THE NEED FOR REGULATION OF SHARI’A ADVISORY IN ISLAMIC FINANCE

ISSUES & CHALLENGES

PROFESSOR HUMAYON DARCHAIRMAN, EDBIZ CONSULTING

• What is Shari’a advisory?• Its need• Regulatory approaches to Shari’a advisory• Preferred approach• Shari’a advisory in Kazakhstan• Conclusions

Introduction

According to Chancellor Guide to Legal and Shari’a Aspects of Islamic Finance (2009)

“[It is] the overall process through which interested parties such as banks, financial institutions, businesses and individuals seek to obtain Shari’a advice and approval for, and the formal and legal sanction to benefit from, their desired products/services” (p.358)

What is Shari’a advisory: definition

“Shari`a Governance System refers to the set of institutionaland organisational arrangements through which an IIFS ensuresthat there is effective independent oversight5 of Shari`acompliance over each of the following structures and processes:

(a)Issuance of relevant Shari`a pronouncements(b)Dissemination of information on such Shari`a pronouncements / resolutions to the operative personnel of the IIFS who monitor the day-to-day compliance with the Shari`a pronouncements / resolutions vis-à-vis every level of operations and each transaction

Shari’a governance system: IFSB approach

(c) An internal Shari`a compliance review/audit for verifying that Shari`a compliance has been satisfied, during which any incident of non-compliance will be recorded and reported, and as far as possible, addressed and rectified

(d) An annual Shari`a compliance review/audit for verifying that the internal Shari`a compliance review/audit has been appropriately carried out and its findings have been duly noted by the Shari`a board

Shari’a governance system: definition

• Assurance of Shari’a authenticity• Promotion and development of Islamic banking and finance in line with

its philosophy and objectives • Standardisation of practice• Marketability of Islamic financial services

Need for Shari’a advisory

• Embedded Shari’a advisory boards• Shari’a advisory firms• Fatwa shopping

Models of Shari’a advisory

• Laissez faire• Managed Shari’a advisory• Central regulation

Regulatory approaches to Shari’a advisory

• Central regulation• Malaysia offers the best possible example of central regulation of

Shari’a advisory • All the regulators (BNM, SC and LOFSA) have their own Shari’a

advisory councils

Preferred approach

• Managed Shari’a advisory to start with• A National Shari’a Advisory Council

• to develop a Shari’a governance system (in light of AAOIFI and IFSB standards and guidelines)

• To supervise individual financial institutions for Shari’a authenticity

• Pakistan may serve as an example• Central Shari’a governance (after 3-5 years)

• Malaysia may serve as a good example

Shari’a advisory in Kazakhstan

• Shari’a advisory plays a crucial role in Islamic banking and finance, and hence it must not be left in the private hands, unregulated and unsupervised

• It is in the best interests of all the stakeholders of the Islamic financial services industry to develop a comprehensive Shari’a governance regime and to strict to it

• There are already steps being taken to evolve a global Shari’a standard

• Kazakhstan may decide to play a role in this

Conclusions