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Abstract
This article examines the occurrence and legal implications of fatw shopping in the
Islamic finance industry and the need to put the proper legal mechanisms in place to
regulate the phenomenon. It provides a case study of the existing legal restrictions in
some jurisdictions with a centralised Sharah Supervisory Board at the national level
such as in Malaysia. As a preliminary review of the implications of fatw shopping in
the industry, this study examines the consequential problems, current perceptions
and prospects of such practice. The study finds that instances of fatw shopping are
common in cross-border Islamic finance transactions such as cross-border ukk
transactions where there is less regulation.
Keywords
1 Introduction
1 U.A. Oseni, Introduction, in S.N. Ali, (ed.), Building Bridges across Financial Communities:
Faith-Based Finance, Social Responsibility, and the Global Financial Crisis (Cambridge, MA:
Islamic Finance Project, Harvard Law School, 2012), p. 4 et seq. Also, see Thomson Reuters,
Islamic finance assets to hit US$trillion by 2020, at http://www.themalaysianinsider.com/
business/article/islamic-finance-assets-to-hit-us3.2-trillion-by-2020-says-thomson-reuters,
accessed 12 Feb 2016.
2 M. Asutay, A Political Economy Approach to Islamic Economics: Systemic Understanding for
an Alternative Economic System, Kyoto Bulletin of Islamic Area Studies 1(2) (2007): 14-17.
3 U.A. Oseni, Towards Restructuring the Legal Framework for Payment System in International
Islamic Trade Finance, Journal of International Trade Law and Policy 12(2) (2013): 108-129.
4 Ibid.
ard-setting bodies such as AAOIFI and IFSB have been coming up with such
standards and guidelines to, for once, have some best practices that could be
adapted to suit the specific needs of individual jurisdictions, particularly in
areas of Sharah governance.5
To a large extent, nowadays the Sharah Supervisory Boards (SSB)6 have
obviously been subjected to unfair criticisms. There are reports on how some
scholars sit in multiple boards across the world and the consequential effec-
tiveness of such Sharah supervision.7 While we do not intend to delve into the
arena of controversy that has trailed the component of Sharah governance in
Islamic Financial Institutions (IFI), this article takes a critical look at another
practice in IFIs relating to the Sharah governance framework. Of recent, the
term fatw shopping has emerged in the industry, as it appears some stake-
holders are suspecting the practice of this phenomenon in the process of prod-
uct developments in some desperate financial institutions. To this end, this
article examines the legal implications of this new trend of fatw shopping in
the Islamic finance industry as well as the current perceptions and problems
associated with it.
Unlike forum shopping in private international law, fatw shopping is a
new but important aspect of the Islamic finance literature, which requires the
attention of researchers. Apart from general works such as that of Hosen8 and
a more specific one by Foster,9 not much attention has been paid to the legal
implications of fatw shopping. While some Sharah scholars have denied
5 I. Warde, Corporate Governance and the Islamic Moral Hazard, in Ali (ed.), supra note 1 at
15-25.
6 Different jurisdictions use diverse terms to refer to the role of Sharah boards and Sharah
scholars in Islamic financial institutions. While many jurisdictions in the Gulf Cooperation
Council (GCC) countries use the term Sharah Supervisory Board, Malaysia uses Sharah
Advisory Council and Sharah Committee. Others simply refers to this body as Sharah
Board or Sharah Council. In this article, Sharah Supervisory Boards is used generally but
when specific reference is made to Malaysia, the appropriate terms are used. For a compara-
tive analysis between the Sharah governance system in the GCC countries and Southeast
Asia, see R. Grassa, Shariah Supervisory System in Islamic Financial Institutions: New Issues
and Challenges: A Comparative Analysis between Southeast Asia Models and GCC Models,
Humanomics 29(4) (2013): 333-348.
7 A. Khorshid, Adding Social Responsibility and Accountability to the Mandate of Sharia
Advisory Boards, in Ali (ed.), supra note 1 at 83-101.
8 N. Hosen, Online Fatw in G. Fealy and S. White (eds.), Indonesia: From Fatw Shopping to
Googling a Kiai, in G. Fealy and S. White (eds.), Expressing Islam: Religious Life and Politics in
Indonesia (Singapore: Institute of Southeast Asian Studies, 2008), pp. 159-172.
9 J. Foster, How Sharia-Compliant is Islamic Banking?, BBC News, 11 December 2011, at: http://
news.bbc.co.uk/2/hi/business/8401421.stm, accessed: 8 November 2012.
The Arabic word fatw stems from the root word , which means youth
fulness, uniqueness, opinion, description, enlightenment, etc.10 Literally, fatw
refers to a non-binding ruling on an issue relating to Islamic law given by a
Muslim scholar or a recognised religious authority. The plurals of the word
fatw are fatwin and fatw. From this linguistic meaning of fatw, the word
istift is meant to ask for a verdict or opinion. Similarly, in the present day
Arab world, particularly with the changing socio-political landscape, istift is
mainly known to be an opinion poll.11
10 J.M. Cowan (ed.), Arab-English Dictonary. The Hans Wehr Dictionary of Modern Written
Arabic (London: Macdonald & Evans Ltd., 1993), p. 696.
11 M.K. Ibn Manzur, Lisn al-Arab (Cairo: Dr al-Maarif, 1981), vol. 5, 3348.
In Islamic legal terminology, the word fatw has a more technical meaning
that is indicative of its contextual functionality in Islamic jurisprudence. The
Prophet Muhammad (SAW) was the first person who issued fatw as emphati-
cally recognised in the Qurn and conspicuously shown in tens of thousands
of prophetic narrations. From the early days of Islam, people approached
learned companions of the Prophet to inquire about the true position of Islam
on certain issues. So, the proto-jurists in the Muslim communities were often
the torch-bearers of their societies as people approached them to get their
non-binding judgments or rulings on emerging issues not expressly covered by
textual authority.12 The answer of the respondent who is a learned jurist to the
questioner is simply referred to as fatw. It is important to clarify that fatw is
not only issued on legal matters but also on any religious issue that beclouds
the mind of the questioner. However, the scope of this study is exclusively
the value of fatw in jurisprudential issues relating to Islamic finance and
this relates to the functions of SSBs.13 Though in modern societies, experts on
financial issues do give opinions based on their experience and professional
calling, a fatw of a recognised Sharah scholar or an authoritative body has
more value in the final analysis. An example of a related fatw is reproduced
below with approval from the Fatw of Ibn Bz on the Sharah-compliant
manner of exchanging gold for gold in Islamic transactions.
Question: A man came to buy gold and sell [to] me [an]other gold. The
value of his gold, for example, is 200 riyals and my gold is 300 riyals. I gave
him the value of his gold in cash then I took the value of my gold from him
and we did not separate; is this permissible or should we separate
between one trade and the next?
Answer: In the name of Allah, the Most Gracious, the Most Merciful.
Praise be to Allah and peace be upon our Prophet Muhammad, his family,
his Companions and those who were guided with his guidance. It was
authentically reported from the Messenger of Allah (peace be upon him)
from the adth of Ubdah and from the adth of Abu Hurairah (May
Allah be pleased with him) that he said: Gold is to be paid for gold, like
for like, hand for hand, He who made an addition or demanded an addi-
tion, in fact, dealt in usury. When a person wants to sell gold to a jeweller
in return for other gold, it must be equal in weight and value; like for like.
The seller may sell the gold for a price and receive it first then he buys
other gold. As for selling him gold for gold and giving him some more
12 W.B. Hallaq, The Origins and Evolution of Islamic Law (Cambridge: Cambrigde University
Press, 2005), pp. 197-199.
13 Ibid.
Such legal opinion does not ordinarily have the force of law unless where pro-
active measures have been taken to codify or gazette it as being experienced
in Malaysia.15 One may arguably state that fatw made by the apex Sharah
Advisory Council (SAC) in the Islamic finance industry in Malaysia are binding
as SAC is a statutory body established to give a clear direction to the industry.
Such fatw do not need to be gazetted or codified to have the force of law.
However, the underlying principle is that a fatw only morally binds the maker
and not the questioner.16 Al-Ghazl noted that the jurists unanimously agree
that whenever a mujtahid arrives at a well-reasoned opinion or ruling and he
is convinced about it, it is not permissible for him to adopt an opposing view
by abandoning his own juristic efforts.17 This impliedly means the fatw binds
the maker according to Al-Ghazl. According to Al-Qarf, a muft does not
have the legal capacity to enforce a ruling. Such a muft cannot also compel a
14 A.A. Ibn Bz, Majmu al-fatw wa maqlt mutanawwiah (Riyadh: Ar-Risat al-mah li
idrat al-buh al-ilmiyyah wa al-iftwa al-dawah wa al-ird, 1410/1989), vol. 19, 161-162.
15 Section 34 of the Administration of the Religion of Islam Enactment (Federal Territories)
Act 505, 1993 of Malaysia, provides:
(1) The Muft shall, on the direction of the Yang di-Pertuan Agong [Supreme Ruler of
Malaysia], and may, on his own initiative or on the request of any person made by
letter addressed to the Muft, make and publish in the Gazette, a fatw or ruling on
any unsettled or controversial question of or relating to Islamic Law.
(2) No statement made by the Muft shall be taken to be a fatw unless and until it is
published in the Gazette pursuant to subsection (1).
(3) Upon publication in the Gazette, a fatw shall be binding on every Muslim resident
in the Federal Territories as a dictate of his religion and it shall be his religious duty
to abide by and uphold the fatw, unless he is permitted by Islamic Law to depart
from the fatw in matters of personal observance, belief, or opinion.
(4) A fatw shall be recognised by all Courts in the Federal Territories as authoritative
of all matters laid down therein.
16 See supporting views justifying this position in N. al-Tawf, Shar Mukhtaar al-Rawdah,
A. Alturky (ed.) (Beirut: Muassasat Al-Risalah, 1987), vol. 3, 629; and S. Al-mid, al-Ikam
f Ul al-Akm (Beirut: Dr al-Fikr, 1997), vol. 4, 247.
17 A.M. Al-Ghazl, Al-Mutaf min ilm al-Ul, . afi (ed.) (Medina: Al-Jmiah
al-Islmiyyah, 1992), vol. 2, at 4.
questioner to apply the Sharah ruling he has made.18 This is one of the major
differences between a muft and a q. In the case of the latter, his ruling is
binding on the litigants.19
From a different perspective, there have been situations, particularly in
Andalusia (Spain), where the muft was consulted by the council of judges on
issues relating to muamalt (rules of human conduct) in disputes brought
before them. In such judicial reference, particularly on novel issues, the muft
gave his opinion or ruling to the judges and such ruling was considered while
pronouncing the judgment of the court. In this case, such fatw becomes bind-
ing on the parties which is pronounced and enforced through the instrumen-
tality of the court.20
Generally, a fatw is issued based on the understanding of the muft (one
who gives the fatw) of the issues brought before him using the standard meth-
odologies recognised in the Islamic hermeneutic principles (ul al-fiqh).21
This suggests the possibility of multiplicity of opinions on any given issue,
depending on a number of factors that would have influenced the conclusion
of the respective jurists. Any subject of a legal inquiry brought before a jurist
is borne out of the sheer need to resolve some conflicting positions or com-
pounded legal ambiguities. Therefore, there is no doubt that a fatw assumes
a conflict of evidence and a need to weigh and evaluate the evidence.22 After
all, Sharah scholars extrapolate the applicable ruling on any subject of legal
inquiry brought before them from different sources. While the four fundamen-
tal sources of SharahQurn, Sunnah, the ijm (consensus of the schol-
ars), qiys (analogical deduction),23 the resulting fatw might be premised
on the interpretation of such primary sources in accordance with the school of
thought to which a scholar belongs.
The International Islamic Fiqh Academy (IIFA), a subsidiary organ of
the Organisation of the Islamic Cooperationformerly Organization of the
18 S.A. Al-Qarf, Al-Ikm f al-Tamyz al-Fatw an al-Akm (Beirut: Dar Ibn Hazam,
2010), 30-31.
19 A.S. Al-Andals, Fatw Qi al-Jamah, M. Ab Al-Ajfn (ed.) (Beirut: Dr Ibn azm,
2006), 49.
20 I.M. Ibn Farn, Tabirat al-ukkm f Ul al-Aqiyah wa-Minhj al-Akm (Beirut: Dr
al-Kutub al-Ilmiyyah, 1986), vol. 1, 57.
21 M.H. Kamali, Principles of Islamic Jurisprudence (3rd edn.) (Cambridge: Islamic Texts
Society, 2005), p. 278 et seq.
22 K. El-Fadl, The Search for Beauty in Islam: A Conference of the Books (Rowman & Littlefield,
2005), p. 46.
23 A.U.F. Ahmad, Theory and Practice of Modern Islamic Finance: The Case Analysis from
Australia (Boca Raton FL: BrownWalker Press, 2010), pp. 53-55.
Islamic Conference (OIC), in its 17th session held in Amman from 24 to 28 June
2006 discussed the issuance of fatw with particular reference to certain rules
and conditions. One important aspect of the rulings of the IIFA is the condi-
tions for issuing a fatw. The most important conditions enumerated by the
Academy are:
1. Knowledge of the Book of Allah and the Sunnah of His Messenger, may
Allah bless him and grant him peace, as well as related disciplines.
2. Knowledge of the fields of consensus (ijm) and disagreement, the
schools of Islamic Jurisprudence (mahib), and legal opinion.
3. Complete knowledge of principles of jurisprudence (ul al-fiqh), its ori-
gins and its rules, the goals of Sharah, as well as disciplines which con-
tribute to this such as grammar and syntax, rhetoric, linguistics, logic,
and so forth.
4. Knowledge of peoples circumstances and their customs, the conditions
and developments of the time, with due regard to how they change inso-
far as this concerns [law] that is derived from a relevant custom (urf )
that does not contradict a source text (na).
5. The ability to derive rulings in the Sharah from the source texts.
6. Consultation with experts on various specialised topics in order to for-
mulate the answer to the question, such as medical, economic, and simi-
lar questions.24
24 International Islamic Fiqh Academy, Resolution 153: The Issuance of Fatws: Rules and
Conditions, at http://ammanmessage.com/index.php?option=com_content&task=view&
id=36&Itemid=34, accessed: 12 December 2012.
25 Aznan Hasan, An Introduction to Collective Ijtihad: Concept and Application, American
Journal of Islamic Social Sciences 20(2) (2003): 26-49.
1. A fatw cannot be taken from one who does not meet the conditions
mentioned above [the six conditions enumerated above which a person
must fulfil to become a muft].
2. Often fatw broadcast through various media are only valid for the per-
son who requested it, except in cases when the circumstances and condi-
tions of the one who encounters such a fatw are like those of the one
who requested the fatw.
3. Anomalous fatw which contradict definitive texts and [which contra-
dict] fatw arrived at by consensus are to be ignored.26
26
Supra note 24.
27 A AOIFI, Accounting, Auditing and Governance Standards for Islamic Financial Institutions
(Manama, Bahrain: AAOIFI, 2005).
28 A AOIFI, Financial accounting standard 9 (Manama, Bahrain: AAOIFI, 1998). Also see
Islamic Fiqh Academy, Resolutions and Recommendations of the Council of the Islamic
Fiqh Academy 1985-2000 (Jeddah: Islamic Development Bank, 2000).
29 Islamic Financial Services Board, Guiding Principles for Corporate Governance for
Institutions Offering Only Islamic Financial Services (Excluding Islamic Insurance (Takaful)
Institutions and Islamic Mutual Funds) (Kuala Lumpur: IFSB, 2005).
30 The members of SSBs are employed by their respective Boards of Directors (BoDs) on
behalf of the shareholders. Remuneration of the SSB members is fixed by BoDs as well.
However, these aspects of SSBs potentially compromise their independence. Grais and
Pellegrini conclude that most of the IFIs have not instituted practices that ensure trans-
parency in the role and functions of the SSBs. In theory, the members of a SSB should
be well-versed in Islamic commercial law as well as contemporary financial practices.
However, in practice, the number of such competent persons is extremely limited, com-
pelling IFIs to engage scholars who sit on the SSBs of their competitors as well. For exam-
ple, Unal analyzes 1,141 positions for SSB scholars as of 31 July 2010 and concludes that
the busiest scholar holds 85 positions in IFIs and 12 positions in standard-setting bodies.
The least busy Sharah scholar among the top-20 held 14 positions in IFIs and 2 positions
in standard-setting bodies. This fact potentially compromises the independence, com-
petition and confidentiality of IFIs that have shared SSB members, and it can also create
conflicts of interest. The few scholars who are available are in great demand. This has
pushed up their remunerations and perquisites. According to the findings of Khan and
Bhatti, such scholars charge up to $88,500 per year per bank and may earn as much as
$500,000 for consultations on large capital market transactions. Similarly, Abdul-Rahman
reports that high-profile SSB members often sit on the boards of 50 to 70 banks and often
receive retainers of $50,000, as well as other perquisites such as travel expenses. The
authors highlight the significant income increases that have been gained by the Ulam
(Islamic scholars) as a result of the increased demand for their services. This often allows
them to experience a relatively more lavish lifestyle, as the demand for their services has
also been extended to the areas of fiqh (jurisprudence) research as well. Additionally,
Farooq suggests that the enhanced lifestyles of the Ulema has presented them with sig-
nificant conflicts of interest, and some accuse them of overstepping the Sharah. It is
argued that these scholars have provided easy and possibly questionable fatw (opin-
ions) that favor modern bankers. See I. Warde, Islamic Finance in the Global Economy
(Edinburgh: Edinburgh University Press, 2010); W. Grais and M. Pellegrini, Corporate
Governance and Shariah Compliance in Institutions Offering Islamic Financial Services,
World Bank Policy Research Working Paper 4054 (Washington, DC: World Bank, 2006), 9;
M. Unal, The small world of Islamic finance: Sharah scholars and governanceA net-
work analytic perspective, v.6.0. Zawya Sharah Scholars. 19 January 2011. Available online
at: www.shariahscholars.com, accessed: 15 December 2012; M.M. Khan and M.I. Bhatti,
Developments in Islamic Banking: The Case of Pakistan (Houndsmills: Palgrave Macmillan,
2008), 72; Y. Abdul-Rahman, The Art of Islamic Banking and Finance (Hoboken, NJ: John
Wiley & Sons, 2010), 241: M. Kahf, Islamic Banks: The Rise of a New Power Alliance of
Wealth and Sharah Scholarship, in C. Henry and R. Wilson (eds.), The Politics of Islamic
Finance (Edinburgh: Edinburgh University Press, 2004) 17-36; M.O. Farooq, Islam and the
Riba-Interest Equation: Reexamination of the Traditional Arguments, Global Journal of
Finance and Economics 6(2) (2009): 99-111.
31 H. Askari, Z. Iqbal, and A. Mirakhor, Globalization and Islamic Finance: Convergence,
Prospects, and Challenges (Singapore: John Wiley & Sons (Asia) Pte Ltd., 2010). Grais
and Pellegrini enumerate five functions of a SSB: 1. Certifying financial instruments for
their compliance with Sharah; 2. Verifying transactions for compliance with Sharah;
3 Calculating zakah payable by Islamic financial institutions; 4. Disposing of non-Sharah
compliant income; 5. Advising on the distribution of income among investors and share-
holders. See W. Grais and M. Pellegrini, Corporate Governance and Shariah Compliance
in Institutions Offering Islamic Financial Services, World Bank Policy Research Working
Paper 4054 (Washington, DC: World Bank, 2006).
32 There is a controversy whether the functions of SSBs and their Sharah resolutions con-
stitute what is traditionally known as fatw. From a close review of the nature of Sharah
resolution, one cannot but agree with the position that such Sharah resolutions on spe-
cific Sharah questions brought before the SSBs are fatw. See R. Wilson, The develop-
ment of Islamic finance in the GCC, Kuwait Programme on Development, Governance and
Globalisation in the Gulf States (London: Centre for the Study of Global Governance, LSE,
2009), 8.
33 M.N. Siddiqi, Maqasid e shariat (Objectives of the Sharah) (Islamabad: Institute of Islamic
Research, International Islamic University, 2009).
34 M.N. Siddiqi, Sharah, Economics and the Progress of Islamic Finance: The Role of
Sharah Experts, in Pre-Forum Workshop on Select Ethical and Methodological Issues in
Sharah-Compliant FinanceSeventh Harvard Forum on Islamic Finance (Cambridge,
MA, 2006).
Other scholars have also criticised the performance of SSBs due to their lack
of independence and transparency. For instance, Foster writes of the limited
availability of Sharah scholars and how the concentration of the same schol-
ars are spread throughout the world, from the US to Pakistan. This has often
led to much scepticism about their propriety, as some have levied the accu-
sation that these scholars issue fatws for rent, whereby enough compensa-
tion and perquisites ensure the passage of rulings favourable to the financial
institutions.35 While this happens in some situations, most jurisdictions now
have clear guidelines to ensure the independence of SSBs and promote trans-
parency and accountability in the discharge of their duties.
Nevertheless, Warde contends that interviews have shown that, in some
instances, the SSB decision is one in which the board rubber stamps the deci-
sions already made by bank management.36 This is why Farooq has warned
that the term Sharah-compliant can be sometimes misleading. Here, it is
argued that the term refers to practices that have been deemed acceptable by
SSBs, rather than whether the practice is actually compliant with the rules of
Islam.37 Nevertheless, whether members of SSBs rubber stamp the decision of
the bank management or notwhich is definitely not true in all casesthis
unique class of experts remains the centrepiece of the Islamic finance indus-
try. The concerns being raised in this study relate to instances where proper
regulation of fatw making are needed to enhance consumer confidence in the
products and services being offered by the industry. Conflict of interests can be
easily avoided in situations where the law has provided for the establishment
of a statutory Sharah body, such as in the case of Malaysia, where the SAC is
considered the final authority in the ascertainment of the Islamic law applica-
ble to Islamic finance transactions. This is where modern positive law plays its
role in regulating and facilitating Islamic finance business.
The aim of the person is not to find the opinion that is the most reliable or the
most in line with what the Prophet might have responded39 but rather the
opinion which suits the preconceived belief or proposal. In most cases, such
situations involve getting a scholar to rubber-stamp ones prior position on
issues. It is pertinent to observe that the term fatw shopping can be used in
both the positive and negative sense, depending on the intention of the seeker
as well as the method adopted to seek the formal legal opinion.
In the positive sense, there are some legitimate situations in which a muft
can find ways out (makhrij) for someone who seeks clarification on a Sharah
issue. In such a situation, the muft might even take a further step to confirm his
ruling with other learned scholars if the issue is so confusing and subjective.
Though this may be termed fatw shopping, the practice is acceptable under
the Sharah. Similarly, it is not wrong to ask a muft a specific question until the
seeker finds one that he/she is satisfied with based on a good understanding
of the situation.40 The person requesting a legal opinion may choose an easier
opinion in a confused state, and this is not also considered fatw shopping.41
The general usage of the phrase fatw shopping is implied more in the nega-
tive sense rather than mere seeking for the most appropriate opinion. While
the above definitions of fatw shopping may be simply referred to as taayyur
(preference or selection), there is another side of the coin, which is the focus
of this article. To this end, a different definition is proffered. Fatw shopping
is the act of seeking a favourable Sharah ruling on a particular issue. In con-
38 M.S. Malik, A. Malik, and W. Mustafa, Controversies that Make Islamic Banking Contro-
versial: An Analysis of Issues And Challenges, American Journal of Social and Manage-
ment Sciences, 2(1) (2011): 41-46.
39 A.S. Ahmed, Muft, Fatw, and IstiftaThe Asking and Answering of Religious
Questions,onlineat:http://www.suhaibwebb.com/islam-studies/muft-fatw-and-
istifta-%E2%80%93-the-asking-and-answering-of-religious-questions-part-ii/, accessed:
11 November 2012.
40 This is what is known as taqld al-mafl which simply means following the less excellent
juristic view in the presence of a better ruling. This principle permits the questioner to
choose any of the rulings once scholars have given their fatw. See A.M. Ibn Qudamah,
Rawdah al-Nir wa Janat al-Munir f Ul al-Fiqh al madh-hab al-Imm Amad bin
anbal, 2nd edn. (Beirut: Muassasat al-Rayyn, 2002), vol. 2, 388.
41 M. Al Rm, Kitb al-Furu, A.A. Al-Turki (ed.) (Beirut: Muassasat al-Rislah, 2003), vol. 9,
20-21.
textualising the concept within the general framework of the modern prac-
tice of Islamic finance and the imperativeness of Sharah compliance, fatw
shopping can be defined as the act of looking around for a friendly ruling on
the compliance of a particular finance product. This naturally involves seeking
Sharah scholars who will endorse such a product. While most of the Sharah
scholars exercise due diligence in approving most Islamic finance products
brought before them, there are some marginal instances of abuse, which are
caused by a number of factors discussed in the next section of this article.
42 M.K. Hassan and M.F. Dicle, Basel II and Corporate Governance in Islamic Banks, in
S.N. Ali (ed.), Integrating Islamic Finance into the Mainstream: Regulation, Standardization
and Transparency (Cambridge, MA: Islamic Finance Project, Harvard Law School, 2007),
31-50.
43 Islamic Financial Services Board, Guiding Principles for Corporate Governance for
Institutions Offering Only Islamic Financial Services (Excluding Islamic Insurance
(Takaful) Institutions and Islamic Mutual Funds) (Kuala Lumpur: IFSB, 2005), 25.
need for a clear regulatory framework for both domestic and cross-border
Sharah advisory services.
The above references to fatw shopping are not isolated cases, as the phenom-
enon has been confirmed by one of the IFSB Sharah researchers who publicly
declared that there are notable instances of fatw shopping which are usually
done with inscrutable motives.64
As MacFarquhar65 rightly argued, unfortunately fatw shopping has helped
breed fatw chaos in some Muslim communities. This might not be unassoci-
ated with the growing scepticism of some onlookers to the controversial prac-
tices in the broader Islamic finance industry.
The incidences of fatw shopping briefly examined here are in different
dimensions. These dimensions are gleaned from the available literature and
observable market practices over the years. These include the following:
1. Proactive search;
2. Careless online search;
3. Negligent adoption of previous fatw;
4. Overbearing influence of some bank executives;
5. Geo-jurisprudential divergence on some Islamic finance products; and
6. Appointment of favourable Sharah scholars.
While the above dimensions are not exhaustive, as the Islamic finance indus-
try is still evolving as well as the fact that it is increasingly expanding into new
frontiers which are less regulated, one may arguably conclude that instances of
fatw shopping fall under more dimensions, if it does not fall under one.
64 The authors were thrilled when a senior researcher at the Islamic Financial Services
Board openly declared that there are covert instances of fatw shopping. This was made
public during the initial presentation of an earlier draft of this article at the 2nd Internal
Conference on Islamic Economics & Economies of the OIC Countries, Parallel Session 3,
Kuala Lumpur, 30 January 2013. The panel was chaired by Masudul Alam Choudhury.
65 N. MacFarquhar, The Media Relations Department of Hizbollah Wishes You a Happy
Birthday: Unexpected Encounters in the Changing Middle East (New York: Public Affairs,
2009), 126.
Dubai-based investment banker who frankly disclosed the way they go about
searching for the appropriate Sharah scholars who will give them the seal of
approval to the proposed Islamic finance product:
We create the same type of products that we do for the conventional mar-
kets. We then phone up a Sharah scholar for a Fatw [seal of approval,
confirming the product is Sharah compliant].... If he doesnt give it to
us, we phone up another scholar, offer him a sum of money for his ser-
vices and ask him for a fatw. We do this until we get Sharah compli-
ance. Then we are free to distribute the product as Islamic.66
One should quickly add that this attitude is not so common in regulated juris-
dictions, as some Sharah scholars consider it as unnecessary exaggeration.
But the perception persists and it presents a handicap for the credibility of
the industry and its gatekeepers.67 However, one cannot rule out this prac-
tice in conventional financial institutions that are trying to win the minds of
Sharah-inclined investors.68 This unhealthy practice calls for quality control
through proper accreditation and perhaps certification in the Sharah disci-
pline with particular reference to Islamic rules on transactions, known as fiqh
al-mumalt.
66 Supra note 9.
67 Supra note 62.
68 U.A. Oseni and M.K. Hassan, Regulating the Governing Law Clauses in ukk Transactions,
Journal of Banking Regulation 16 (2015): 220-249, doi:10.1057/jbr.2014.3.
This is for information of all concerned that I have been receiving corre-
spondence from various places enquiring whether I have authorised any
Ijarah contracts of certain financial institution in America, Australia and
Canada. As evidence these companies have posted a 15 years old fatw of
mine on their websites. I would very explicitly like to declare the follow-
ing in this regard:
This fatw was actually issued 15 years ago in peculiar circumstances
prevalent at that time in favour of a house financing company, namely,
Al-Amin Company based in Jeddah which they had intended to imple-
ment at that time. This Fatw is no longer valid. As such, the use of this
fatw by other financial institutions is illegal and misleading.
69 S. Zaman, From Imam to Cyber-Muft: Consuming Identity in Muslim America, The
Muslim World 98(4) (2008): 465-474.
All such companies are requested not to refer to this Fatw nor to use it as
their marketing material, and immediately remove it from their websites,
failing which they may face legal action at their own cost.70
Though one may want to brush aside the recurrence of the above instance,
the fundamental issue raised in this case touches on the very basis of Sharah-
compliant financing. How can such IFIs, adopting an old fatw previously
issued on a separate form of contract, convince the public that the fatw is
applicable to new similar contracts mutatis mutandis? There are many consid-
erations that must be taken into account in the process of varying a previously
issued fatw of a particular scholar. Article 39 of Majallat al-Akm al-Adliyyah
provides that: Changing rules according to changing times is not to be
denounced.71 This principle is based on the legal maxim al-dt muakkamah
(custom has the force of law).72 It is important to quickly clarify that it is only
rulings that are derived from prevailing customary practices which do not con-
tradict the Sharah that have the force of law.73 To this end, the applicable rul-
ings can change depending on the time, place and even circumstance.
Nevertheless, it is important to clarify that peoples needs do change accord-
ing to changes in time, places and circumstances but that does not rule out
mandatory provisions of the law. As for the rulings that are derived from the
Sharah which are not necessarily derived from customs and traditions, the law
does not change regardless of the changes in time, places and c ircumstances.74
Issues like rib, gharar, and other prohibitive elements in Islamic finance con-
tracts do not fall under the custom and tradition exception. The above case
does not even fall under such categories of fatw that may be varied accord-
ing to time and place since a new fatw has not been issued yet on that subject
matter.
70 M.T. Usmani, Misue of a Fatw, 13 October 2010, Muft Muhammad Taqi Usmani
Homepage online at: http://www.mufttaqiusmani.com/index.php?option=com_content
&view=article&id=1%3Amisuse-of-a-fatw&Itemid=1, accessed: 8 November 2012.
71 C.R. Tyser, D.G. Demetriades, and I.H. Effendi, The Mejelle: Being an English Translation
of Majallahel-ahkam-i-adliya and a Complete Code on Islamic Civil Law (Lahore: Law
Publishing Company, 1980), Article 39 et seq.
72 G. Libson, On the Development of Custom as a Source of Law in Islamic Law: Al-ruju
il al-urfi aadu al-qawidi al-khamsi allat yatabann alayh al-fiqhu, Islamic Law and
Society 4(2) (1997): 131-155.
73 S. Mahmassani, Muqaddima f Ihy Ulm al-Sharah (Beirut, Dr al-Ilm li al-Malayin,
1962), 67-69.
74 A. Haidar, Durar al-Hukkm fi Sharh Majallt Al-Ahkm (Haifa: Abasid Press, 1925), Vol. 1.
75 Principle 3.1 of the Sharah Governance Framework for Islamic Financial Institutions 2010
of Bank Negara Malaysia provides: The board [Board of Directors] shall recognise the
independence of the Sharah Committee and ensure that the committee is free from
any undue influence that would hamper the Sharah Committee from exercising objec-
tive judgment in deliberating issues brought before them. Correspondingly, the Sharah
Committee is expected to make sound decisions on Sharah matters in an independent
and objective manner. See Bank Negara Malaysia, Sharah Governance Framework for
Islamic Financial Institutions 2010 (Kuala Lumpur: BNM, 2010), 15.
76 According to Siddiqi, the current state of affairs in the industry comprises several issues
that call for serious concern. First, IFIs treat the advice of the Sharah experts as their
property and are under no obligation to share the experts advice. Therefore, the trans-
parency of this advice is reduced. Traditionally, Islamic religious opinions or fatw
have been a public good, but in the context of Islamic financial institutions, they have
in some ways become a private good. Second, there is a tendency in Islamic finance to
duplicate conventional financial instruments with some modifications in terms and
phrases, creating a semblance with interest-based instruments. Examples are ukk and
tawarruq. It can be argued that Sharah experts do not have the legal expertise or training
to understand all the consequences of these new instruments that they approve. Third,
the gamut of issues and the scope of Islamic economics are too vast to be mastered by
any one Sharah expert. The challenge is to cope with the emerging new issues in light
of the objectives of the Sharah. The existing education and training of scholars do not
equip them to meet that challenge. The Muslim global community (ummah) needs to
consider this problem at an international level. In the case of ukk, for liquidity purposes
and in the course of raising funds for major developmental projects, Shariah-compliant
investment certificates have been used. Though such efforts are borne out of the sincerity
and ingenuity of both Sharah scholars and lawyers, in some cases such ukk have to be
structured in a way and manner that complies with the domestic laws of certain jurisdic-
tions. See U. Oseni, Dispute Management in Islamic Financial Institutions: A Case Study
of Near ukk Defaults, Journal of International Trade Law and Policy 13 (3) (2014): 198-
214. In a similar vein, there are some forms of tawarruq, such as the organised tawarruq
(tawarruq munazzam) which has been declared arm (prohibited) by the Islamic Fiqh
Academy of the Organisation of Islamic Cooperation (OIC) due to its semblance of a ficti-
tious sale. See Frank E. Vogel, S. Nazim Ali, and Umar A. Oseni, The Tawarruq Debate in
Islamic Finance (Cheltenham: Edward Elgar Publishing, forthcoming).
77 W. Grais and M. Pellegrini, Corporate Governance and Sharah Compliance in
Institutions Offering Islamic Financial Services, World Bank Policy Research Working
Paper 4054 (Washington, DC: World Bank, 2006), 9.
78 A.U. Faruq Ahmad and R. Raashed, Islamic Banking: Between Myth and Reality,
Australian Journal of Basic and Applied Sciences 7(6) (2013): 326.
79 Moulanas is an allusion to the Sharah scholars.
80 Supra note 87.
This allows differences to arise and exist between the countries and
regions, providing for fatwa shopping opportunities. Furthermore, fatwa
shopping increases the inconsistency between Islamic financial prod-
ucts, leading consumers and investors to be uncertain regarding the
Sharah compliance of the offered products and gradually leading them
to lose faith in Islamic finance as a whole.83
84 I. Marinescu, Where Does the Dirham Stop in a Sukuk Default?, Hastings Intl & Comp. L.
Rev. 35 (2012): 451-477.
85 Supra note 62.
86 Supra note 61 at 50.
Sharah Supervisory Boards should not limit their role to the issuance of
fatw on the permissibility of the structure of ukk. All relevant con-
tracts and documents related to the actual transaction must be carefully
reviewed {by them}, and then they should oversee the actual means of
implementation, and then make sure that the operation complies, at
every stage, with Sharah guidelines and requirements as specified in the
Sharah Standards.87
This timely warning from the international standard-setting body was spe-
cifically made for ukk transactions. Nevertheless, it also equally applies to
Islamic finance transactions. The statement reemphasised the importance of
regulation of Sharah advisory roles in the industry.
Though during the early days of Islam and in subsequent eras that saw the
evolution of fiqh, there was no need to legally restrict fatw making through
positive law. The focus then was to develop the Islamic corpus juris and teach
it to others in a manner that befits its underlying philosophy. However, with
the crystallisation of fiqh, the complexities of modern transactions, and the
positivist nature of formal legislations, one cannot think of any better way to
restrict the abuse of fatw making than the instrumentality of the law.
The Malaysian legal framework provides a good model for regulating fatw
making in order to curtail fatw shopping while allowing flexibility of Sharah
rulings through a two-tier Sharah infrastructure in the Islamic finance indus-
try. While the SAC is the statutory apex authority for the determination of
Islamic law for the purposes of Islamic financial business in Malaysia, the
Sharah committees serve as internal Sharah advisory bodies for the sole
87
Accounting and Auditing Organisation for Islamic Financial Institutions, AAOIFI
Resolution on ukk, February 2008, available online at http://islamicbankers.files.word
press.com/2008/09/aaoifi_sb_sukuk_feb2008_eng.pdf.
purpose of advising the IFIs for the purposes of Islamic financial business.88
Section 58 of the Central Bank of Malaysia Act, 2009 (Act 701) provides that,
in the event of a conflict between the Sharah ruling given by a Sharah com-
mittee of an IFI and that of the SAC, the ruling of the latter shall prevail. In
addition, within the same industry, an IFI is not allowed to appoint any mem-
ber of the Sharah committee of another IFI as a member of its own Sharah
committee in order to avoid conflict of interest. Such restriction and clear
delimitation of the law has completely shut out possibility of fatw shopping
in Malaysias Islamic finance industry.89
In a recent case, it was contended that the legal restriction on fatw shop-
ping or regulation of fatw making in the Islamic finance industry has con-
ferred more statutory powers on the SAC to the extent that it now performs
judicial or quasi-judicial functions.90 This was the bone of contention in Tan
Sri Abdul Khalid bin Ibrahim v. Bank Islam Malaysia Bhd91 where the court clar-
ified the position of the law regarding the statutory powers conferred on SAC.
The High Court held that the function of this apex Sharah body in Malaysia is
merely ascertainment of the Islamic law on financial matter which is not the
same as judicial or quasi-judicial functions. Such ascertainment is necessary
in proceedings involving Islamic finance matters since the court is not suf-
ficiently equipped to deal with the issue whether a transaction under Islamic
banking is in accordance to the religion of Islam or otherwise.92 The court fur-
ther observed that it still has to decide the ultimate issues which have been
pleaded.93 The Court of Appeal upheld the position of the High Court and
further observed:
88 The main duties and responsibilities of the Sharah Committee of IFIs in Malaysia are:
responsibility and accountability, advise to BoDs and the IFI, endorse Sharah policies
and procedures, endorse and validate relevant documentations, assess workd carried out
by Sharah review and Sharah audit, assist related parties on Sharah matters, advice on
the matters to be referred to the SAC, and provide written Sharah opinions. For the full
details of the duties and responsibilities of the SAC, see Supra note 84 at 34-35.
89 See Clause 5.4 of Section V (Confidentiality and Consistency), Principle 5, The Sharah
Governance Framework for the Islamic Financial Institutions, 2010. See supra note 84 at 20.
90 This was the argument of the counsel in Tan Sri Abdul Khalid bin Ibrahim v. Bank Islam
Malaysia Bhd [2013] 3 MLJ 269.
91 [2012] 7 MLJ 597 at 614.
92 Ibid.
93 Ibid.
There was a further appeal to the Federal Court of Malaysia but there was an
indication in February 2014 that the parties have decided to pursue out-of-court
settlement.95 The legal tantrums Islamic finance lawyers on both sides of the
coin have thrown at each other since the SAC controversy cropped up brings to
the front burner the implication of regulating Sharah rulings or fatw in the
Islamic finance industry.
Not anybody can give a valid Sharah ruling on Islamic finance products
and services in Malaysia. Before one can give a valid ruling, such a person must
be a member of either a Sharah committee of an IFI or a member of the SAC
of Bank Negara Malaysia (BNM). Then, for a Sharah scholar to be qualified
to sit on any of the two bodies, he or she must fulfil the following require-
ments as outline in the Sharah Governance Framework for Islamic Financial
Institutions 2010:96
94 See Tan Sri Abdul Khalid bin Ibrahim v. Bank Islam Malaysia Bhd [2013] 3 MLJ 269 at 277.
95 Selangor MB was plaintiff in out-of-court settlement with BIMB, The Rakyat Post,
10September2014,availableathttp://www.therakyatpost.com/news/2014/09/10/
selangor-mb-plaintiff-court-settlement-bimb/.
96 Supra note 84 at 30.
This legal restriction is only limited to the Islamic finance industry. It seeks to
prevent fatw shopping and possibly reduces such phenomenon to near-to-
zero. For this reason, the new legal framework in Malaysia makes the Sharah
committee members legally liable for the products they approve.97
97 See sections 28 and 29 of the Islamic Financial Services Act 2013 (Act 759) of Malaysia.
Section 28 of the Act provides:
(1) An institution shall at all times ensure that its aims and operations, business,
affairs and activities are in compliance with Sharah.
(2) For the purposes of this Act, a compliance with any ruling of the Sharah Advisory
Council in respect of any particular aim and operation, business, affair or activity
shall be deemed to be a compliance (c) within 30 days of becoming aware of such
non-compliance or such further period as may be specified by the Bank, submit to
the Bank a plan on the rectification of the non-compliance.
(4) The Bank may carry out an assessment as it thinks necessary to determine whether
the institution has rectified the non-compliance referred to in subsection (3).
(5) Any person who contravenes subsection (1) or (3) commits an offence and shall, on
conviction, be liable to imprisonment for a term not exceeding 8 years or to a fine
not exceeding 25 million ringgit or to both.
These measures are meant to curtail instances of fatw shopping and ensure
unsuspecting consumers of Islamic financial products and services are ade-
quately protected. The centralised Sharah governance system in Malaysia
recognises the towering role of the SAC of BNM at the macro-level and the sup-
plementary nature of the functions of Sharah committees at the micro-level.
So, since every IFI is statutorily mandated to establish a Sharah committee,
the probability of having instances of fatw shopping is almost zero.98 Hence,
in order to avert instances of fatw shopping, proper legislations should be
put in place, and it is more practicable to centralise the Sharah governance
system for proper monitoring.99
The above analysis emphasises the intersections between law, finance and
Sharah which is contextualised within the Islamic finance framework. For a
proper regulation of the phenomenon of fatw shopping, a proper Sharah
governance framework is required. As emphasised above, this can only be
realised through the instrumentality of law.
Thus, it is evident that fatw making in Islamic finance should follow a set
of guidelines and it should be subject to review by other relevant bodies. The
above Sharah governance framework model provides a good alternative to an
unregulated Islamic finance industry and prevents instances of fatw shopping.
7 Conclusion
This aspect of Sharah governance literature remains a very new area in Islamic
finance scholarship. Further research is required to explore the cost-benefit-
98 There is no doubt that the model of Sharah governance adopted in a particular jurisdic-
tion largely influences the dynamics of the SSB and the duties of the Sharah scholars.
Though there are different models of Sharah governance, a centralised system seems to
be more effective in curtailing the perceived excesses in Sharah advisory. In this section,
we examine the Sharah governance framework in Malaysia, which has proved to be a
sustainable model of a centralised approach in Sharah governance. Malaysia is one of
the few jurisdictions that adopt the centralised approach in Sharah governance. It is
therefore pertinent to observe that Islamic finance legislations, whether as an enabling
law or regulations, play a significant role in regulating the duties of the members of SSB.
This legal regulation of Sharah advisory role has significantly curtailed instances of
fatw shopping in the three jurisdictions.
99 W. Hegazy, Fatws and the Fate of Islamic Finance: A Critique of the Practice of Fatw in
Contemporary Islamic Financial Markets, in S.N. Ali (ed.), Islamic Finance: Current Legal
and Regulatory Issues (Cambridge, MA: Islamic Finance Project, Harvard Law School,
2005), 133-149.
analysis of fatw shopping in the Islamic finance industry. It thus appears that
apart from shopping for favourable fatw to sign off on certain new Islamic
finance products, another dimension to the discourse is shopping for schol-
ars who are known to be favourably disposed to certain forms of transactions.
While one may not categorically berate the general practice of fatw shopping,
which currently appears in form of a clandestine process within the Sharah
governance framework in some jurisdictions, when it is tainted with elements
of financial inducement for favourable fatw, it takes on a different look.
Legal restrictions to curtail instances of excessive fatw shopping can only
be introduced through proper legislations or regulations that provide for a cen-
tralised and transparent Sharah governance framework for every jurisdiction
across the world. Once IFIs are given the free hand to embark on unrestricted
voyage, which may involve navigating in uncharted waters, there is always
the tendency that they will end up in murky waters, which may spell doom
to the entire Islamic finance industry. Therefore, without a proper regulation
of Sharah advisory process in IFIs operating under the laws of a particular
jurisdiction, the key players may end up taking the laws into their hands and
manipulating the market as well as the consumers of Islamic finance prod-
ucts. This will defeat the very underlying philosophy of Islamic economics and
finance.