Islamic banking system in Malaysia : a study of the legal and shari'ah framework with special reference to debt financing products

Abstract

Islamic banking system in Malaysia has been developed as a 'dual-banking' system in which Islamic banks operate parallel with the existing conventional banking system under current legal framework. Since the Shari'ah compliance is an integral feature of Islamic banking, Islamic banks must firstly conform to the Shari'ah principles and at the same time they should comply with the various laws governing contract and commerce as well as regulations and guidelines issued by the Bank Negara Malaysia (BNM). Islamic Banking Act 1983 (IBA) is above all a regulatory piece of regulation and does not intend to provide detailed substantive provisions on the subject. Furthermore, current rapid developments of the Islamic banking system have led to the invention of various new products. The over enthusiasm in creating these new products might has trapped the Islamic banks into duplicating and modification the products offered under the conventional banks with 'Shari'ah sounding' names. In light of the above, this thesis attempts to investigate the legal and Shari'ah frameworks that govern the Islamic banking system in Malaysia with regard to the application of the debt financing products. The thesis suggests that there are some potential conflicts between Islamic law and civil law which give the impression that some of the practices of Islamic banking system are not fully compliant to its intended philosophy. The legal framework of Islamic banking is not in line with the rapid development of the Islamic banking industry, and therefore, it needs to be revised and modified to suit the Islamic banking practice. Similarly, an effective and conducive Shari'ah framework is needed to ensure such compliance and strengthen the regulatory and supervisory process as well as harmonising the Shari'ah interpretations.