7/30/2019 A Framework for Islamic Financial Institutions to Deal With Shari'Ah Non-Compliant Transactions (ISRA Paper) http://slidepdf.com/reader/full/a-framework-for-islamic-financial-institutions-to-deal-with-shariah-non-compliant 1/42 A FRAMEWORK FOR ISLAMIC FINANCIAL INSTITUTIONS TO DEAL WITH SHARÔÑAH NON- COMPLIANT TRANSACTIONS ASSOC. PROF. DR ASYRAF WAJDI DUSUKI MOHAMMAD MAHBUBI ALI LOKMANULHAKIM HUSSAIN RESEARCH PAPER (No: 42/2012)
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A Framework for Islamic Financial Institutions to Deal With Shari'Ah Non-Compliant Transactions (ISRA Paper)
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7/30/2019 A Framework for Islamic Financial Institutions to Deal With Shari'Ah Non-Compliant Transactions (ISRA Paper)
A FRAMEWORK FOR ISLAMIC FINANCIAL INSTITUTIONS TO DEAL
WITH SHARÔÑAH NON-COMPLIANT TRANSACTIONS
Assoc. Prof. Dr Asyraf Wajdi Dusuki*
Mohammad Mahbubi Ali**
Lokmanulhakim Hussain***
ABSTRACT
The concern over SharÊÑah-compliant transactions is firmly entrenched in the activities
and operations of Islamic financial institutions (IFIs). As a business entity established within the ambit of SharÊÑah, an IFI is expected to be guided by values, principles,
objectives and rulings of the SharÊÑah. However, ensuring effective SharÊÑah compliance
is not a straightforward matter. As financial markets become increasingly sophisticated,
heightened product innovations and engineering in Islamic finance entail genuine
concern over the need to strengthen SharÊÑah compliance throughout the product
life cycle. This means that, while a product may be deemed SharÊÑah compliant prior
to its launch (ex-ante), the IFI must also be cognizant of the need to ensure that the
entire ex-post process — including contract execution, utilization of funds, investment
activities, the audit and governance process — are all in place. This paper focuses on
the framework for dealing with SharÊÑah non-compliant transactions in Islamic finance.
The framework delineates the concept of illegitimate income and its sources from the
Islamic perspective in order to develop a coherent approach to dealing with diverse
non-compliance situations based on established principles of the SharÊÑah. Although it
is not expected that an IFI will deliberately involve itself in illegitimate activities, any
incident of non-compliance needs to be immediately addressed, rectified and reported.
This is not only to ensure the purity of the income earned but, more importantly, for
IFIs to put in place adequate systems and controls to ensure such that non-compliancewith SharÊÑah rules and principles can be averted.
* Assoc. Prof. Dr Asyraf Wajdi Dusuki is the Head Research Affairs at International SharÊÑah ResearchAcademy for Islamic Finance (ISRA). He is also a SharÊÑah Advisor to AIA AFG Takaful Bhd. He can becontacted at [email protected]
** Mohammad Mahbubi Ali is a Researcher at International SharÊÑah Research Academy for Islamic Finance(ISRA). He can be contacted at [email protected]
***
Lokmanulhakim Hussain is a Researcher at International SharÊÑah Research Academy for Islamic Finance(ISRA). He can be contacted at [email protected]
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Against this backdrop, this study focuses on the approach and methodology for dealing
with non-SharÊÑah compliant transactions or non-ÍalÉl income. Specifically, the paper sets out to provide answers to the following research questions:
• What is non-ÍalÉl income?
• What are the categories of non-ÍalÉl income?
• How should each category of non-ÍalÉl income be treated from a SharÊÑah
perspective?
It is hoped that, by providing the answers to these three fundamental questions, the paper can propose a framework for income purification for Islamic financial institutions
in line with the requirements set out in Bank Negara Malaysia’s SharÊÑah Governance
Framework.
Following this brief introduction, the paper is organized according to the following
structure: the next section examines the concept of illegitimate income (mÉl ÍarÉm)
from the SharÊÑah viewpoint. Various sources of illegitimate income are identified
and then organized into two major categories: ÍarÉm li dhÉtihi (prohibited due to its
essence) and ÍarÉm li ghayrihi (prohibited due to external reasons). The third sectionthen elaborates the approaches to dealing with various sources of illegitimate income.
The principle of income purification is deliberated in detail so as to construct a robust,
relevant and practical framework that can be adopted by Islamic financial institutions
in addressing various potential SharÊÑah non-compliant transactions. The fourth section
provides sample scenarios for how Islamic financial institutions could treat their tainted
income, while the final section concludes the study.
2. AN OVERVIEW OF MÓL HARÓM
2.1 The Concept of MÉl in the SharÊÑah
Literally, mÉl (wealth) is defined as everything that may be possessed by an individual
Asyraf Wajdi Dusuki, Mohammad Mahbubi Ali & Lokmanulhakim Hussain4
movable and immovable items as forms of mÉl (HawÉwinÊ, n.d, 31). The ×anafÊ School,
however, excludes usufruct (manfaÑah) from its definition of mÉl as it cannot be stored.
Al-ShÉÏibÊ of the MÉliki School defines mÉl as anything that can be owned and
controlled exclusively by the owner and acquired by legitimate means (al-ShÉÏibÊ, 1997,
2:17). The MÉlikÊ definition of mÉl stipulates two criteria: first, it can be exclusively
possessed. Hence, everything that cannot be owned, such as a bird in the sky, cannot be
deemed mÉl . In contrast to the ×anafÊ view, the MÉlikÊ view recognizes usufruct as mÉl
since it can be owned. Second, the method by which the wealth is acquired should be
legitimate from the SharÊÑah perspective.
The ShÉfiÑÊ School defines mÉl as something of value that is exchangeable (al-ShÉfiÑÊ,
1990, 171). Al-BahËtÊ of the ×anbalÊ School reiterates Ibn al-NajjÉr’s definition of
mÉl as anything permissible to take benefit from and acquire. This definition excludes
items of no benefit or whose benefit is prohibited, such as alcohol (al-BahËtÊ, 1993,
2:7). Based on their definitions, the ShÉfiÑÊ and ×anbalÊ Schools argue that a Muslim
who spilled a person’s alcohol cannot be held liable for the value of the wine as it is
not recognized as mÉl and has no value from an Islamic point of view (al-QazwÊnÊ, n.d,
11:258; Ibn QudÉmah, n.d, 5:222-223). While the MÉlikÊ and ×anafÊ Schools agree
with the ShÉfiÑÊ and ×anbalÊ Schools that alcohol cannot be considered wealth for Muslims, they recognize that it does have value for non-Muslims; hence, a Muslim is
held liable if he spills alcohol belonging to a non-Muslim (al-QarÉfÊ, 1994, 8:277-278;
al-SarakhsÊ, 1993, 11:103).
Based on the various definitions given, there are two areas of controversy in defining
mÉl : 1) the majority of jurists include usufruct in the definition of mÉl while the ×anafÊs
exclude it; 2) there is disagreement whether items prohibited by the SharÊÑah, but which
non-Muslims recognize as having economic value, are subject to indemnification if
damaged or destroyed.
2.2 The Concept of MÉl ×arÉm
Al-GhazÉlÊ defined mÉl ÍarÉm as any property acquired by illegal means, such as
theft, ribÉ , hoarding, gambling, etc. (al-BÉz, 2004, 39). Some contemporary scholars
have defined mÉl ÍarÉm as anything that the SharÊÑah has prohibited a Muslim from
appropriating due to a preventive factor (al-BÉz, 2004, 39). Other scholars have defined
it as wealth that the SharÊÑah has prohibited the holder from utilizing in any way (Yasin,
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1414AH). These definitions, thus, differ regarding the locus of the prohibition: Is it
utilization or appropriation?
Jurists categorized mÉl ÍarÉm into two major types: First, what is prohibited in it
essence (li-dhÉtihÊ) and second, what is prohibited due to external reasons (li-ghayrihi)
(al-BÉz, 2004, 39).
2.2.1 Prohibited in Essence (×arÉm li DhÉtihi)
Muslim jurists considered certain items to be prohibited in themselves if the prohibition
is due to their essence and nature. These include pork, wine and other impure items(al-SarakhsÊ, 1993, 11:102-103; Ibn Rushd, 1425/2004, 3:52; Ibn Rushd, 1408/1988,
18:492; al-NawÉwÊ, n.d, 6:37, 14:283-284; Ibn QudÉmah, 1388/1968, 9:162). Indeed,
the majority of jurists do not consider such items to be mÉl at all.
2.2.2 Prohibited Due to External Reasons (×arÉm li Ghayrihi)
Another type of mÉl ÍarÉm consists of items that are permitted in their essence (aÎl )
but become prohibited due to external reasons or an auxiliary attribute (waÎf ). For
instance, accumulating wealth is basically permissible, but if the method by which it is
accumulated is illegitimate, the wealth is non-ÍalÉl (Ibn ÑÓbidÊn, n.d, 2:292; al-QarÉfÊ,
n.d, 4:108; al-NawÉwÊ, n.d, 12:116; Ibn Taymiyyah, 1408/1987, 4:210). For example,
trading is permissible, but it is prohibited during the hour of JumuÑah prayers so any
profits are illegitimate. Similarly, paper money in its essence is permissible, but if it is
acquired from bribery or ribÉ , the way it was earned changes the status of the money
to unlawful.
2.3. Sources of Impermissible (Non- ×alÉl ) Income
The preceding discussion explored the fundamental concept of mÉl and mÉl ÍarÉm.
Essentially, income-generating or wealth-accumulation activities that involve money do
not invoke the issue of ÍarÉm li dhÉtihi since money in its essence (Ñayn) is permissible.
However, a particular sum of money may be deemed impermissible if it is derived
from ÍarÉm sources. As previously explained, this is known as ÍarÉm li ghayrihi. The
following discussion will shed further light on the possible sources of impermissible
income (mÉl ÍarÉm, hereafter referred to as non-ÍalÉl income) due to external reasons.
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In general, there are two external factors that make income non-ÍalÉl (al-BÉz, 2004):
(1) The income is acquired without the consent (bi ghayr riÌÉ ) of the legal owner.
Examples are income realized through theft ( sariqah), usurpation ( ghaÎb)
and deception.
(2) The income is earned with the consent of the owner by a transaction that is
not approved by the SharÊÑah. In this regard, Ibn Taymiyyah further divided
this category into two possible scenarios; (i) non-ÍalÉl income possessed
through nominate contracts; and (ii) non-ÍalÉl income earned without having
any specific contractual forms, such as income from rashwah (bribery),
maysir (gambling), gifts to employees while executing their duties, etc.
(Ibn Taymiyyah, 2005, 593-594). While income earned without a specific
underlying contract is clear and easily understandable, the following
discussion will delineate non-ÍalÉl income sources through specific nominate
contracts.
2.3.1 Validity of the Contract
In an Islamic transaction, validity of the contract is important in determining whether a transaction can be considered permissible or impermissible. A valid contract from an
Islamic viewpoint is one in which all the essential pillars and conditions of the contract
are fulfilled. This provides a parameter for determining the status of income derived
from any transaction conducted.
According to the majority of jurists, there are only two possible rulings on the status
of a contract: valid ( ÎaÍÊÍ) and invalid ( ghayr ÎaÍÊÍ), and this latter category has other
names (bÉÏil and fÉsid ) which can be used interchangeably for it (Zuhaily, 2004). ØaÍÊÍ
is a contract that is good in its essence (aÎl ) and lawful in its external attributes (waÎ f )(al-RËmi, 2004, 1:75). It is a contract in which all the essential elements (arkÉn)—
such as the contracting parties, subject matter, and offer and acceptance—and all the
underlying conditions are fulfilled (al-MinyÉwÊ, 2010, 1:34).
For instance, fulfillment of all the contractual pillars that would make a sale contract
valid would include the following: the parties to the contract are legally eligible to
undertake contracts; i.e., they are sane, of the age of majority and of sensible conduct;
the offer and acceptance are clear and made at the same session (majlis al-Ñaqd ), either
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actually or in a form recognized as such by the law; the acceptance is in conformity
with the offer; the offer remains effective until the issuance of the acceptance; theasset is completely owned by the seller; it has value (mutaqawwam) and is deliverable
(qudrah ÑalÉ taslÊm).
From a SharÊÑah point of view, a valid contract establishes all the legal implications
that the SharÊÑah has assigned to a contract of that type (al-Namlah, 1999, 1:412). For
example, the buyer attains the exclusive right to possess and utilize the asset while the
seller becomes entitled to the consideration. All income generated from this class of
contract is deemed legal (ÍalÉl ), and the contract becomes effective (nÉfidh) upon its
execution. The majority of jurists hold the view that the effectiveness of a valid contract( ÎaÍÊÍ) may be suspended until the occurrence of a future event. In contrast, the ShÉfiÑÊ
School and some ×anbalÊ jurists hold that a valid contract must become immediately
effective upon its execution (Ayyub, 2007, 118).
On the other hand, a contract that is invalid ( ghayr ÎaÍÊÍ) is one that violates the
pillars and SharÊÑah conditions of the contract (al-ShawkÉni, n.d, 539). The following
are examples of factors that render a contract invalid: the sold asset is an impure
or prohibited commodity such as blood, pork, wine, a carcass; the asset is not fully
possessed by the seller or is undeliverable; there is excessive uncertainty in the deliverydate or price; or the contract is performed by parties without legal eligibility to execute
contracts; i.e., one of the parties is insane, immature or not of sensible conduct. From
the SharÊÑah point of view, an invalid contract does not produce the legal effects of
that contract. There is no exchange of financial rights and responsibilities due to it; the
buyer does not have any right to dispose of the asset, while the seller cannot possess the
income realized. Such a contract must be properly re-executed, starting from scratch.
The majority of jurists do not distinguish between bÉÏil (void) and fÉsid (irregular)
except in certain non-financial issues such as ×ajj (pilgrimage), marriage and khuluÑ(Ibn QudÉmah, 2002, 1:183). With regard to financial transactions, both terms are the
opposite of ÎaÍÊÍ, having a single legal implication (al-Ramli, n.d, 25), and are often
used interchangeably. Al-JazÊrÊ stated:
� � � .....
.
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“ FÉsid and bÉÏil share a single meaning in relation to sale contracts;
everything that is fÉsid is bÉÏil , and vice versa; i.e., one of the conditionsor pillars is breached…. FÉsid sales are all interdicted, and it is incumbent
upon people to avoid them” (al-Jaziri, 2003, 3:224-225).
The ×anafÊ School took a different position from the majority of classical jurists.
They classified contracts into three categories: ÎaÍÊÍ (valid), fÉsid (irregular) and bÉÏil
(void), and considered bÉÏil and fÉsid to be different in substance and ruling. FÉsid ,
according to the ×anafÊ School, is an intermediary class of contract between ÎaÍÊÍ
and bÉÏil (al-BukhÉrÊ, 1997, 1:379-380). The ×anafÊ position is premised upon the fact
that the defect in a defective contract is due either to a fundamental element (aÎl ) or an
accessory attribute (waÎf ). The ×anafÊ School agreed with the majority that a defect in a
contract’s fundamental element (aÎl ) renders the contract void (bÉÏil ) and that it cannot
be rectified. However, a defect in an external factor (waÎf ) will only make the contract
irregular ( fÉsid ) (al-BukhÉrÊ, 1997, 1:380). It does not necessarily render it void (bÉÏil ).
According to AbË ×anÊfah, a sale contract has four fundamental pillars: the two
contracting parties and the two counter-values. If the four pillars are satisfied and free
from any SharÊÑah prohibition, then the contract is valid. In contrast, if the contract is
defective in any of its fundamental pillars, it is void (bÉÏil ). However, if the defect is due
to external factors attached to the pillars, the contract is irregular ( fÉsid ). The following
are scenarios that elucidate the ×anafÊ view regarding the differences between ÎaÍÊÍ,
bÉÏil , and fÉsid (al-QarÉfÊ, n.d, 2:83):
(1) An insane person sells pork for a payment of wine to another insane person.
In this case, all the fundamental pillars are defective and, hence, the contract
is void (bÉÏil ).
(2) A legally competent person sells clothes for a payment of pork to another legally competent person. In this case, one of the fundamental elements
(pork) is defective, which renders the contract void (bÉÏil ).
(3) A legally competent person sells one gram of silver in exchange for another
gram of silver to another legally competent person. In this case all the pillars
of the contract are sound and, hence, the contract is valid.
(4) Based on Scenario No. 3 above, assuming that one gram of silver is exchanged
for two grams of silver, the contract is defective due to the existence of an
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external factor, i.e., an increment ( ziyÉdah). Since the defect is not in its pillars
or fundamental elements (aÎl ), the contract is irregular ( fÉsid ) but rectifiable.Once the increment is removed, the contract becomes valid
Since the ×anafÊ School agrees with the majority regarding the definition and legal
implications of a ÎaÍÊÍ contract, the following discussion will further examine the
×anafÊ conceptualization of bÉÏil and fÉsid .
2.3.2 BÉÏil Contracts
According to the ×anafÊ School, bÉÏil is a contract that is invalid due to a defect in any of the essential elements (pillars) of the contract (al-KÉsÉnÊ, 1986, 5:305). The following
are examples of such defects: if the contract involves impure or prohibited items as the
subject matter; the subject matter has no value from the SharÊÑah perspective; the asset
is not fully owned by the seller; the acceptance is not in conformity with the offer; the
contracting parties have not reached the age of maturity; the contract contains fraud,
deceit, etc.
The ×anafÊs and other schools identified some particular forms of bÉÏil contracts, which
include (Zuhaily, 2004, 5: 3398-3431):
(1) Selling impure items. All the schools stated that sales of pork, wine, carcasses
or blood are void because these items are not considered to have value
(mutaqawwam) from an Islamic perspective.
(2) BayÑ gharar ; i.e., a sale contract that contain excessive uncertainty, which will
lead to probable loss to one of the contracting parties and, thus, to disputes.
Jurists unanimously agreed that bayÑ gharar is invalid. Some prominent
forms of bayÑ gharar are:
(a) Selling something nonexistent at the time of the contract, such as sale
of fruit before it begins to ripen, sale of sperm or a fetus, and sale of
the offspring of a fetus. Technically speaking, some of these items
may be existent at the time of the contract; however, they do not
have economic value at the time of the sale; their value is only
realized at some future date.
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×anafÊ jurists identified various factors leading to a fÉsid contract, as highlighted below:
(1) A problem with the deliverability of the asset. As mentioned earlier, if an asset cannot be delivered because the seller does not possess it, all the
madhhabs agree that the contract is void (bÉÏil ) (MahmËd, 2000, 8:147). In
other cases, the seller owns the asset, but its delivery will cause him harm; for
example, selling wood from the roof of his dwelling. ×anafÊ jurists consider
such contracts to be irregular ( fÉsid ) because a contract does not justify harm
(WizÉrat al-AwqÉf wa al-Shu’Ën al-IslÉmiyyah, 1404-1427AH, 12:60).
(2) Ignorance ( jahÉlah); i.e., insufficient information. The jahÉlah may exist
with regard to four matters:
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renders the contract void (bÉÏil ) because it nullifies freedom of choice
(ikhtiyÉr ) and consent (riÌÉ ). Duress that is ghayr mulji’ entails a lower levelof harm than the former; for example, threat of imprisonment or a comparable
or lesser harm. In this case, according to the ×anafÊ School, the contract is
fÉsid because it does not totally annul freedom of choice; rather, it nullifies
consent (riÌÉ ). From a fiqh perspective, consent is not a contract pillar, rather
it is a condition for the validity of a contract (WizÉrat al-AwqÉf wa al-Shu’Ën
al-IslÉmiyyah, 1404-1427AH, 9:101).
(5) The existence of an element of ribÉ . The majority of jurists consider the
existence of ribÉ to invalidate the contract (make it bÉÏil ). However, the×anafÊ School holds that ribÉ does not make a contract void (bÉÏil ); rather,
it makes it irregular ( fÉsid ) and, hence, rectifiable (WizÉrat al-AwqÉf wa al-
Shu’Ën al-IslÉmiyyah, 1404-1427AH, 9:101).
Unlike a bÉÏil contract, the income from a fÉsid contract is not irretrievably illegal; it
is irregular but rectifiable. Once the intolerable elements are eliminated, the contract
becomes ÎaÍÊÍ; thus, the income becomes legal (ÍalÉl ).
Interestingly, while the ×anafÊ School clearly differentiates between bÉÏil and fÉsid
in financial contracts, they do not distinguish between them in other areas, such as
in marriage contracts and acts of devotional worship. It is stated in al-AshbÉh wa al-
NaÐÉ’ir :
� � “In our view, bÉÏil and fÉsid are synonymous with regard to acts of
devotional worship and marriage contracts” (Ibn Nujaim, 1999, 401).
Indeed, the ×anafÊ approach to invalid contracts in financial transactions is not limited
to them. It is also supported by some MÉlikÊ and ShÉfiÑÊ jurists. Al-QarÉfÊ, of the MÉlikÊ
School, acknowledged that the ×anafÊ approach is sound (al-QarÉfÊ, n.d, 2:83). Some
ShÉfiÑÊ scholars also differentiate between fÉsid and bÉÏil in certain contracts such as
wakÉlah, iÑÉrah, and ijÉrah. Some even follow the ×anafÊ view regarding all types of
contracts (al-Ramli, n.d, 25). Contemporary fiqh scholars have generally adopted the
×anafÊ view. Therefore, this paper has employed the ×anafÊ categorization of invalid
contracts as the approach to designing the income purification framework for Islamic
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financial institutions. The authors view the ×anafÊ differentiation between bÉÏil and
fÉsid to be more practical and relevant to the current context and the needs of market players. There are a number of reasons for that judgement:
First, practically speaking, not every contractual defect is serious enough to warrant
re-execution. Some defects are minor and can easily be rectified by removing the
objectionable elements. Second, in the current context, re-execution of contracts creates
practical complexity as institutions tend to use boilerplate contracts to undertake the
same basic type of transaction with thousand of clients, and some contracts involve
cross-border transactions. Adopting the majority view will undoubtedly impose
hardship and difficulty on the market. Thirdly, the ×anafÊ categorization provides moreoptions to the market players to apply the Islamic law of contract in modern financial
operations.
Exhibit 1 depicts the summary of the discussion so far pertaining to the sources of
impermissible income. It is pertinent to be clear about the sources of impermissible
income before developing a holistic income-purification framework for Islamic
financial institutions. The following subsection shall delineate the approaches and
mechanisms for dealing with various sources of impermissible income as discussed
above
Exhibit 1: Potential Sources of Impermissible Income.
MÉl ×arÉm
(Prohibited
Income)
Li DhÉtihi
Li Ghayrihi
RiÌa (Consent)
'Adam Rida
(No Consent)
Non-Contract
Contract
Batil
(Void)
FÉsid
(Irregular)
Mahal aqd
(Subject Matter)
Khalal fi arkan
(Defect in Other Pillars)
Tas-hih
(Rectifiable)
No Tas-hih
(Cannot be rectified)
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Nevertheless, if the original owner is a non-Muslim, the recipient may return these items
to him, as these are recognized as property in the hand of a non-Muslim, according tothe MÉlikÊ and ×anafÊ viewpoint. However, generating income or accumulating wealth
through ownership or transacting items of this category of prohibition is completely
prohibited from the SharÊÑah viewpoint.
3.1.2 Non-×alÉl Income Derived from Elements Prohibited Due to
External Reasons (×arÉm li Ghayrihi)
Within this category, there are two possible scenarios: the prohibited income is derived
either with or without the original owner’s consent. The treatment of income for each
of these two scenarios shall be discussed in brief.
3.1.2.1 Non-×alÉl Income Acquired without the Owner’s Consent
(bi Ghayr RiÌÉ)
This type of prohibited income is realized without prior consent from the legal owner,
such as income derived from robbery, theft, etc. In this case, the income must be purified
by returning it to the owner. The obligation to return the income back to the original
owner is justified by a ÍadÊth in which RasulullÉh (peace be upon him) said:
�
“Whoever oppresses his brother with regard to his honor or any other
matter should seek his forgiveness today, before [repayment] is no longer
in dinars or dirhams” (BukhÉrÊ, 1422H, 3:129).
Obviously, a thief who asks his victim for forgiveness without returning what he stole
from him has slim chance of receiving it.
It is also premised upon another ÍadÊth:
“The hand (i.e., person) is liable for what it took until it returns it” (al-
TirmidhÊ, 1975, 3:558).
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This ÍadÊth is referred to in discussions of liability for a borrowed object; however, the
generality of its wording makes it relevant to the issue of income generated withoutthe consent of the original owner. Imam al-BayhaqÊ in MaÑrifat al-Sunan wa al-ÓthÉr
mentioned it when discussing the issue of a thief’s liability to indemnify the stolen asset
(al-BayhaqÊ, 1425AH, 12:422). Jurists unanimously agreed that any asset acquired
without the owner’s consent must be given back to the owner. Ibn QudÉmah says:
“Whoever usurps something is obliged to return it as long as it remains
[existent]. We know of no disagreement [on this ruling]” (Ibn QudÉmah,1388AH, 5:177).
3.1.2.2 Non-×alÉl Income Acquired with the Owner’s Consent
As indicated in the previous section, the non-ÍalÉl income acquired with the consent of
the owner may be realized through either a nominate contract or a non-specific form of
contract. The following discussion delineates the treatment of each scenario.
3.1.2.2.1 Consent via a Nominate Contract
The ×anafÊ’s categorization of invalid contracts as bÉÏil or fÉsid is employed to deal
with this type of income. Each type of invalid contract has a different treatment.
3.1.2.2.1.1 Treatment of a BÉÏil Contract
As mentioned earlier, the SharÊÑah does not consider a void contract to be existent.
Therefore, the transaction does not have any legal effects or implications. Hence, any
income derived from this type of contract is unlawful and must be purified. A void
sale contract, for example, does not cause any transfer of ownership. The seller should
therefore refund the price while the buyer has to return the “purchased asset”. The
MÉlikÊ jurist Ibn Rushd states:
- � - � �
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The first way is to eliminate objectionable elements that render the contract fÉsid . If
such elements are eliminated, the contract becomes valid. This is based on the ×anafÊlegal maxim:
. “When the impediment disappears while the reason for the ruling is
present, the [original] ruling returns” (WizÉrat al-AwqÉf wa al-Shu’Ën al-
IslÉmiyyah, 1404-1427AH, 12:60).
The following are examples of objectionable elements, mentioned in the previoussection, whose elimination may rectify their contracts (WizÉrat al-AwqÉf wa al-Shu’Ën
al-IslÉmiyyah, 1404-1427AH, 9:100, 9:101, 12:59):
(1) Delivery of the asset would cause harm to the seller, such as selling the
wood of his roof. ×anafÊ jurists consider such a contract irregular ( fÉsid ). If,
however, the seller chooses to remove the wood and delivers it to the buyer
before the contract is revoked, the contract becomes valid.
(2) Insufficient information about the asset, the price, or the time of delivery. Inthis case, according to ×anafÊ jurists, the contract is deemed fÉsid and may be
rectified by providing the missing information. The parties must specify the
asset to be transacted and determine the type of payment to be applied, either
spot or deferred. Insufficient information about the time of delivery can be
rectified by specifying the time.
(3) The existence of an invalid condition. The contract can be rectified by
removing the objectionable invalid conditions.
(4) The existence of the lesser level of duress (ikrÉh ghayr mulji’ ), such as a
threat of imprisonment. In this case, the contract is fÉsid but, according to the
×anafÊs, it can be rectified if the party under duress expresses his consent to it
after the duress has been removed. In contrast, if the party under duress does
not express his consent, the contract becomes void.
(5) The existence of a ribÉ element. In this case, the contract may be rectified
by removing the stipulation of ribÉ from the contract or by returning the ribÉ
element to the original owner.
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The second method of rectification is to change the fÉsid contract into another suitable
nominate contract that makes the contract valid. This is accomplished by looking into thesubstance and essence of the transaction. ×anafÊ jurists have discussed many examples
of this process (WizÉrat al-AwqÉf wa al-Shu’Ën al-IslÉmiyyah, 1404-1427AH,12:61-
62). They include:
(1) A kafÉlah (guarantee) contract with the condition that the aÎÊl (debtor) shall
be free from any liability. The contract is fÉsid because this condition conflicts
with the nature and legal effects of kafÉlah. However, it can be rectified by
shifting the contract into ÍawÉlah (debt transfer) with all its rulings and legal
consequences. Once the contract is shifted to ÍawÉlah, the contract will bevalid.
(2) Shirkah mufÉwaÌah. It is required that each partner in this kind of partnership
provide equal contributions in the form of capital, work and liability. If the
contract of partnership is established using shirkah mufÉwaÌah but the
contributions are not equal, the contract is fÉsid , but it may be rectified
by turning the contract into shirkah ÑinÉn with all its legal rulings and
implications.
(3) MuÌÉrabah contract. The original ruling of a muÌÉrabah contract is that the
muÌÉrib is a trustee and is not held liable for any financial loss unless he
violates the agreed conditions or is negligent. Any profit is shared between
the muÌÉrib and the capital provider based on the profit-sharing ratio agreed
up-front. However, if it is stipulated in the contract that all profit belongs
to the muÌÉrib and is not to be shared with the rabb al-mÉl , the condition
makes the contract fÉsid . It may be rectified by turning the contract into qarÌ
with all the rulings and conditions of a loan. The reason is that, from a fiqh
perspective, a person has an exclusive right to get the entire profit if he is theowner of the capital. Therefore, when a muÌÉrib stipulates a condition that all
profit belongs to him, the implication of his condition is that he is the owner
of the capital. That means that he must treat the capital of the rabb al-mÉl as
a loan to be repaid in kind (qarÌ ).
(4) WadÊÑah, too, is a trust-based contract. A custodian is not entitled to utilize
the deposit in any way and is not held liable for any loss or damage except
in case of negligence or misconduct. However, if the custodian stipulates the
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right to utilize or invest the deposit, the wadÊÑah contract becomes fÉsid . Like
muÌÉrabah, it can be rectified by recognizing that the transaction with thiscondition is in fact a qarÌ (loan to be repaid in kind). As a consequence, the
custodian is required to guarantee the sum of the deposit and indemnify it in
case of loss or damage.
It can be concluded that fÉsid factors do not necessarily nullify the contract in which
they appear. Since they do not, it is not required to completely re-execute the contract.
Rather, once the intolerable elements are corrected, the contract will then be valid.
However, if the objectionable elements persist and the contract is not shifted to another
contract that makes it valid, the contract becomes void, and all income generated andassets received must be returned to their original owner.
3.1.2.2.2 Existence of Consent without a Nominate Contract
There are instances in which illegal income is derived with the consent of the owner
from a transaction without using a specific nominate contract; for example, the income
generated from gambling (maysir ), bribery (rishwah), gifts to officeholders, etc. (Ibn
Taymiyyah, 2005, 28:593-594).
Jurists have different opinions with regard to the treatment of such income. Some
scholars held that the income derived by illegal means with the consent of the owner
must be returned to the original owner. This was the view of the ×anbalÊ and the ShÉfiÑÊ
Schools in their authentic opinion, based on qiyÉs (analogy) with an invalid contract
(Ibn Taymiyyah, 1995, 28:593-594). Under this view, one who receives a non-ÍalÉl gift
(rishwah) must return it to the donor (al-MÉwardÊ, n.d, 128; al-MardÉwÊ, n.d, 11:212).
Other scholars are of the view that the income should neither be returned to the original
owner nor be possessed (al-BalkhÊ, 1310AH, 3:236). It cannot be returned to the owner to avoid any form of assistance in committing sins (iÑÉnah ÑalÉ maÑÎiyah). Likewise,
the asset cannot be possessed by the recipient because a prohibited action cannot
legally justify transfer of ownership (al-BÉz, 2004, 351). Therefore, the income should
be channeled to the Bayt al-MÉl (the Public Treasury). This view was upheld by the
×anafÊ and MÉlikÊ Schools, and there is a narration attributing the same view to ImÉm
AÍmad ibn ×anbal. It is supported by the ÍadÊth of Ibn Lutbiyyah (al-BÉz, 2004, 245):
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Exhibit 2 is a diagram that summarizes the proposed framework for Islamic financial
institutions to treat their non-ÍalÉl income based on the various scenarios mentioned inthe discussion above. The corresponding Table 1 below also provides brief descriptions
of the different treatments on income purification from various possible scenarios.
Exhibit 2: Framework of Income Purification
MÉl ×arÉm(Prohibited
Income)
Li DhÉtihi
Li Ghayrihi
RiÌa (Consent)
'Adam Rida
(No Consent)
Non-Contract
Contract
Batil
(Void)
FÉsid
(Irregular)
Mahal aqd
(Subject Matter)
Khalal fi arkan
(Defect in
Other Pillars)
Tas-hih
(Rectifiable)
No Tas-hih
(Cannot be
rectified)
Destroyed
Charity
Owner
No
Purification
Destroyed
Owner
(Shafie &
Hambali)
Charity
(Maliki &
Hanafi)
Owner
Source of Non- ×alÉl Income Purification
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Table 1: Treatment of Non- ×alÉl Income
NoTypes of Non- ×alÉl
IncomeTreatments
1. ×arÉm li dhÉtihi The items must be disposed of (itlÉf ).
2. Without owner consent 1. Returned to the original owner
2. Channeled to Bayt al-MÉl if the owner isunknown
3. With owner consent by a bÉÏil contract
All income must be returned to the original owner (buyer) if the invalidity of the contract is caused bya defect in the pillars or conditions of validity.
All income must be channelled to charity if thecontracted asset is prohibited in its substance bythe SharÊÑah.
4. With owner consent by a fÉsid contract
All income generated is legal (ÍalÉl ) if theobjectionable elements are rectified, either byelimination of such elements or by turning thecontract into another contract.
All income must be returned to the original owner
if the objectionable elements persist or the contractis not turned into another contract.
5. With owner consent butnot contracted
1. MÉlikÊs and ×anafÊs - Channeled to charity
2. ShÉfiÑÊs and ×anbalÊs - Returned to the owner
Source: Authors’ Own
3.2 Principles of Income Purification
Jurists are of the view that a person cannot benefit from income derived by illegalmeans. Allah said:
�
“O you who believe, do not consume one another’s wealth wrongfully;
rather, let there be trade by mutual consent” (al-Qur’Én, 4:29).
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Commenting on this verse, AbË JaÑfar al-ÙabarÊ stated that no one is allowed to consume
the property of another by a means prohibited by the Lawgiver; for example, incomegained from a ribÉ -based transaction or gambling-based activities (al-ÙabarÊ, 2000,
8:206). Therefore, any non-ÍalÉl income should be purified.
� :
MaÑmar asked al-ZuhrÊ about one who obtains illegal property. Al-ZuhrÊ
said: “If he wants to be absolved of it, he should get rid of it” (Ibn AbÊ
Shaybah, 5:380-381).
Al-SubkÊ provided a general guideline on how to purify non-ÍalÉl income. If a person
knows the original owner, he must return it to him or his representative (wakÊl ). If
the owner dies, he must give it to the owner’s heirs. If the owner is unknown and it
is impossible to find him, the wealth is channeled to the benefit of Muslims (maÎÉliÍ
ÑÉmmah). If not, it should be donated to the poor (al-NawawÊ/al-SubkÊ, n.d, 9:351).
Al-SubkÊ’s view on channeling the illegitimate property or income for public benefit
is supported by the majority of jurists. This was clearly mentioned by Ibn Taymiyyah:
....
.If property was taken without right and cannot be returned to its rightful
owners, as is the case with most of the rulers’ properties, then helping to
channel such property for the benefits of Muslims at large—for instance
construction of fortresses for defense of the frontiers, living expenses of
soldiers, etc.—is consider assistance in good deeds and piety....This is the
majority view amongst the jurists; for example, MÉlik, AbË ×anÊfah and
AÍmad. It was also narrated from some of the ØaÍÉbah and is supported by
the SharÊÑah evidence (Ibn Taymiyyah, 1418AH).
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In Islam, the income that requires purification is only that which clearly originated
from non-ÍalÉl activities. An example is the income derived from an interest-basedinvestment. In this case, the amount that needs to be purified is the interest only. A
person still has a right to hold and benefit from the principal. This is the clear indication
of the relevant verse of SËrah al-Baqarah:
� “And if you repent, then you shall have your principal [without interest].
Wrong not, and you shall not be wronged” (al-Qur’Én, 2:279).
This verse indicates that a person who wants to repent from committing ribÉ is entitled
to get back his principal; no more and no less (al-JawzÊ, n.d, 3:257). In line with this
verse, Ibn Taymiyyah stated that a person who holds a mixture of ÍalÉl and non-ÍalÉl
income must purify the non-ÍalÉl portion only while the remainder is deemed ÍalÉl :
� “Whoever has mixed ÍarÉm wealth with ÍalÉl wealth should remove
the ÍarÉm portion; the rest is lawful for him” (Ibn Taymiyyah, 2005,
5:74).
Ibn Taymiyyah’s opinion is supported by his student, Ibn Qayyim al-JawzÊ:
�
If a person mixed his property with one or more ÍarÉm dirhams, let him
remove the ÍarÉm portion, and the remaining balance will be ÍalÉl for
him, without any reprehensibility. This is whether the dirham removed
is the particular dirham earned from ÍarÉm or its equivalent because the
prohibition is not associated with the substance of the dirham but, rather,
the method by which it was earned (al-JawzÊ, n.d, 3:257).
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If the level of non-ÍalÉl is not precisely known, then ijtihÉd (exercise of personal
judgement) is necessary in order to measure and remove the portion that is not ÍalÉl .
“If someone knows that [his property] includes some ÍarÉm wealth, but he
is unsure of the amount, he should remove the ÍarÉm part by his ijtihÉd ”
(al-Nawawi/al-SubkÊ, n.d, 9:428).
Based on discussion above, it is clear that any income generated by illegal means must
be purified. However, it is important to note that the existence of non-ÍalÉl income doesnot affect the ÍalÉl portion. Table 2 below summarizes various scenarios of income
purification:
Table 2: Treatment of Income Purification
Scenarios Treatment1. All income is non-ÍalÉl (i.e., accumulated from
transactions involving substances that are impure
or prohibited).
All income must be purified.
2. Mixed income (some of the income is ÍarÉm
and the rest is ÍalÉl , e.g., investing in mixed
companies)
Only the non-ÍalÉl portion needs
to be purified.
3. The principal is ÍalÉl, but the profit is non-ÍalÉl
(i.e., interest-based activities)
Only the profit portion must be
purified.
4. Mixture of ÍalÉl and non-ÍalÉl profit (e.g.,
dividends from mixed companies)
Only the non-ÍalÉl profit must be
purified.
5. The principal and profit is ÍalÉl, but the profit
exceeds the actual cost (i.e., the late payment
charge exceeds the actual cost )
Only the excess amount must be
purified.
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of an IFI’s behavior including product structuring, documentation, contract execution,
system control, internal relations, dealings with customers and other organizations, policies and procedures, business practices through dress, décor, image, etc. The income
purification framework discussed here is also an integral part of the taqwÉ paradigm.
Overall the framework presented here may benefit the practitioners of Islamic financial
institutions, and even Muslim entrepreneurs in general, who need specific guidance to
improve their exercise of SharÊÑah-compliant practice and governance. The discussion
on the diverse approaches to income purification not only provides adequate guidance
to IFIs, who must decide which courses to take and how much to commit to them,
but more importantly, assists them in constructing a robust SharÊÑah-risk-managementframework to prevent noncompliant transactions from actually happening. It is crucial
that potential SharÊÑah noncompliance exposure be understood and efficiently managed
to ensure that IFIs continue providing Islamic financial services to their clients in a safe
and sound manner.
Such a framework can, therefore, be instrumental in enhancing stakeholders’ trust
and confidence in the operations of IFIs. It is now commonly acknowledged that the
consequences of a weak SharÊÑah governance and compliance process are not only
financial but also legal and reputational and can impact the economy as a whole.Hence, sound SharÊÑah governance and compliance practices have become essential
for the efficient, viable and sustainable growth of Islamic financial institutions. The
fact that Islamic finance has become an integral part of the financial system in many
countries means that the soundness of its operations is essential to maintaining the
overall robustness of those economies.
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APPENDIX
Illustration
Rectification of a FÉsid MuÌÉrabah Contract
MuÌÉrabah is a partnership contract in which one party (rabb al-mÉl ) provides capital
and another party (muÌÉrib) provides managerial skills. Profit, if any, will be shared
according to a ratio agreed up-front while any financial loss will be borne by the capital
provider. It is a trust-based contract, meaning the muÌÉrib is not held liable to guarantee
the capital or the profit.
Let us assume that a capital provider stipulates a condition in the agreement that the
muÌÉrib must guarantee the capital. According to the ×anafÊ School, the condition
will make the contract fÉsid because it will provide a benefit to only one party at the
expense of the other. From the SharÊÑah point of view, any benefit created at the expense
of another party is called ‘ribÉ ’. However, a fÉsid contract does not necessarily require
re-execution. ×anafÊ jurists held that it can be rectified. In this case, two forms of
rectification may be employed:
1.
Eliminating the guarantee clause. Once this objectionable element is eliminated,the contract becomes valid. The ruling of muÌÉrabah then re-emerges: themuÌÉrib is not held liable for any loss in the capital, and the profit is shared
based on the agreed ratio.
2. Turning the muÌÉrabah contract into a qarÌ (loan to be repaid in kind) with allits rulings and legal implications. In this case, the muÌÉrib becomes a debtor tothe rabb al-mÉl . He is liable for the capital under any circumstance. However,as a consequence of the loan contract, any profit generated from the capital will
belong exclusively to the muÌÉrib, who will also bear any financial loss.
Notwithstanding the above, if the guarantee clause is maintained and the contractclauses do not acknowledge that the transaction is a loan; i.e., the muÌÉrib is required
to guarantee the capital and at the same time the rabb al-mÉl stipulates a condition to
still enjoy a portion of the profit, then the contract remains invalid ( ghayr ÎaÍÊÍ). Once
the contract is void, a proper re-execution should be undertaken if the parties want to
continue the transaction.
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