Cases on the Power of Shariah Advisory Council (SAC)


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Cases on the Power of Shariah Advisory Council (SAC)

  2. 2. Bank Islam Malaysia Berhad v Lim Kok Hoe and Anor and Other Appeals [2009] 6 CLJ 22 The case before the Court of Appeal consists of 12 separate appeals filed by the Appellant - In all these cases, the Plaintiff is Bank Islam Malaysia Berhad while the Defendants are the Bank’s customers SAC is a legal infrastructure to ensure Islamic Financial Institutions -not involve-any element not approved by Islam SAC-statutory duty-to ensure the operation of IB within the ambit religion of Islam
  3. 3. MOHD ALIAS IBRAHIM v RHB BANK (2011) 3 MLJ 26  Issues: House financing BBA - whether CBMA ultra-vires? - whether SAC has power to decide? - whether court bound to follow SAC?  Civil Court has the jurisdiction to hear IB cases Federal List (List I) 9th Sch. FC  The practice of Civil court referring questions on Islamic law to Islamic authorities isn't something new but has been decided in many previous cases  The sole purpose of establishing SAC: to create a specialized committee in the field of IB-ascertain speedily-financial matters-not to perform judicial or quasi judicial function-not an attempt by the executive to take over the judicial power traditionally exercised by the court
  4. 4.  Questions concerning Shariah matters: - Civil Court IS BOUND to take into consideration any published rulings of SAC; - or refer such questions to SAC for its ruling; - and any such ruling be binding into the court  SAC not in position to issue new hukum syarak but: TO FIND OUT WHICH ONE OF THE AVALABLE HUKM SYARAK APPLICABLE IN MALAYSIA FOR THE PURPOSE OF ASCERTAININNG THE RELEVANT LAWS CONCERNING IB  S 51 CBMA 2009: SAC’s role to make an ASCERTAINMENT not determination - SAC : ”Ascertain” to find out the truth about something - Court : “Determine” to discover a fact about something or to put an end to controversy, dispute  The issue of whether the facility is Shariah compliant or not; to be decided by the Court  Rulings passed by SAC a form of EXPERT OPINION-matter of IB-within context of Islamic laws in Malaysia, not fatwas  By admitting SAC as amicus curiae(friend of the court)-parties not being denied right to be heard
  5. 5. Tan Sri Abdul Khalid bin Ibrahim v Bank Islam Malaysia Bhd. [2012] 7 MLJ. 597 Issues: House financing-BBA-restructuring - constitutionality s56,57 CBMA? - power of SAC?? - retrospective effect? A good reason having SAC A ruling made by body given legislative authority will provide CERTAINTY -a needed element to ensure efficacy in a commercial transaction Take cognizance of the different views & opinion on shariah in the area of fiqh muamalat-there’ll inevitable be varied opinons on the same subject - a permissive nature of the religion
  6. 6. Government under siasah as-shariah - allowed to choose which amongst conflicting views to be adopted as policy-as long as not depart from primary sources of shariah-for the benefits of the ummah Designation of SAC indeed in line with the principles of Islam “Muamalat” - highly complex yet under developed area of fiqh - not codified - Civil Court not conversant No limitation imposed on SAC in its performed duty-CBMA S 56 & 57 CBA can be applied retrospectively