be safe, unless the collective pool has severe losses. It takes only a couple of defaults in a pool of 100 companies to destroy the equity tranche. Downgrades of investment-grade corporate bonds in America were a record 22% in 2002, according to Moody’s and it recorded bond defaults of $ 160 billion worldwide. The equity and mezzanine tranches of many CDOs have suffered severe losses; some have been wiped out. Even senior tranches, usually rated AAA, have been downgraded because losses may yet reach them. Thus, the whole concept of CDOs as in vogue refers to absolute risk and exploitation.

According to the concept of Option (khiyar) as we find in Shariah literature, the informationally disadvantaged party at the time of entering into the contract has the option to cancel the contract within a specified period. A person has also the right to undo his purchase if the seller specifically allows as part of the terms of the sale. All such forms of option are in the nature of rights embedded in a contract. In the term khiyar as used in Fiqh books we do not see any analogy that would lead us to acceptance of the structure of modern option contracts. These are independent financial contracts traded for a price that do not have any clear-cut parallel in the classical Islamic theory of contracts. Khiyar relates to a halal contract of exchange that has already taken place, whilst a modern option relates to an exchange that is yet to take place. In the case of khiyar, the exchange of one or both counter values is effected immediately while in the case of the modern option contract, future delivery applies to both the payment and the underlying asset. In addition, uncertainty as to the materialization of the exchange exists with the modern option contract but not in khiyar. A resolution of the Islamic Fiqh Academy of the OIC asserts, “Option contracts as currently applied in the world financial markets are a new type of contracts which do not come under any of Shariah denominated contracts. Since the subject of the contract is neither a sum of money nor a utility or a financial right which may be waived, the contract is not permissible in Shariah.

Most of the derivatives incorporate gharar (absolute risk), gambling and interest and support speculative activities. Islamic legal rules, particularly the ban on Gharar and on the sale of debt for debt, do not allow transactions devoid of real/productive activities. Derivatives involving such financial contracts which themselves are prohibited in Shariah (Riba based bonds & forward foreign exchange where mutual exchange is not simultaneous, for example) are clearly un-acceptable according to the Shariah principles. In case the underlying assets are equities and commodities it would be seen whether or not Riba and Gharar are involved. Experts are of the view that even in case of acceptable forms of underlying assets, a key valuation element in arriving at the fair value of an option contract remains the rate of interest. The Black-Scholes formula proposes that since an option can be perfectly hedged through constant trading in the underlying asset, the option position should be riskless and hence earn the buyer the risk free rate of interest on the premium that was paid for it. (In reality, constant trading of the underlying asset to achieve the perfect hedge is unattainable, and so option prices behave in ways that are not entirely predicted by Black-Scholes.) For the unhedged option, the contract becomes one of pure uncertainty. Neither party knows whether the option would be exercised, as it is dependent upon the condition of the market at a future date.

According to some writers ‘Arbun'can become a basis for developing some kinds of Shariah compliant options – contract by which one party buys the right to purchase from the other party specified goods for a specified price on a certain date. ‘Arbun’ is a void contract according to a Hadith and the three schools of Islamic law. Only Hanabalah uphold ‘Arbun’ with the condition imposed by some of them that time should be stipulated for the option. The OIC Fiqh Academy has also endorsed ‘Arbun’ but only if time limit is specified. Even if ‘Arbun’ is accepted as valid transaction, most of the derivatives current in the market would still be unacceptable from Shariah angle due to involvement to Gharar and Riba. A Call Option can be considered near to Bai al Arbun in the sense that the seller does not return the premium or advance payment to the buyer in case the latter does not exercise the purchase option and the buyer loses the option premium even if the option is exercised and the contract is confirmed. In case of Bai al-Arbun, however, the option premium is adjusted in sale price when the contract is confirmed. However, this subject of derivatives needs extensive research.

Samuel L. Hayes, after detailed discussion on derivatives concludes, “There are no effective derivates of Islamic debt contracts which replicate conventional risk-hedging and leveraging contracts such as swaps, futures, and options. Similarly, in the equity security sector, there are no risk-hedging or leveraging contracts in Islamic finance truly comparable to available conventional derivatives….. With respect to commodities and other goods, the Salam contract is an imperfect Islamic substitute for a conventional forward contract. The related Istisna contract for goods being manufactured for a buyer provides another partial Islamic proxy for a forward contract. It is also possible to construct an Islamic contract which partially replicates a conventional futures contract, via back-to-back Salam contracts”.

2010-02-16T14:15:00.006-01:00

Derivatives in Islamic Finance

During the late 1980's an opportunity came my way to become an option dealer in the London capital market. At that time I was not a practising Muslim and, given that the pay in this line of work could be enormous, I accepted without a second thought. As the years went by, it occurred to me that the size of my pay packet bore little relation to the benefit enjoyed by society as a result of my work. Others had misgivings of their own. Accountants complained of the hidden risks that banks were taking 'off balance sheet' and, from time to time, government ministers would make a scapegoat of the derivatives market when other excuses were not forthcoming. Regulators scrambled to recruit staff who could understand what the traders were doing but offerred low rates of pay and, therefore, sufferred from a persistent lack of qualified staff.

As the derivatives booty trickled down in ever greater quantities, the financial establishment began to seek a wider economic justification for the existence of this market. The business schools, progenitors of modern option valuation techniques, were only too happy to help. The increasing diversity of hedging products provided a more complete spectrum of risk management tools and was therefore of benefit to society, they told us. But we in the market saw a different story unfolding. XYZ bank would lure the poorly paid treasury manager at the Kingdom of Somewhere-Or-Other into a complex swap deal that only a PhD in Nuclear Physics could properly value. So the bank would book a multi-million dollar profit the very day the deal was closed and the Kingdom's officers would never know any better. Derivatives departments began to swarm around corporate clients like bees around a honey pot.

Of course the scam couldn't last forever. By the early 1990's, Bankers Trust traders were caught discussing the size of the "rip-off factor" on a Procter and Gamble derivatives deal. We know this because the episode was taped and made public on behalf of the company. It was one of many large derivatives losses accrued by clients that had acted on the eager encouragement of their bankers. Soon Orange County and Metallgesellschaft would fall into the same trap at a cost of hundreds of millions of dollars more.

"We can protect you against market volatility" the investment bankers tell their clients. But the market volatility is caused by the activities of those very same investment bankers, and so the clients are sold nothing for something. Protection against a danger that never needed to exist in the first place. Sadly, the world learned little from the derivatives explosion. By the time the internet boom collapsed, a new generation of clients was learning about the motivations that really drive bankers and advisors. The clients tend to be offerred the products that provide financial institutions with the highest profit margin.

What if every country had pure gold coins as its currency? Then what would be the point of the foreign exchange market? What would be the point of exchanging one ounce of American gold for one ounce of Japanese gold? Who would need currency derivatives? Who would need to pay commission on foreign currency transactions? We see very quickly where this idea leads. An end to a trillion-dollar-a-day market that produces huge profits for the financial establishment. But of course profit is not necessarily indicative of productive effort. Theft is a good example of this principle. If we want to achieve a more efficient economy, we must promote systems in which people work in productive pursuits rather than unproductive ones. The foreign exchange market is an unproductive pursuit in that it exists because of an unnecessary monetary convention. Change the convention, in other words adopt a different monetary standard, and all those clever dealers can become doctors and teachers instead!

But back to options. Modern option contracts have a variety of features in common that can be summarised as follows. An option is a right not an obligation to enter into an underlying contract of exchange at or before a specified future date (the expiry date). The buyer of that option pays a price (the premium) to the seller (the writer) of the option. The option may give its holder the right to buy a specified asset (the underlying) from the option writer, gold for example, such being a call option on gold. Or the option may give its holder the right to sell the underlying asset to the option writer. This would be a put option. Every option has a strike price, this being the price at which the holder may buy or sell the underlying upon exercise of the option. And every option has a nominal size, this being the amount of underlying that the option holder may buy or sell at the strike price. A 15 December 2001 European call on gold at $400 per ounce in 100 ounces gives its holder the right to buy 100 ounces of gold from the option writer at $400 per ounce on the 15 December 2001, if the holder so wishes.

If we exclude those financial contracts which are of themselves haram (bonds and forward foreign exchange for example), then we are left with a set of underlyings such as equities and commodities upon which a derivative contract may be based.

Curiously, even where acceptable forms of underlying such as these are concerned, a key valuation element in arriving at the fair value of an option contract remains the rate of interest. The Black Scholes formula proposes that since an option can be perfectly hedged through constant trading in the underlying, the option position should be riskless and hence earn the buyer the riskless rate of interest on the premium that was paid for it. (In reality, constant trading of the underlying asset to achieve the perfect hedge is unattainable, and so option prices behave in ways that are not entirely predicted by Black-Scholes.) For the unhedged option, the contract becomes one of pure uncertainty. Neither party knows whether the option will be exercised, as it is dependent upon the condition of the market at a future date.

The first problem with the standard option contract from a Shari`ah perspective is that a contract of exchange in which both payment and underlying are deferred is widely held to be prohibited. The second problem is the uncertainty that exists with regard to whether or not the option will be exercised. Thirdly, if the option contract is judged to be halal, the question then arises as to whether that option can itself be sold to a third party, as is the case in the market for warrants for example. Fourthly, by buying a put option and selling a call option, a trader can replicate a short position in an underlying asset. Where these options are cash settled, the trader can be seen to achieve the same cash-flows as a short seller of that underlying. Shari`ah scholars have agreed that selling what one does not own is a prohibited commerical activity, and the possibility that such an activitiy can be synthesised through the use of options must therefore call into question their validity under Shari`ah. There is a fifth problem that pertains to more complex option contracts where the strike price itself varies according to an agreed formula. Such is the case with a serial option. For example, a one month 'at-the-money' serial call with daily resets gives the holder a series of one day call options whose strike price is the price of the underlying asset at the previous day's close of trading. As this price is unknown in advance, the strike price itself cannot be known. This represents further gharar.

Under Bay al-Urban, a deposit is paid on an item that a prospective buyer may purchase at a later time. Should the buyer not complete the purchase, the deposit is lost. This contract has been used as a justification for Islamic options by some writers who argue that the deposit can be seen as the premium paid by the buyer of a call option. The problem is that the scholars do not widely allow bay al-Urban. According to Ibn Rushd in Bidayat al-Mujtahid:
Within this topic is the sale of the urban (sale with earnest money). The majority of jurists of different regions hold that it is not permitted, but it is related from a group of the Tabi'un that they permitted it, among them are Mujahid, Ibn Sirin, Nafi ibn al-Harth and Zayd ibn Aslam. The form it takes is that a person puchases a thing and delivers to the seller part of the price on the condition that if the sale is executed between them this earnest money will form part of the price of the goods, if it is not executed the buyer will forgo it. The majority inclined toward its prohibition, as it is from the category of gharar, mukhatara and the devouring of wealth of others without compensation. Zayd used to say, "The messenger of Allah (God's peace and blessings be upon him) permitted it". The Ahl al-Hadith said that this is not known from the messenger of Allah (God's peace and blessings be upon him).

Under Khiyar, which is allowed by the jurists, the buyer of an item has the right to undo his purchase if the seller specifically allows as part of the terms of the sale. This is in other words an option to cancel a previously agreed sale. All buyers have a right to cancel a sale following purchase but before leaving the presence of the seller (khiyar al-majlis). This right is different to that expressly given by the seller to the buyer under sale with an option (bay al-khiyar), where the buyer may leave the presence of the seller for a specified period of time before returning to cancel the sale and take back the money that was paid.

Ibn Rushd in Bidayat al-Mujtahid comments:
Permissibility of option is upheld by the majority, except for al-Thawri and Ibn Shubrama, as well as a group of the Zahirities. The reliance of the majority is on the tradition of Hibban ibn Munqidh, which contains the words "and you have an option for three days", and also what has been related of the tradition of Ibn Umar: "The parties to sale have an option as long as they have not parted, except in sale with an option". The reliance of those who prohibit it is (on the argument) that it constitutes gharar and that the basis of sale is that it is binding, unless definitive evidence is produced for the permissibility of sale with an option from the Qur'an or authentic sunna or ijma. They also said that the tradition of Hibban is either not authentic or it is specific to the case of a person who complained to the Prophet (God's peace and blessings be upon him) that he was deceived in sales. They said that the tradition of Ibn Umar and the words in it, "except sale with an option", have been interpreted through another version of this tradition in which the words "that he says to his counterpart: 'Choose'," have been recorded.

In khiyar it is difficult to see any analogy that would lead us to the acceptance of the modern option contract as described above. Khiyar relates to a halal contract of exchange that has already taken place, whilst a modern option relates to an exchange that is yet to take place. In the case of khiyar, the exchange of one or both countervalues is effected immediately. In the case of the modern option contract, future delivery applies to both the payment and the underlying asset. In addition, uncertainty as to the materialisation of the exchange exists with the modern option contract but not in khiyar.

Disagreements among traditional scholars in the matter of khiyar arise in minor details, such as the length of time for which the buyer has the option to return the goods, or who is liable for any damage to the goods whilst the buyer is in posession of them during the option period. These scholars do not seem to have disagreed upon those fundamental principles which distinguish khiyar from the modern option contract.

It is my view, having been involved in derivatives dealing, that the potential exists in this market to cause a serious breakdown in the financial system. The degrees of leverage that are afforded by option contracts can be so high that large unpredictable market moves in underlying prices may one day lead to the insolvency of a major financial institution. Liabilities cannot be perfectly hedged even where that is the intention, and some traders deliberately do not hedge their option portfolios because such action would limit the potential for high returns. The case of Long Term Capital Management in the United States, rescued by a Federal Reserve bail out in 1998, demonstrates the degree of risk that can be incurred. The question is whether the central bank or other authorities will be able to move quickly enough, or in large enough measure, to prevent future failings.

When looked at from the Islamic perspective, as with so many other Islamic financial products, it seems that theory needs to be stretched in order to justify an Islamic option contract. The macro-economic arguments for their existence are of dubious merit, based as they are on minimising risks which do not need to exist in the first place. Better to structure the economic system such that it does not suffer from continuing volatility. If there was no such thing as interest, there would be no such thing as interest rate options. The same with foreign currency. What we are seeing in the Western world is the emergence of financial products that are a symptom of a system that has gone wrong. Islamic financiers who look at the products of this system as a paradigm are making a big mistake.

2009-12-09T13:09:00.003-01:00

Islamic finance in Sri Lanka needs good corporate governance, regulatory and legislative measures

By Riyazi Farook

The Islamic finance is certainly the fastest growing industry in the world, worth over US$ 1 trillion to date- a 28% increase from last year, which clearly demonstrates the industry’s potential despite the global financial crisis and the consequent economy downturn. Interestingly, industry is already catering to as much as 15% non-Muslim customer base throughout the world.

The Sri Lankan financial sector remained comparatively insulated from the global financial crisis, despite the fact, similar to the island’s conventional finance sector Islamic finance has also witnessed the insolvency before even the industry kicked off.

Institutions offering Islamic financial services in Sri Lanka cannot undermine the corporate governance practice, which should be on top of its strategic agenda to credibly protect particularly depositors' and shareholders' resources in the investment pools. Regulatory measures should also ensure Islamic financial service ventures are not just merely attracted to quick profit from the emerging industry but to aim at what global Islamic finance industry being achieved over the last three decades.

Industry Overview

In March 2005, CBSL issued an ordinance to include provisions for Islamic finance in which Sri Lanka became one of the few countries to have specific legislation for Shari’ah-compliant financial operations. The amendment also provided flexibility for conventional financial institutions to establish windows to offer Islamic banking and finance products and services.

According to Islamic Finance News Malaysia Islamic banking sector in Sri Lanka is estimated around US$900 million. Sri Lanka has number Islamic financial services providers including market leader Amana Investments Limited, Muslim Commercial Bank (MCB), People’s Leasing Company - Islamic Financial Services Unit, First Global Group, and ABC Investments (Baraka Islamic Financial Services). Amana Takaful Limited (ATL), the only takaful provider in the country, was introduced in 2002 and ATL was listed on the Colombo Stock Exchange (CSE) in late 2006. Amana Securities Limited (ASL), a subsidiary of Amana Investments Limited, is a trading member of the CSE and is one of just 20 stock-broking companies licensed to operate on the CSE.

The country’s largest bank, Bank of Ceylon, was planning to launch an Islamic banking unit in early 2008, but the bank decided to delay due to the global financial crisis.

In a remarkable development, Amana Investments Limited was recently issued a Letter of Provisional Approval by CBSL. Presently AIL is in the process of fulfilling certain condition listed in the Letter of provisional Approval such as raising of a minimum capital of Rs. 2.5 billion to establish island’s first ever full-fledged Islamic licensed commercial bank named Amana Bank Limited under Section 5 of the banking Act No. 30 of 1988 to carry out Islamic banking business in Sri Lanka aiming to deliver retail, business, and private banking facilities including wealth management, infrastructure financing, bonds, corporate treasury placement and many other financial products and services in the country to attract Shari’ah compliant investment funds from the Middle East and the Far East.

The ‘DJIM Amana Sri Lanka Index' launched in collaboration with Dow Jones Indexes, USA, The DJIM Amana Sri Lanka Index is the only Islamic Index in Sri Lanka, provides access to investors who seeks investment opportunities in Sri Lanka stocks that comply with Shari’ah requirements.

Country’s first ever planned Sukuk issuance attempt to raise approximately Rs. 500 million (US$ 4.5mn) by the Islamic Financial Services Unit, window of the People Leasing Company Co. LTD. - a fully owned subsidiary of People’s Bank (100% State-owned bank) was postponed primarily due to procedural delays and with regard to regulatory authorities, and consequences of the global financial meltdown. However, the company sources said that it is now rescheduling to launch the Sukuk once the investors sentiment and market condition become more favourable.

Corporate Governance PRACTICE

The Corporate Governance, including risk management staged to rigorous debate as corporate scandals and failures around the world shook the financial industry, and indeed Islamic finance industry is not immune to scrutiny. Sri Lanka has also been experiencing increased scams and failures in conventional including Islamic financial industry for last few years, which resulted CBSL to issue a voluntary code of corporate governance practice to financial institutions but, corporate governance code yet to be made mandatory for financial institutions to prevent such scandals and failures in future.

Generally, corporate governance in Islamic finance institutions is quite similar to a combination of both Combined Code and Sarbanes-Oxley, because the corporate governance of an Islamic financial institutions distinguish in many forms to that of its conventional counterparts, most importantly Islamic finance institutions need to ensure that they comply with the Shariah (Islamic law) meaning that unlike secular governance practices Shariah would first examine at the transactional structure to find whether the process involves any activities or elements that contradict the profits generation. Also Islamic financial institutions must invite customers to contribute an active role in the governance process.

For instance, the Accounting and Auditing Organisation for Islamic Financial Institutions (AAOIFI) Financial Accounting standards 11 provides clear principles and guidelines for Islamic financial institutions to disclose the share of the actual profits and of the funds from the returns they receive and emphasise the their disclosure in the financial statements and annual reports. The CBSL, as frontline regulator should regulate corporate governance practice by improving the levels of disclosure, compelling transparency, reporting standards, risk management and accountability to protect investors and maintain the integrity of this emerging financial industry competitive.

In the absence of sufficient legal and regulatory framework the emerging market unable to remain and perform competitive in the financial industry. A good example, in the UK or USA Islamic finance services industry subject to higher standards of corporate governance requirements and making them attractive for investment. To improve viability of the island’s Islamic finance and get greater benefit from this fastest growing industry, Corporate Governance should be enforced at the core of the Islamic financial institutions in Sri Lanka.

REGULATORY AND LEGISLATIVE ISSUES

The country’s Islamic finance institutions and experts will continue advising the CBSL on the development of new laws and regulations to facilitate the Islamic finance industry. Particularly, Amana Investments Limited has not only established itself as the pioneer of Sri Lanka’s Islamic financial services industry, but in the forefront lobbying the CBSL for relevant changes in the Islamic finance legal framework.

The Islamic finance directive issued by the CBSL supervision department defines Islamic banking and two of its fundamental elements clearly in the legislation. Receiving money for the investment in a commercial venture agreed based on the profit and loss sharing principles including Mudaraba and Musharaka contracts. Second, a contract based on buy and sale transaction agreement based on deferred payment option such as Murabaha.

Islamic Finance Focus Group (IFFG) was recently set up by Islamic finance industry experts and interest groups, including KPMG Sri Lanka. The main objective of IFFG is to advise and lobby the Sri Lankan government, relevant regulatory bodies and parties to allow Islamic finance to compete on a level playing field with conventional financial institutions. IFFG continues to play a pivotal role in the development of new tax legislation and regulations in Sri Lanka to facilitate Islamic finance. In order to achieve this development there are few areas of anomalies in the Sri Lanka’s tax system that required to be addressed carefully for urgent reform and restructure to accommodate all forms of Islamic finance transaction in Sri Lanka.

Some Shari’ah compliant transactions are more affected by the Value Added Tax (VAT) than conventional finance, but this area of legislation is difficult to modify, as it quite similar to the EU tax system. However, it is significant to note that the Sri Lankan tax regime is not as complicated and extensive as the EU, UK or US tax system.

IFFG also working closely with CBSL and regulatory bodies to enable new legislation to be drafted to allow Islamic financial institutions to offer comprehensive range of Shari’ah compliant products without occurring the adverse direct tax consequences. Sri Lankan government should aim these measures to promote the island as a leading centre for Islamic finance in the South Asian region.

Growth Potential

The stable foundations for the future development of Islamic finance in Sri Lanka have yet to be laid firmly. Although future growth cannot be precisely forecasted due to lack of research on the island's Islamic financial market, there is a clear scope for expansion.

With mega post-war development projects in the pipeline such as infrastructure and economy development, the majority in the road sector would that have a positive impact on the construction industry, sovereign sukuk (Bond) issuance will potentially attract widespread international and local investors’ interest. Islamic finance institutions and experts realise the importance of encourage the Sri Lankan government to issue sovereign sukuk as an alternative to government bonds in the future.

On the aspect of development and challenges of Sri Lanka’s Islamic finance industry, Managing Director of the island’s market leader Amana Investments Limited, Faizal Salieh added, “Having completed twelve years of strong presence in country’s financial industry, we are continuously lobbying for regulatory and fiscal legislation to ensure innovation and growth; we are happy that CBSL has introduced promising changes in regulatory framework to support Islamic banking and Insurance Board of Sri Lanka has also licensed Takaful operators. Islamic finance has been supported by the tax authority applying substantial reform so far, but now we need progressive tax neutrality for Islamic financial products. At this stage Islamic finance industry imposing tremendous challenges for market players to ensure good corporate governance, risk management, transparency and Shariah compliance practices.”

The Sri Lankan government has allowed enough avenues in the fiscal and regulatory policy framework to facilitate Islamic finance since 2005. Furthermore, positive support and a favourable financial regulatory environment are encouraging for Islamic financial institutions to set up operations and for local and international investors to participate in taking the country’s Islamic finance industry to new growth.

Riyazi Farook can be contacted for further enquiries at riyazif@islamicfinanceandbanking.com

2009-09-27T12:27:00.002-01:00

The Legal Aspects of Marketing for Islamic Banking Services

INTRODUCTION

In this paper I would deal with basically the two aspects which I consider play a major role, other things being equal, in the decision of a customer opting for or deciding to take up a particular banking product, or availing himself of a particular banking service, over another in relation to Islamic banking services. These are:

1. The forum in which any disputes arising in the transaction will be decided; and
2. The law that will be applied in deciding the dispute.
Accordingly, a clear understanding of these matters is essential in marketing Islamic banking services.

ISLAMIC BANKS AND FINANCIAL INSTITUTIONS

In the strict sense of the word there is o¬nly o¬ne Islamic bank in Malaysia, Bank Islam Malaysia Berhad, it being the o¬nly bank to date licensed under the Islamic Banking Act, 1983 ("The Islamic Banking Act"). However under the amendments made to the Banking and Financial Institutions Act, 1989 ("BAFIA") (Which came into force o¬n 1 August 1996) all conventional banks and financial institutions. Mohamed Ismail Shariff 1 April 1997, The legal aspects of marketing for Islamic banking services.

Can carry o¬n Islamic banking business and Islamic financial business. This is brought about by the amendment to Section 124 of the BAFIA which reads as follows:

"124. (1) Except as provided in section 33, nothing in this Act or the Islamic Banking Act 1983 shall prohibit or restrict any licensed institution from carrying o¬n Islamic banking business or Islamic financial business, in addition to its' existing licensed business, provided that the licensed institution shall consult the Bank before it carries o¬n Islamic banking business or any Islamic financial business.

(2) For the avoidance of doubt, it is declared that a licensed institution shall, in respect of the Islamic banking business or Islamic financial business carried o¬n by it, be subject to the provisions of this Act.

(3) Any licensed institution carrying o¬n Islamic banking business or Islamic financial business, in addition to its existing licensed business may, from time to time seek the advice of the Syariah Advisory Council established under,subsection (7), o¬n the operations of its business in order to ensure that it does not involve any element which is not approved by the Religion of Islam.

(4) Any licensed institution carrying o¬n Islamic banking business or Islamic financial business shall comply with any written directions relating to the Islamic banking business or any other Islamic financial business, carried o¬n by such licenced institution, issued from time to time by the Bank, in consultation with the Syariah Advisory Council.

(5) Any licensed institution carrying o¬n Islamic banking business or Islamic financial business shall be deemed to be not an Islamic bank.

(6) This Act shall not apply to an Islamic bank.

(7) For the purposes of this section -

(a) There shall be established a Syariah Advisory Council which shall consist of such members, and shall have such functions, powers and duties as may be specified by the Bank to advise the Bank o¬n the Syariah relating to Islamic banking business or Islamic financial business;
(b) "Islamic banking business" has the meaning assigned thereto under the Islamic Banking Act 1983 1; and
(c) "Islamic financial business" means any financial business, the aims and operations of which, do not involve any element which is not approved by the Religion of Islam."
So it is clear that both categories of banks, Islamic and conventional, can do Islamic banking business. And in a broad sense they are both subject to the same law (with some variations) in so far as their Islamic banking business is concerned.

WHICH COURT HAS JURISDCTION OVER ISLAMIC BANKING LAW MATTERS - THE CIVIL COURTS OR THE SYARIAH COURTS?

This question arises because of certain amendments made to the Constitution of Malaysia with regard to the jurisdiction of the High Court. The provision of the Constitution referred to is Article 121. Prior to the amendment it read as follows:

"121. (1) Subject to Clause (2) the judicial power of the Federation shall be vested in two High Courts of co-ordinate jurisdiction and status, namely

(a) o¬ne in the States of Malaya, which shall be known as the High Court in Malaya and shall have its principal registry in Kuala Lumpur; and
(b) o¬ne in the States of Sabah and Sarawak, which shall be known as the High Court in Borneo and shall have its principal registry at such place in the States of Sabah and Sarawak as the Yang di-Pertuan Agong may determine;
and in such inferior courts as may be provided by federal law.

(2) The following jurisdiction shall be vested in a court which shall be known as the Supreme Court and shall have its principal registry in Kuala Lumpur, that is to say
(a) Exclusive jurisdiction to determine appeals from decisions of a High Court or a judge thereof (except decisions of a High Court given by a registrar or other officer of the court and appealable under federal law to a judge of the Court);

(b) Such original or consultative jurisdiction as is specified in Articles 128 and 130; and

(c) Such other jurisdiction as may be conferred by or under federal law."
Clauses (3) and (4) are not relevant to the present discussion.
The amended Article reads as follows:
"121. (1) There shall be two High Courts of co-ordinate jurisdiction and status namely -
(a) o¬ne in the states of Malaya, which shall be known as the High Court in Malaya and shall have its principal registry in Kuala Lumpur;

(b) o¬ne in the States of Sabah and Sarawak which shall be known as the High Court in Borneo and shall have its principal registry at such place in the States of Sabah and Sarawak as the Yang diPertuan Agung may determine;

and such inferior courts as may be provided for by federal law; and the High Courts and inferior courts shall have such jurisdiction and powers as may be conferred by or under federal law.
(1A) The courts referred to in clause (1) shall have no jurisdiction in respect of any matter within the jurisdiction of the Syariah Courts.

(2) There shall be a court which shall be known as the Supreme Court and shall have its principal registry in Kuala Lumpur and the Supreme Court shall have the following jurisdiction, that is to say -

(a) Exclusive jurisdiction to determine appeals from decisions of a High Court or a judge thereof (except decisions of a High Court given by a registrar or other officer of the court and appealable to a judge of the court);

(b) Such original or consultative jurisdiction as is specified in articles 128 and 130; and
(c)Such other jurisdiction as may be conferred by or under federal law."

Relying o¬n this amendment (particularly Clause (1A)) it has been argued that the Civil Courts no longer have jurisdiction to hear cases where Islamic law is applicable, such jurisdiction now being vested in the Syariah Courts. Previously the Syariah Courts and the Civil Courts exercised concurrent jurisdiction o¬n certain matters involving Islamic law.2 With the inclusion of Clause (1A) in Article 121 it was thought that the jurisdiction of the Civil Courts o¬n matters involving Islamic law had been taken away.

In at least o¬ne case involving a banking transaction based o¬n Islamic principles in which the writer was Counsel the High Court has ruled that Clause (1A) has not take away its jurisdiction and that it did have jurisdiction to hear the case.3 It is the writer's view, with respect, that this decision is correct for reasons which need not be discussed in detail here.

In brief, Syariah Courts o¬nly have jurisdiction in respect of matters that fall within the State List in the Federal Constitution.4 The Civil Courts have jurisdiction in respect of matters which fall within the Federal List. The Ninth Schedule of the Federal Constitution contains the Federal List and the State List which set out the respective areas where the Federal Parliament or the State Legislature may make laws. Banking as well as the incorporation and regulation of corporations fall within the Federal List. Banks are companies incorporated under the Companies Act, 1965. Accordingly they fall within the jurisdiction of the Civil Courts.
Besides, the State List, which provides for the establishment of Syariah Courts, states that they (the Syariah Courts) "shall have The legal aspects of marketing jurisdiction o¬nly over persons professing the religion of Islam..."5 Banks being a creature of statute can have no religion.
For these reasons it is clear that the Syariah Courts cannot assume jurisdiction over banks and other companies or in respect of any other matter that falls within the Federal List.
There is no written judgment o¬n this issue and it is hoped that should the matter be ever raised again there would be an authoritative pronouncement from the Courts o¬n the subject.

WHAT LAW APPLIES TO ISLAMIC BANKING TRANSACTIONS

The Islamic Banking Act is an unique piece of legislation. It provides for the setting up and licensing of "Islamic banks". It is unique in the sense that probably for the first time an Act of Parliament has been enacted to deal specifically with Islamic banking. The writer is not aware of similar legislation in any other jurisdiction following the common law system.
Up to the present o¬nly o¬ne bank, Bank Islam, has been licensed under the Islamic Banking Act.
The Islamic Banking Act stipulates that a bank licensed under it Act shall carry o¬n "Islamic banking business".

Section 2 defines "Islamic Bank" as "any company which carries o¬n Islamic banking business and holds a valid licence..." and "Islamic banking business" as "banking business whose aims and operations do not involve any element which is not approved by the Religion of Islam". It is to be noted that "banking business" itself is not defined.

The definition of Islamic banking business appears at first flush to be simple; but in reality it is not so. What is the meaning, for example, of the expression "any element which is not approved by the Religion of Islam"? There are four madzhabs in the sunni branch of Islam (as opposed to the Shi'a branch). And opinions even among the four schools do vary o¬n many aspects of the law and no o¬ne can say that o¬ne opinion is correct and the others are not. It is more a question of choice. In the event of differences in opinion o¬n the law applicable in respect of any particular matter, there is no direction in the Act as to the law of which madhab is to be applied. Seen from this point of view the wording may seem to be too general. It might be thought that greater certainty would have been achieved if the definition had been more precise, such as providing that in the event of a difference the law to be applied is the law in accordance with, say, the Shafi'e madzhab.

On the other hand, however, the broad definition does have some positive aspects. The writer considers the definition to be a liberal o¬ne. That would facilitate, for instance, the reception and application of the law from any of the four schools or even from the Shi'a branch to suit the circumstances, thus making the resulting proposition of the law more widely acceptable.
The Islamic Banking Act by not defining banking business has either left it to be: implied by the Courts that the meaning of the term is to be the same as that applied in conventional banking or intended that term to acquire a meaning by custom and usage over the years. The civil courts would have to rule o¬n that issue when the occasion arises; but for now it is an open question.

THE APPLICATION OF ISLAMIC LAW WITHIN A COMMON LAW SYSTEM

It must be remembered that the Islamic Banking Act and Islamic law generally are to be applied and implemented within the existing common law system and the regime of all other existing laws. This includes not o¬nly the laws but also the courts system and court procedure. Needless to say, that system and those laws and procedure were not drafted or designed with Islamic law in mind or to facilitate the application of Islamic law.

A moment's reflection will bring into focus the enormity of the problem. To a legal practitioner this is a legal nightmare. What this means is that any document that is to be used1 in an Islamic banking transaction has to comply with BOTH (1) Islamic law (or in the words of the Act it must "not involve any element which is not approved by the Religion of Islam") AND (2) also with all other applicable laws, eg Contracts Act, 1950, Bills of Exchange Act,1949,just to name two. To take a simple illustration: a contract made in a banking transaction by an Islamic bank or as an Islamic transaction must be valid under Islamic law AND also under the civil law, for it to be enforceable in the civil courts. For example, a contract may be valid under Islamic law yet it could fail in the civil courts for want of consideration and thus be unenforceable. The reverse situation can quite as well happen.

Thus any document or instrument to be used in Islamic banking has to:
(1) Be in accord with Islamic law;
(2) Be in accord with the existing civil laws; and
(3) Be structured in such a way (eg, as to form) as to be enforceable in the civil courts.
This problem was realised at the outset when banking documents were first drafted for use by Bank Islam and a great deal of caution was exercised to ensure their compliance with the above-stated requirements.6 Over the years these documents have been modified and improved upon.
The validity of some of these documents were challenged in the courts but, happily, none of those challenges have been successful.7

One provision of particular significance is Section 3(5)(b) of the Islamic Banking Act which provides that the Central Bank (ie Bank Negara Malaysia) shall not recommend the grant of a licence, and the Minister shall not grant a licence, unless he is satisfied:

(b) that there is, in the articles of association of the bank concerned, provision for the establishment of a Syar'iah advisory body to advise the bank o¬n the operations of its banking business in order to ensure that they do not involve any element which is not approved by the Religion of Islam".

This is an important provision. However, its real purport has not been tested in the courts as yet.8 The setting up of a Syar'iah advisory body is a statutory requirement and its f-unction is "to ensure that [the operations of the bank] do not involve any element which is not approved by the Religion of Islam". What is the ambit of this subsection? To take an example, if a particular document used in banking transactions by a bank licensed under the Islamic Banking Act has been approved by its Syar'iah advisory body, can it then be challenged in court as being contrary to Syar' iah? Can the court find such a document to be not in accordance with the Syar'iah? If it does so, what is the effect of it o¬n the decision of the Syar'iah advisory body?

Put another way, are decisisons of the Syar'iah advisory body open to review by the courts? This is by no means an easy question to answer. And it is not easy either to venture an opinion o¬n the issue since any opinion has to be relative to particular factual situations. In the writer's view the issue should be cleared up by legislation rather than by lengthy and costly litigation in the courts.

The establishment of the Syariah Advisory Council under BAFIA raises another problem. It is this: it will be recalled that o¬ne of the requirements of an Islamic Bank is to have an in-house Syariah advisory body "to advise the bank o¬n the operations of its banking business". What would be the position if the advice of these two bodies (both of which are established under statute) o¬n the same issue differ?

Such conflict of opinion is not unforeseeable. And it should be avoided before it arises. There must be some machinery set up to ensure that both advisory bodies consult each other and agree o¬n the advice to be rendered o¬n any issue of Islamic law. It would be even better if the twc bodies are merged into o¬ne so that there would be no opportunity for such conflicting advice to be rendered at all.

It must be recognised, however, that the documents now in general use by Bank Islam (and adopted and used by other' banks and financial institutions) cannot meet all the banking or commercial requirements. As the application and use of Islamic law in commercial transactions become more pervasive the necessity for new types of documents will be felt (as they have been) and these must be devised (as has beer, done). Great ingenuity and far-sightedness will be needed in the creation of such documents. But the task is enormous and urgent and should not be done piecemeal. It must be adressed and necessary action taken o¬n a collective or central basis rather than by individual banks or financial institutions as seems to be the practice now.

CONCLUSION

In Malaysia Islamic banking is o¬n par with conventional banking:

1. Islamic banking is regulated by the Islamic Banking Act (under which Islamic law is to be applied to banking transactions) but all other laws applicable to banking matters generally also apply to Islamic banking. Thus a customer who does Islamic banking enjoys double protection; and
2. Any legal disputes involving Islamic banking matters are brought before the civil courts.
Thus the writer sees no major legal impediment for the growth of Islamic banking in Malaysia, though certain amendments to existing laws need to be made to make them more suited to Islamic law principles. The real challenge facing Islamic bankers is to bring home the message to Muslims and, more importantly, to non-Muslims:
1.That Islamic banking is open and available to everyone, Muslim and non-Muslim,
2. That it is relevant to present times and can meet the demands of modern-day business; and
3. That it is a true and in many respects a better alternative to conventional banking.

2009-07-01T21:58:00.005-01:00

Islamic Finance to Reduce Fiscal Deficit in India

Syed Zahid Ahmad

(aicmeu@yahoo.com)

At a time when economic recovery needs more stimuli by the Government of India (GoI), there is also an urgent need to safeguard the economy from the debt trap because the GDP growth rate fell to 6.7% in 2008-09 against 9% in 2007-08; the debt servicing reached to 58.83% of the total expenditure for the year 2008-09. It means maximum receipts are now spent for debt servicing which accounted to 15.87% of the Gross Domestic Product (GDP), while the debt receipts were 9.78% of the GDP in 2008-09. Even the interest payments were 21.39% of the total expenditures by GoI and 5.77% of the GDP in 2008-09. Notably the revenue deficit in 2008-09 is already 30% due to high debt serving ratio to total revenue expenditure.

In an attempt to find the actual reasons behind high fiscal deficit, it is observed that the increased debt receipts by GoI to finance revenue expenditures (especially high debt servicing); increased subsidies on food, fuel and fertilizer; and rural development through schemes like NREGS, farmer's loan waiving scheme and Sarva Shiksha Abhiyan are the three most important factor of high fiscal deficit. Since there is need of more stimuli to counter recession in the economy, it is expected that the plan expenditures may further increase whereas due to recession, the revenue receipts may decline. This decrease in revenue receipts and increase in plan expenditure may increase the fiscal deficit to an unwanted level high. Working upon different options to reduce the fiscal deficit, it is found that Islamic finance can reduce the fiscal deficit even though if revenue receipts declines and plan expenditures increases.

Islamic financial products has a great role to play in reducing the fiscal deficit in emerging economies by replacing the debt based investments for infrastructure with funds mobilized through equity based Government Securities for infrastructure projects. Let's see how Islamic finance may help us reduce our present fiscal deficit.

Revised Estimates as presented in Interim Budget for 2009-10

Income Expenditure Estimates for Union Budget	2008-09 R. E. (in Rs. Crores)
1. Gross Tax Revenue	627,949
2. Net Tax Revenue	465,970
3. Total Non-Tax Revenue	96,203
4. Total Revenue Receipts	562,173
5. Non-debt Receipts	12,265
6. Debt Receipts to finance Fiscal Deficit	326,515
Market Loans	261,972
Market loan as % of total debt receipt	80.23%
Debt receipts as % of total receipts	36.24%
Debt receipts as % of total capital receipts	96.38%
7. Total Capital Receipts	338,780
8. Total Receipts	900,953
9. Total Revenue Non-Plan Expenditure	561,790
10. Total Capital Non-Plan Expenditure	56,206
11. Total Non-Plan Expenditure	617,996
12. Total-Revenue Plan Expenditure	241,656
13. Total Capital Plan Expenditure	41,301
14. Total – Plan Expenditure	282,957
Total Revenue Expenditures	803,446
Total Capital Expenditures	97,507
15. Total Budget Support for Central Plan	204,128
16. Total Central Assistance for State & UT Plans	78,829
17. Total Expenditure*	900,953
DEBT SERVICING
18. Repayment of debt**	337,316
19. Total Interest Payments	192,694
20. Total debt servicing (18+19)	530,010
21. Interest Payments as Percentage to Revenue Receipts	34.30%
22. Total Debt servicing as Percentage to Revenue Receipts	94.28%
23. Non Debt receipt as % of total receipts	1.36%
24. Debt receipts as % of total receipts	36.24%
Interest payment on debts as % of total Expenditure	21.39%
Debt Servicing as % of total Expenditure	58.83%
25. Interest Payments as Percentage to Total Receipts	21.39%
26. Repayment of Debts as Percentage to Total Receipts	37.44%
27. Repayment of Debt as % to GDP	10.10%
28. Interest payment as % to GDP	5.77%
29. Total Debt Servicing as % to GDP	15.87%

* Excludes expenditure matched by receipts (Details in Annex-2 to Expenditure Budget, Volume-1, 2009-2010)

** Excludes discharge of 91 days, 182 days & 14 days intermediate Treasury bills, discharge of Ways & Means Advances including overdraft, income and expenditure of National Small Savings Fund (NSSF), investments of NSSF, Reserve Funds and Deposits not bearing interest and suspense transactions. Discharge under MSS met from the sequestered cash balances is not included.

Data source: http://indiabudget.nic.in/

Notably the total revenue expenditure is 142.92% of total revenue receipts reflecting 30.03% revenue deficits. Major cause of this high revenue deficit is high debt service ratio to total revenue expenditures. For a developing economy like India, in the proposed plan we project increasing capital expenditures, but in revised estimates of 2008-09 budget, the revenue expenditure is 89% and capital expenditure is just 11% of total expenditure; all due to high debt servicing ratio (66%) to total revenue expenditure. Notably the interest payment alone is 24% of total revenue expenditures. So, with capital expenditure being as low as just 11% of total expenditure and debt serving being as high as 59% of total expenditure, how can we go planning for foster inclusive growth?

Debt Finances crossed the Planned Estimates:

The debt based finances for investments under 11^th five year plan document was proposed to be 48.42% of total receipts for 2008-09, whereas the revised budget estimates reveals that the debt receipts were 96.38% of total capital receipts in 2008-09. This reflects our inability to mobilize targeted amount of non debt receipts, causing high fiscal deficit due to interest payments over borrowed debt receipts.

Source-wise Projected Investment for 11^th Plan

(Rs crore at 2006–07 prices)

Sources	2007–08	2008–09	2009–10	2010–11	2011–12	Total 11^th Plan
1. Centre	112,608	128,305	148,545	172,123	204,041	765,622
Central Budget	29,416	33,517	38,804	44,963	53,301	200,000
Internal Generation (IEBR)	24,958	28,437	32,922	38,148	45,222	169,687
Borrowings (IEBR)	58,234	66,352	76,819	89,012	105,518	395,936
2. States	79,499	99,022	124,998	160,232	207,186	670,937
States Budgets	52,689	65,628	82,844	106,195	137,315	444,671
Internal Generation (IEBR)	8,043	10,018	12,646	16,211	20,961	67,880
Borrowings (IEBR)	18,767	23,376	29,508	37,826	48,910	158,386
3. Private	78,166	94,252	115,724	146,762	184,687	619,591
Internal Accruals/Equity	23,450	28,726	34,717	44,029	55,406	185,877
Borrowings	54,716	65,976	81,006	102,733	129,281	433,713
Borrowings as % to private	70.00%	70.00%	70.00%	70.00%	70.00%	70.00%
4. Total Projected Investment	270,273	321,579	389,266	479,117	595,913	2,056,150
Non-Debt	138,555	165,875	201,933	249,546	312,205	1,068,114
Debt	131,718	155,704	188,333	229,571	283,709	988,035
Non Debt as % of Total	51.26%	51.58%	51.88%	52.08%	52.39%	51.95%
Debt as % of Total	48.74%	48.42%	48.38%	47.92%	47.61%	48.05%

Data Source: http://planningcommission.nic.in/

According to 11^th plan documents, projected investments in 2008-09 should be of Rs. 321,579 crores while total plan capital expenditure in revised budget observed as just Rs. 41,301 crores. So the plan capital expenditure is just 12.84% of targeted investment in 2008-09. This shows our inefficiency to make budget development pro to ensure foster and inclusive growth. So, it is better that GoI reduce debt borrowings which ultimately increases revenue deficits; and shift the focus on infrastructure investments to stimulate the economy at a time when GDP growth rates and employment growth rates are falling.

Actual Debt Receipts is 210% to the planned Estimates:

Since the revised estimates on debt receipts (Rs. 326,515 Crores) is already 210% of estimated requirements of debts (Rs. 1,55,704 Crores) by year 2008-09 as projected in 11^th five year plan documents, the GoI should seriously think about this increased debt receipts. The funds utilized for debt servicing (Rs. 530,010 Crores) is already 162% of debt receipts to finance fiscal deficit (Rs. 3.26.515 Crores), the GoI should revisit its budgeting. How good is it to increase the debt receipts at a time when Indian industries are looking for more affordable credits from banks to meet the challenges after the global meltdown?

Likely Sources of Debt as projected by the Planning Commission

(Rs crore at 2006–07 prices)

Likely Sources of Debts	2007–08	2008–09	2009–10	2010–11	2011–12	Total Eleventh Plan
1 Domestic Bank Credit	49,848	63,207	80,147	101,626	128,862	423,691
As % of likely total debt resources	48.69%	49.99%	51.09%	52.00%	52.72%	51.32%
2 Non-Bank Finance Companies	23,852	31,485	41,560	54,859	72,415	224,171
3 Pension/Insurance Companies	9,077	9,984	10,983	12,081	13,289	55,414
4 External Commercial Borrowing (ECB)	19,593	21,768	24,184	26,868	29,851	122,263
5 Likely Total Debt Resources	102,370	126,444	156,874	195,435	244,416	825,539
6 Estimated Requirement of Debt	131,718	155,704	187,333	229,571	283,709	988,035
US$ Billion	32.93	38.93	46.83	57.39	70.93	247.01
7 Gap between Estimated Requirement and Likely Debt Resources (6–5)	29,348	29,260	30,460	34,136	39,292	162,496
US$ Billion	7.34	7.31	7.61	8.53	9.82	40.62

Data Source: http://planningcommission.nic.in/

In year 2008-09 the deficit budget cost an amount of Rs. 192,694 crores to GoI which was paid as interest over the debt receipts borrowed to finance the deficit budget. This may be called as loss to GoI because had there been equity based receipts against debt receipts, GoI would have saved this amount.

Financing Fiscal Deficit through subsidized bank loans is not good

In the 11^th five year plan document it was projected that by year 2008-09, to meet the proposed investment needs around 50% debt receipts worth Rs. 63,207 crores would be mobilized as domestic banks credit. However the figures of revised budget estimates for 2008-09 states that market loans (amounting Rs. 261,972 Crores) are over 80% of total debt receipt by the GoI. The increased flow of subsidized bank loans to GoI for financing fiscal deficit is in fact creating problems for economic growth of the economy because it is creating hurdles for banks to increase the supply of cheaper credit to the private sector at a time when they needs it to minimize their output cost and combat recession. It is observed that beside fall in international demands, the availability of equity finance or cheaper credit sources have affected the business confidence. The equity financial sources are drying up after reversal of capital flows from stock markets due to global meltdown. External Commercial Borrowings (ECBs) and Export Credits have also declined. This all had affected the growth rate for industries.

Industry wise GDP growth trend during recent years

Industry	2006-07	2007-08 (QE)	2008-09 (RE)	Percentage change over previous year
Industry	2006-07	2007-08 (QE)	2008-09 (RE)	2007-08	2008-09
1. Agriculture, forestry & fishing	531,315	557,122	566,045	4.9	1.6
2. Mining & quarrying	60,038	61,999	64,244	3.3	3.6
3. Manufacturing	440,193	476,303	487,739	8.2	2.4
4. Electricity, gas & water supply	60,544	63,730	65,899	5.3	3.4
5. Construction	205,543	226,325	242,577	10.1	7.2
6. Trade, hotels, transport and communication	778,896	875,398	954,589	12.4	9.0
7. Financing, insurance, real estate & business services	409,472	457,584	493,356	11.7	7.8
8. Community, social & personal services	385,118	411,256	464,926	6.8	13.1
9. GDP at factor cost	2,871,120	3,129,717	3,339,375	9.0	6.7

Source: - CSO press release dated 29^th May 2009.

Besides evaluating fall in annual growth rate of Gross Domestic Product (GDP) from 9.0% in 2007-08 to 6.7% in 2008-09, it would also be important to analyze the growth trend for different industries during last year. The Manufacturing industry employing majority of non agricultural workers observed deepest fall where annual growth rate fell to 2.4% in 2008-09 compared to 8.2% in 2007-08. Similarly the annual growth rate of agriculture, forestry and fishing fell to 1.6% in 2008-09 against 4.9% an year ago.

However the increase in annual growth rate for Community, Social and personal services has remarkably increased to 13.1% in 2008-09 as compared to 6.8% in 2007-08 reflecting the impact of increased expenditures by the Government by financing schemes like NREGS. But it would be important to notice that such expenses have not only increased the fiscal deficit beyond estimated budget for 2009-10, only 9% Indian workforce engaged in Community, Social, and Personal services expected to be benefited through it.

Thus the excess flow of subsidized bank credits to GoI for financing deficit budget is ultimately restraining the economic growth.

Fearing for even higher fiscal deficit?

To reduce the fiscal deficit, it is simple to either cut the expenses or increase the revenues. But under present conditions, it is not possible either to increase the revenue receipts or to cut the expenditures because any increase in taxation will be disastrous at a time when recession has hit the business community and are already demanding for more stimuli to recover. When there is mounting pressure to increase the stimuli, the expenditure is suppose to increase further. Moreover the political promises (to provide subsidized foods and increase flagship programme expenses) by the new Parliamentarians before the election would also increase the plan expenditures. It all increases the possibility of any further increase in the current fiscal deficit.

What the Government should do now?

Considering the constraints to increase the revenue receipts and cut the plan expenditures to control fiscal deficit, the GoI needs to innovate new products for public finance. As almost 60% of total expenditures are made for debt servicing, GoI needs to substitute the debt receipts with equity funds. Since SEBI failed to protect the stock markets and NBFCs dealing in MFs and VCs are not in a position to mobilize huge long term investment funds, GoI needs to innovate Sovereign equities to mobilize adequate amount of non debt receipts for consolidation of public finance.

Considering the available options of capital sources in international market, there are chances to get Islamic funds instead of mere equity funds from the Muslim countries. The equity funds are somehow different from Islamic Funds in the manner that when equity funds are mixed with debt funds, it doesn't remain Islamic Funds.

Islamic Bond (Sukuk) for public finance in India:

Islamic economist Dr. Shariq Nisar in his paper 'Islamic Bonds (Sukuk): Its Introduction and Application' writes that the recent innovations in Islamic finance have changed the dynamics of the Islamic finance industry. Specially in the area of bonds and securities the use of Sukuk or Islamic securities have become increasingly popular in the last few years, both as a means of raising government finance through sovereign issues, and as a way of companies obtaining funding through the offer of corporate Sukuk. Beginning modestly in 2000 with total 3 Sukuk worth $336 millions the total number of Sukuk by the end of 2007 has reached to 244 with over US$ 75 billion funds under management. Dr. Shariq summarizes the growth of Sukuk in following table.

Year	Sukuk Size (USD million)	Number of Sukuk
1990	30.00	1
2000	336.30	3
2001	780.00	4
2002	985.83	9
2003	5717.06	36
2004	7209.53	67
2005	12033.76	89
2006	48114.82	225
2007	75538.70	244
2008	32242.16	156
Total	182988.16	834

Recent studies about Sukuk at http://online.wsj.com/ indicates that although by recently the Sukuk market has managed to come back modestly, but only for higher corporate issuers. IFIS data show that so far this year, more than $7.6 billion of Sukuk have been issued. Almost all this year's fund-raisers have been governments or government-related, the overwhelming majority from Southeast Asian countries such as Indonesia. The Middle Eastern market that drove the pre-2007 boom has also sprung into life this month with a $500 million issue for the government of Bahrain, which was boosted to $750 million because of strong demand. Thus there is no harm if GoI study the feasibility of innovating Islamic products to consolidate public finance in India.

Scope of Islamic Bond in India:

Since India houses second largest Muslim population of the world, it is expected that at least 20% Indian Muslims who are economically better off and desperately looking for real Islamic investments would grab it with enthusiasm. Unfortunately so far India has yet to launch any real Islamic bond or Mutual fund because somehow all the so called ethical mutual fund have been mixing equity funds with debts.

Moreover unofficial sources indicates that considering the higher growth rate of India, some larger Islamic banks and financial institutions like Islamic Development Bank, Dubai Islamic Bank and others desire to invest in Indian infrastructure but do not find suitable opportunities. So, we find the scope to study the prospects of Islamic Bond (Sukuk) from GoI to finance infrastructures.

Sector-wise Projected Investment for the Eleventh Plan

(Rs crore at 2006–07 prices)

Sectors	Projected investment for 11^th five year Plan
	Rs. crore	Shares (%)
1. Electricity (incl. NCE)	666,525	32.42
2. Roads and Bridges	314,152	15.28
3. Telecommunication	258,439	12.57
4. Railways (incl. MRTS)	261,808	12.73
5. Irrigation (incl. Watershed)	253,301	12.32
6. Water Supply and Sanitation	143,730	6.99
7. Ports	87,995	4.28
8. Airports	30,968	1.51
9. Storage	22,378	1.09
10. Gas	16,855	0.82
Total (Rs crore)	2,056,150	100

Data Source: http://planningcommission.nic.in/

Fiscal deficits can be reduced by the Sukuk funds:

Since returns to Sukuk holders comes from the actual returns from the project there is no chance of any interest burden on the economy. In case there is any loss in the specified project that will also be duly shared by the Sukuk holders. Thus Sukuk finance negates any possibility of interest burden on the economy and removes the chances of fiscal deficit due to interest payments on borrowed debts to finance infrastructural needs of the economy.

We have higher revenue expenditures due to higher debt servicing ratio total expenditure. The problem is also that capital expenditure is much behind the target and growth rate can't be foster if we lack infrastructure. Thus while we need to stimulate the economy, it is better to introduce Sukuk by Indian Government as it would not only help building infrastructure, increase capital expenses and stimulate the economy, but also reduce the revenue deficits, debt servicing ratio and also revenue deficits.

Financing the deficit through more of subsidized bank loans is creating problems for the banks to reduce lending rates for private sector; as a result the private sector are getting lower amount of credits at higher costs. Besides the recent global recession, this hardening credit supply is adversely affecting the growth rate of agriculture and manufacturing industry by witnessing negative growth rates in during last 6 months. Thus deficit finance is not helping majority of Indian workforce as agriculture and manufacturing collectively provide livelihood to around 63% workers. So, to ensure foster and inclusive growth by way of providing sufficient and affordable credits to private sector, the increased flow of subsidized bank loans to GoI should be reduced otherwise private sector will continue to suffer and we may not be able to attain desirable growth rate even by increasing the fiscal deficits to stimulate the economy.

Since Sukuk is bounded with religious faith, the economic rationality is secondary aspect in decision making by the investors. The top priorities for Sukuk holders are to ensure that –

1. The returns are Halal (legal according to Islamic ethics) and investments will be used for building potential infrastructures for national development, thus the investments and returns may draw tax incentives as well which may stand as compensation against lower rate of returns.

2. The investments are meant for legal share (proportionate ownership) in the infrastructure.

3. There would not be any fraud or cheating by the fund managers and the investments would not be spent for promoting unethical and unlawful activities (as prohibited by Islamic ethics).

4. The investments will be in safe hands to carefully develop the assets and not manipulate it.

5. Even if the rate of returns are low as compared to market returns on other investments, the advantage of earning Halal income, tax incentives on investments upon national infrastructure would be some compensatory advantages to the Sukuk holders.

Since all sorts of returns on Sukuk are free from interest and does not exceed to the actual asset value, whatever is paid as returns to Sukuk holders is to pay from the actual earnings from the asset created by that particular investment. There is no need to borrow any debt to pay Sukuk returns or repay the whole Shukuk funds because all the Shukuk holders collectively own the asset. They will thus proportionately gain or loose according to appreciation or decline in the value of that particular asset.

Indian Institute of Islamic Infrastructure Funds (IIIIF):

It is desirable that the GoI set an autonomous financial corporation as 'Indian Institute of Islamic Infrastructure Funds' (IIIIF) to grab the national and international market of Shariah Funds and mobilize adequate funds for the infrastructural investments in India. If IIIIF succeeds soliciting cooperation with leading Islamic investment and development banks around the world, hopefully we may not need debt based receipts for deficit finance especially to meet the infrastructural requirements in India. The services of such banks may be solicited through GoI securities with assured lease rent after completion of particular infrastructure projects. Once India manages to mobilize project based Islamic Infrastructure funds, with such funds specific borrowed debts may be repaid to reduce the debt burdens.

Based on the projection by the Planning Commission of India, the estimated requirements of infrastructure investment is Rs. 20,56,150 crores. Considering the commercial aspects of different sectors, it is expected that IIIIF may help us arrange 93% of the total requirements amounting Rs. 19,12,420 crores for 11^th five year plan's infrastructural needs. Only the investment need of water supply and sanitation amounting Rs. 1,43,730 may not be sellable otherwise infrastructure projects of all other sectors seems sellable through equity based Government securities by IIIIF upon which any specific amount as % of investment could be assured as returns in terms of lease rents after completion of the projects. IIIIF along with RBI and Ministry of Finance may design such equity based Government Securities (Sukuk). Further such securities may be traded in open market as RBI has recently framed policy for stripping and reconstitution of Government securities to enhance the trading scope of securities. However for Sukuk, there could be assured lease rent or dividend as rate of returns instead of interest.

Conclusion:

Islamic Finance in terms of Sukuk may help India raise required infrastructure investment funds for the Government and the corporate sector. It may solve the most threatening challenge of our economy by providing equity funds for infrastructure against Government Securities enabling GoI reduce its fiscal deficit after repaying borrowed debts for capital expenditures through equity funds; and also by arranging equities for the corporate sector. Wish the proposed IIIIF may reduce the fiscal deficit allowing India attain foster and inclusive growth as it carries following promising features –

1. Reduce the fiscal deficit of India even if our revenue receipts declines and we need to increase the plan capital expenditures to stimulate the economy.

2. Help India save amount up to 6% of our GDP we pay as interest over debt receipts.

3. Enable GoI to repay debt receipts borrowed for financing the infrastructure investments.

4. Provide desirable equity fund for the corporate sector at a time when external financial resources are dried up and the cost of domestic bank credits are not affordable.

5. Once GoI succeeds arranging sufficient infrastructure funds through Sukuk and repays debts borrowed for capital expenditures, it would reduce the load of public finance on domestic banks thus enable them to reduce the cost on credits specified under PSA or for private sector enterprises.

There could be many more significances of IIIIF if we resolve it without any prejudice for the sake of national interest.