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by Muhammad Ashraf
Shariah compliant finance is an important part of life for the faithful. Currently, Shariah-
compliant financial products are available to both Muslims and non-Muslims around the
globe. Hence, all consumers should have the opportunity to take up these products
without facing undue regulatory barriers. Consequently, regulatory framework, including
taxation, of Shariah compliant products should apply equally regardless of the faith of
provider or consumer.
State bank of Pakistan is currently regulating the Islamic banking Mechanism through
various regulatory instruments of law which includes circulars, etc, hence, alignment of
other laws is required for a good framework for the correct interpretation of Shariah
compliant products which ought to be based on the principle of concordare leges legibus
est optims interpretandi modus – to make laws agree with laws is the best mode of
interpreting them. Moreover, the law should be so amended to include the nature of
contract instead of the types of contract because of the fact that contractus regit actum –
contract governs the act.
This article is an endeavor to suggest a principle based framework for Shariah compliant
financial products and will try to encompass various aspects of the nature of existing
Shariah compliant financial products. This includes effect of laws relating to property
including motor vehicle, transfer of property, registration of property, stamp duty, hence,
will not only be restricted to Income Tax Ordinance, 2001 and Sales Tax Act, 1990. The
suggestion in this article is based on the concept that leaving the issue unresolved would
amount to maihemium est inter criminia majora minimum, et inter minora maximum –
mayhem [chaos] is the least of great crimes and the greatest among small.
SHARIAH COMPLIANT FINANCIAL PRODUCTS
The most pronounced difference between Islamic financing and existing equivalent
products is the prohibition of interest. This is based on the principle that it is unacceptable
in and of itself for same commodity, including money, to increase in value merely by
being lent to another person. However, Shariah does not prohibit the making of a return
on capital if the provider is willing to share in the risks of a productive enterprise.
The principle deduced from the above discussion concludes the fact that Shariah prohibits
transactions that involve interest, gambling, speculation, unethical investment,
contractual terms of a transaction involving uncertainty, deception, ambiguity or lack of
clarity and give rise to speculation (Gharar). Hence, Islamic financial transactions are
structured using contracts or combination of contracts that satisfy the requirements of
Shariah. Some of the most common Shariah compliant financial products are discussed
below.
Murabaha – Basic price plus profit
A financial institution in Murabaha financing purchases the goods for the customer and
re-sells them to the customer on a deferred basis, adding an agreed profit margin. The
customer then pays the sale price for the goods either in installments or on lump sum
basis at the end of the period. There are three sub products of this product – Basic
Murabaha, Commodity Murabaha and Reverse Murabaha.
Basic Murabaha can be used to fund the purchase of a variety of assets including cars,
fridges, televisions and property (both residential and commercial). Title to the asset will
always pass from the Shariah Compliant financial product provider to the customer at the
beginning of the arrangement.
Commodity Murabaha is used in two most common situations. Firstly, a customer
requires a loan. The Shariah Compliant financial product provider purchases
commodities from a supplier including the title but not the delivery and then sells
immediately to the customer at cost plus profit. This allows the customer to defer
payment either over a set period or until a specified future date. The customer takes title
but not the delivery. The customer, using the Shariah Compliant financial product
provider as its agent, then immediately sells the commodities to a purchaser at a price,
equivalent to the cost to the Shariah Compliant financial product provider , to a
purchaser. The Shariah Compliant financial product provider who acts as an agent but do
not charge anything from the customer for acting as agent. All this is done on spot, that is,
it is done almost instantaneously to avoid the risk of either a rise or fall in the commodity
price. The proceeds equivalent to cost is credited in the customers account allows for
subsequent use. The profit on sale of the commodity by the Shariah Compliant financial
product provider to the customer is what the Shariah Compliant financial product
provider makes from the deal.
In second situation, a customer requires a loan. The Shariah Compliant financial product
provider , using an agent, purchases commodities from a supplier by just taking the title
but not the delivery and then sells immediately to the customer at cost plus profit. This
allows the customer to defer payment either over a set period or until a specified future
date. The customer takes title of the goods. All this is done on spot, that is, it is done
almost instantaneously to avoid the risk of either a rise or fall in the commodity price.
The profit on sale of the commodity by the Shariah Compliant financial product provider
to the customer is what the Shariah Compliant financial product provider makes from the
deal.
Reverse Murabaha is basically the reverse to the commodity Murabaha and is normally
used to affect a loan between financial institutions. Similarly, there are also two
situations, however, both the Shariah Compliant financial product provider s act as
agents. Firstly, Shariah Compliant financial product provider 1 requires a loan. Shariah
Compliant financial product provider 2 purchases commodities from a supplier but not
delivery. Shariah Compliant financial product provider 1 acting as agent, without any
charge, for Shariah Compliant financial product provider 2 takes the title to the
commodities and then sells the commodities immediately to Shariah Compliant financial
product provider 2 at a cost plus profit, allowing Shariah Compliant financial product
provider 2 to defer payment either over a set period or at a specified future date. In this
process, Shariah Compliant financial product provider 1 takes title to the commodities
but not delivery. Shariah Compliant financial product provider 2 then immediately sells
the commodities at a cost, equivalent to the cost, to an end-purchaser. All this is done on
spot, that is, it is done almost instantaneously to avoid the risk of either a rise or fall in
the commodity price. The proceeds equivalent to cost is credited in the Shariah
Compliant financial product provider 1’s account allows for subsequent use. The profit on
sale of the commodity by the Shariah Compliant financial product provider 2 to the
Shariah Compliant financial product provider 1 is what the Shariah Compliant financial
product provider 2 makes from the deal.
In second situation, Shariah Compliant financial product provider 1 requires a loan.
Shariah Compliant financial product provider 2 purchases commodities from a supplier
but not delivery and sells immediately to Shariah Compliant financial product provider 1
at a cost plus profit, allowing Shariah Compliant financial product provider 1 to defer
payment either over a set period or at a specified future date. In this process, Shariah
Compliant financial product provider 1 takes title to the commodities but not delivery.
Shariah Compliant financial product provider 1, with Shariah Compliant financial
product provider 2 now acting as its agent, immediately sells the commodities at cost to
an end-purchaser. All this is done on spot, that is, it is done almost instantaneously to
avoid the risk of either a rise or fall in the commodity price. The proceeds equivalent to
cost is credited in the Shariah Compliant financial product provider 1’s account allows
for subsequent use. The profit on sale of the commodity by the Shariah Compliant
financial product provider 2 to the Shariah Compliant financial product provider 1 is
what the Shariah Compliant financial product provider 2 makes from the deal.
Ijara – Operating Lease
This product is a renting product that can be used to lease a variety of assets including
cars, fridges, televisions and property (both residential and commercial). The Shariah
compliant product offering institution acquires title to the asset and gives on rent to the
customer. At no time does title to the asset pass to the customer nor is it expected to pass.
If the customer wishes to purchase the asset at a later date a separate agreement is drawn
up.
Ijara wa Iqtina – Finance Lease
This product is the same as the Ijara described above except that title to the asset is
expected to pass to the customer at some time, usually at the end of the contract period. It
can be used to purchase both goods and property.
In the light of this discussion, it can effectively be concluded that in recent years there
have been a number of prominent developments in the world including Pakistan’s Islamic
finance market, and there is now considerable interest in developing and marketing a
wide range of products. Shariah compliant current accounts, savings accounts and house
purchase facilities are now available apart from other products. The regulatory
framework discussed above needs fresh blood in the light of development discussed
above.
The author, Muhammad Ashraf is an International Tax Advisor, the opinion expressed in
this article is personal and the firm, with whom the writer is attached, may or may not
agree with it.