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Islamic finance involves structuring investments and transactions
in a way that complies with the strictures of Islamic law, or
shariah, which is intended to govern all aspects of Muslim life,
including business affairs.

Over the past decade or so Islamic financial sector has grown and
gained strength by the creation of various support and
infrastructure institutions, and expanded from being a banking-
based industry to more wider areas incorporating capital market-
based products and services. Indeed Islamic capital market like
conventional counterpart is an important component of the
overall Islamic financial system. It facilitates the transfer of
investible funds from economic agents in financial surplus to
those requiring funds


One of the most fundamental prohibitions is the charging of
interest i.e riba . The key idea is that investors should not make
money off simply lending money. This puts shariah at odds with
most conventional financing techniques, such as loans and bonds.
So deals have to be structured in other ways, often as leases,
profit-sharing, or trading. Shariah also bans investing in a number
of activities that are considered sinful, such as gambling,
pornography, the manufacture or distribution of alcohol or tobacco,
and the consumption of pork. It additionally prohibits highly
speculative investments and investing in companies that are highly
leveraged (that have excessive amounts of debt).


In classical period Islam Sakk (sukuk) which is
cognate with the European root cheque" (which
itself derives from Persian)- meant any document
representing a contract or conveyance of rights,
obligations or monies done in conformity with
the Shariah .

Empirical evidence shows that sukuk were a


product extensively used during medieval Islam
for the transferring of financial obligations
originating from trade and other commercial
activities.


ankers, lawyers and shariah scholars have come
together to develop a number of different investment
vehicles that comply with these prohibitions. One of
the most recent innovations is the sukuk, which has
been dubbed an Islamic bond and is similar to an
asset-backed security. A sukuk can be structured to
offer a fixed return similar to the interest on a
conventional bond. ut unlike a bond holder, a sukuk
holder is granted an ownership interest in the assets or
business being financed, and the return is tied to the
performance of the underlying assets.

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One of the real trailblazers in the industry is
Malaysia, which pioneered the use of the sukuk
and still accounts for a majority of the Muslim
world's sukuk offerings.

" efforts in positioning itself as an


  hub are paying off. Despite
similar ambitions from neighbouring runei and
Singapore, the country is the undeniable centre of
  activity in the region," said
Zhang Wei, a research analyst at The Asian
anker, a Singapore-based leading provider of
strategic business intelligence for the financial
services community.


The creation of Islamic money market and capital market is
another landmark development in the area of Islamic finance
in Malaysia. A wide range of instruments has been
developed to facilitate the effective management of liquidity
and funding by the Islamic financial institutions.

The Government of Malaysia has been very supportive in the


development of Islamic Capital Market (ICM ) . In 2001, the
Minister of Finance launched the Capital Market Master plan
and one of the six strategic initiatives in the plan was to
establish Malaysia as an international centre for Islamic
capital market activities. The rapid development of Islamic
Capital Market (ICM) started in 1990 when Shell MDS Sdn
hd issued the country's first Islamic bond.


The encouraging development in the ICM has encouraged major market
players to issue sukuk (Islamic bonds) and some of the major sukuk
issued since 1997 to 2010 are listed below :

1. In 1997, Khazanah Nasional erhad launched the Khazanah


Murabahah ond, which is a zero coupon bond based on murabahah and
bay al-dayn concept.

2. In 2002, Kumpulan Guthrie hd issued a US$150 million sukuk ijarah:


the first global corporate Islamic bond issue ever recorded. The issue was
listed on the Labuan International Financial Exchange (LFX) and
constituted the first tranche of a US$395 million sukuk ijarah programme.

3. The Malaysian government launched a landmark sukuk ijarah bond


issue (Malaysian Global Sukuk) worth US$600 million, becoming the
first country in the world to issue a global sovereign Islamic bond in 2002.

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. In 200, Sarawak Corporate Sukuk Inc a special purpose vehicle
established by the Sarawak Economic Development Corporation (SEDC)
launched a maiden five -year US$350 million global sukuk ijarah.

5. International Finance Corporation (IFC), the private arm of the World


ank issued RM500 million Islamic bonds, which was the first issuance of
ringgit-denominated Islamic bonds by a supranational body in 200.

6. In 2005, The World ank issued RM760 million Islamic bonds that will
mature in 2010. This ringgit-denominated issue is the largest supranational
deal in the ringgit bond market.

7. In 2009 the Malaysian Government issued RM5bil worth of Sukuk


Simpanan Rakyat.

8. The latest development is that ank Negara Malaysia  on 10 of May,


2010 release a press statement that Malaysian Government will issue
RM3bil worth of Sukuk 1Malaysia 2010 on June 21, 2010.

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Sukuk are among the best ways of financing large
enterprises that are beyond the ability of a single party
to finance. Sukuk can be structured alongside different
techniques.

While a conventional bond is a promise to repay a loan,


Sukuk constitutes partial ownership in a debt (Sukuk
Murabaha), asset (Sukuk Al Ijara), project (Sukuk Al
Istisna), business (Sukuk Al Musharaka), or investment
(Sukuk Al Istithmar).

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The   are structured based on the specific contract of exchange of
Shariah-compliant assets. Such contracts can be made through the sale
and purchase of an asset based on deferred payment, leasing of
specific assets or participation in joint-venture businesses. Hence, the
issuance of   is not an exchange of paper for money with the
imposition of an interest but rather an exchange of Shariah-compliant
asset for some financial consideration applying various Shariah
principles, such as  
  (A),   
 and  that allow the investors to earn profits
from the transactions.

The essence of sukuk, in the modern Islamic perspective, lies in the


concept of asset monetization - the so called securitisation - that is
achieved through the process of issuance of sukuk (taskeek). Its great
potential is in transforming an assets future cash flow into present
cash flow. Sukuk may be issued on existing as well as specific assets
that may become available at a future date.

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Despite progress in the improvements and introduction of an
enabling Islamic capital market environment through various
Shariah-compliant product innovations like sukuk, some
structures which attempt to achieve the same economic outcome
like conventional bond distort the Maqasid al-Shariah.
This distortion stems from the restricted view of understanding
Shariah, by only focusing on the legal forms of a contract rather
than the substance especially when structuring a financial product.
The overemphasis on form over substance lead to potential abuse
of Shariah principles in justifying certain contracts which in fact
contradictory to the Shariah text and ultimately undermining the
higher objectives of Shariah.

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Maqasid al-Shariah is the objectives and the rationale of the
Shariah. A comprehensive and careful examination of the Shariah
rulings entails an understanding that Shariah aims at protecting
and preserving public interests (maslahah) in all aspects and
segments of life. Many Shariah texts state clearly the reasoning
behind certain Shariah rulings, suggesting that every ruling in
Shariah comes with a purpose, which is to benefit the mukallaf
(accountable person). For example, when Quran prescribes Qisas
(retaliation), it speaks of the rationale of it, that applying
retaliation prevents further killing There is life for you in Qisas.
Similarly, when Quran prohibits wine it says that wine is the
works of devil as it causes quarrel and instills hatred and enmity
among Muslims The devil only wants to excite enmity and hatred
between you in intoxicants and gambling and hinder you from
remembrance of Allah and from prayer.

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In Malaysia , the operation of sukuk is under p    

(SCA) . The Shariah Advisory Council (SAC) of the
Securities Commission (SC) is a committee established by the SC in
1996 under section 18 of the p    
(SCA).
The SAC was given the mandate to ensure that the running of the
Islamic capital market (ICM) complies with Shariah principles. Its
scope of jurisdiction is to advise the SC on all matters related to the
comprehensive development of the ICM, and functions as a reference
centre for ICM-related issues. The members of the SAC consist of
Islamic scholars, jurists and Islamic finance experts.
The Shariah committee and Shariah adviser for Islamic unit trust
schemes must be approved by the SC, satisfying the criteria stipulated
in paragraph 6.05 of the Guidelines on Unit Trust Funds.

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Where a Shariah committee is appointed, the committee
must consist of at least three members who are individuals,
be independent of the management company and be
registered with the SC.

In the case of a Shariah adviser (company), the company


must have in its employment, a minimum of one full-time
officer designated to be responsible for Shariah matters
relating to the funds.

Approval by the SC for an independent Shariah adviser for


  is based on satisfying the criteria stipulated in
paragraph 6.01 of the Guidelines. For companies, the
criteria stipulated in paragraph 6.02 must also be satisfied.

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T
     
! was launched on 17
April 1999 to meet the demands from local and foreign investors
who seek to invest in securities which are consistent with Shariah
principles. It acts as a benchmark for tracking the performance of
Shariah-compliant securities and making better informed decisions.

The Islamic unit trust schemes are collective investment funds


which offer investors the opportunity to invest in a diversified
portfolio of Shariah-compliant securities which are managed by
professional managers in accordance with the Shariah. The Islamic
unit trust schemes are required to appoint a Shariah committee or
Shariah adviser as stipulated in paragraph 6.0 of Guidelines on
Unit Trust Funds to ensure that their operations are in accordance
with Shariah principles. The schemes are available in many forms
such as Islamic equity funds, Islamic bond funds, Islamic index
funds and others.

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The issuance of   is regulated by the SC through the
framework provided under the Guidelines on the Offering of
Islamic Securities (Guidelines). The structure of   must be
confirmed and approved by a Shariah adviser who is appointed
by the issuer. A Shariah adviser can be an independent Shariah
adviser approved by the SC or a Shariah committee attached to
a financial institution that operates Islamic banking activities
approved by the Central ank.

p   can be structured by applying various Shariah principles


and concepts that are listed in Appendix 1 of the Guidelines.
They have been endorsed by the SAC as appropriate for
structuring  . Prior consultation with the SAC is needed if
the Shariah principle or concept applied by the issuer is not
among those stated in Appendix 1 of the Guidelines. Prior
consultation is also encouraged for any principle or concept
stated in Appendix 1 which has no market precedence.

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Some of Dubai's most high-profile Islamic finance deals,
including advising the underwriters, Dubai Islamic ank and
arclays, on a $1 billion sukuk offering for the expansion of the
Dubai airport and a $3.5 billion sukuk issued in connection with
Dubai Ports World's $6.8 billion acquisition of P&O, the largest
sukuk offering to date. Total Sukuk issued as at 5th August 2009
amounted to US$133 billion .

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Sukuk are widely regarded as controversial due to their perceived purpose
of evading the restrictions on Riba. Conservative scholars do not believe
that this is effective, citing the fact that a Sakk (Islamic bond) effectively
requires payment for the time-value of money . This can be regarded as the
fundamental test of interest . Sukuk offer investors fixed return on their
investments which is also similar in appearance to interest in that the
investor's return is not necessarily dependent on the risks of that particular
venture.

However, banks that issue Sukuk are investing in assets and not in currency.
The return on such assets takes the form of rent, and is evenly spread over
the rental period. The productivity of the asset forms the basis of the fixed
income stream and the return on investment. Given that there is an asset
underlying the value of the certificate, there is more security for the
investors involved, accounting for the additional appeal of Sukuk as a
method of financing for investors.

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As the industry continues to mature, it faces other
challenges, as well. The deals are often segmented
among regional markets, and although a few countries
have defined parameters for what counts as Islamic
finance, most financial institutions continue to rely on
their boards of shariah scholars to determine whether
individual transactions comply with Islamic law.

Shariah scholars review transactions to determine


whether they comply with Islamic law before issuing a
pronouncement, or fatwa, that is akin to a legal opinion,
approving the deal and assuring investors that it is
acceptable from a religious perspective.


Islamic Capital Market is an important component of the overall Islamic
Financial System especially in providing an element of liquidity to the
otherwise illiquid assets. Like its conventional counterpart, Islamic capital
markets complement the investment role of the Islamic banking sector in
raising funds for long-term investment. These long-term investments are
facilitated through various Shariah contracts and instruments ensuring
efficient mobilization of resources and their optimal allocation.

One of the most popular instruments used today in Islamic Capital Market
is Sukuk. Various structures of Sukuk based on Ijarah, Musharakah,
Mudharabah and hybrid forms have evolved. However these innovations
have invoked many Shariah issues and controversies .

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Islamic banks should do away all the controversial contracts
that may impede the growth and progress of Islamic banking
and finance industry. This controversies can make it difficult to
structure cross-border deals or develop financial products that
can sell across the Muslim world. For example, Saudi Arabia-
based scholars often judge Malaysian deals to be too "flexible."

As Shariah considers money to be a measuring tool for value


and not an asset in itself, it requires that one should not receive
income from money (or anything that has the genus of money)
alone. This generation of money from money (simplistically,
interest ) is "Riba", and is forbidden. The implication for
Islamic financial institutions is that the trading and selling of
debts, receivables (for anything other than par), conventional
loan lending and credit cards are not permissible.


This principle is widely understood to mean
uncertainty in the contractual terms and/or the
uncertainty in the existence of an underlying asset in
a contract, which causes issues for Islamic scholars
when considering the application of derivatives .
Sharia also incorporates the concept of maslahah or
"public benefit", denoting that if something is
overwhelmingly in the public good, it may yet be
transacted and so hedging or mitigation of
avoidable business risks, may fall into this category,
but there is still much discussion yet to come on this
issue.


If sukuk goes for litigation under the present situation in
Malaysia , where Islamic banking litigation is tried under civil
law, this clearly goes against the grain of Syariah.
In the case of 
" #$ %&%
' 

(  held that although the said facility was


granted under Islamic principles, the laws applicable were the
National Land Cade and the Rules of the High Court 1980.

It is therefore necessary that   litigation be


tried by a Muslim judge in the interim until such time that it
can be brought under the ambit of the Syariah court system. It
is suggested that a panel comprising of muslim civil court
judges and Syariah court judges should hear matters
concerning  . esides, fundamental changes
have to be instituted to the Federal Constitution.


It is interesting to note the attitude of the English Court of
Appeal in the recent case of  )&

! * 
$$ +, where the English
court showed openness to consider the Shariah principles and
called evidence from the Shariah experts before making its
decision.

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The various credit enhancements embedded in sukuk
structures resemble the conventional bond features. These
innovations inevitably aim at achieving the same economic
outcome like conventional bonds. Consequently these
fixed-income enabling mechanisms embedded into equity
based sukuk had been the subject of strong criticisms by
various parties in terms of their compliance with the
Shariah requirements of mudharabah and musharakah
contracts. In particular, Shariah oard of Accounting and
Auditing Organization for Islamic Financial Institutions
(AAOIFI) published a statement in February 2008
suggesting that Musharakah and Mudharabah sukuk with
the credit enhancement mechanisms as practiced by the
market was not in congruent with the Shariah principles .


The fundamental characteristics of equity-based sukuk are based on
two basic features; firstly, the capital cannot be guaranteed; and
secondly, the periodic returns are also dependent on actual profits
made and can be variable. However, these Shariah strict
prescriptions of equity-based sukuk structure may not be an
attractive to conventional mind-set risk-averse investors. In
particular, the characteristics of mudharabah and musharakah do not
meet the risk appetite of investors who mainly expect capital
preservation and fixed income instruments as commonly featured in
conventional bond instruments %

It is not permissible to guarantee the capital or profit in an equity-


based sukuk transaction. In mudharabah sukuk for instance, the
mudharib is considered as the manager and trustee (amin) of the
mudharabah fund and its project .


There is a tendency in many Islamic financial institutions today to
conveniently use dharurah as an excuse to legalise certain transactions
such as the issue of profit-and principal-guaranteed in equity-based
sukuk structure although all jurists agree on its impermissibility.
Oftentimes the so-called Islamic products are rushed to market using
ploys that sound minds reject and bring laughter to enemies .
Legalizing a forbidden thing on the grounds of dharurah is supposed to
solve a problem not to create a bigger one. Islamic banks have been in
the business for more than three decades, and so far they still offer the
same excuses of dharurah and the impracticality or impossibility of
adopting lawful business contracts, due to the existence of certain
obstacles and deterrents. The questions are: do these obstacles and
hindrances still exist after more than four decades of Islamic banking
development? Are there any indications to suggest a possible change?
How has this excuse of dharurah affected the behavior of Islamic banks
in product innovation?

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Islamic banking in Malaysia , like any other banking
system, must be viewed as an evolving system. No
one disputes that there is a definite desire amongst
Muslim savers to invest their savings in ways that are
permitted by the Islamic shari'ah. Nevertheless, they
must be provided with halal returns on their
investments. It is now incumbent upon these Islamic
banks and financial institutions to cooperate among
themselves for the purpose of developing authentic
products that are far removed from empty stratagems,
free from all association with riba, and that aim to
serve the higher purposes of Islamic law in the
spheres of economics, development, and social justice.
However, the concepts of Islamic banking and finance
are still in their early stages of development and
Islamic banking is an evolving reality for
continuously testing and refining those concepts
including the sukuk.

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Malaysia as one of the trailblazers in the industry which pioneered the use
of the sukuk and still accounts for a majority of the Muslim world's sukuk
offerings. The issuance of Sukuk on the basis of the rules of the shining
Shariah of Islam is among the objectives of Malaysian Islamic banking, and
is also one of the greatest means of establishing Islamic economies in local
and global society. This, however, is on condition that the tools used to
develop and structure Sukuk are in consonance with the fundamental
principles of Islamic shariah which distinguish Islamic economic systems
from others.

Sukuk are a means for the equitable distribution of wealth as they allow all
investors to benefit from the true profits resulting from the enterprise in
equal shares. In this way, wealth may circulate on a broad scale without
remaining the exclusive domain of a handful of wealthy persons.