Is Tawarruq Really Islamic Finance?

Is Tawarruq Really Islamic Finance?

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A legal opinion from Ethica Institute Of Islamic Finance, one of the Islamic finance industry’s leading training and certification institutes sheds light on the problem of the Tawarruq retail product and how it is likely hurting the industry’s profitability

You walk into the Islamic bank, sign some papers, “trade” in metal in some corner of the globe, and walk out with cash. Papers are pushed, money changes hands, and the metal just sits there, ready for the next customer to “trade” a few minutes later. Or can the same metal be bought and sold by different customers in the same minute? Who’s counting anyway?

Welcome to the world of Tawarruq.

Last week Ethica Institute, one of the industry’s leading Islamic finance training and certification institutes, distributed a fatwa (expert legal opinion) to its community from one of its scholars, Mufti Ismail Desai, explaining the impermissibility of a particular Tawarruq product. The product in question came to light when one of the UK’s major banks approached the institute for its training and certification services. Ethica declined to offer its services citing Shariah non-compliance of the Tawarruq product.

What some Islamic finance scholars begrudgingly allow for in extreme, case-by-case situations, banks often turn into a retail product for ordinary customers to use. Tawarruq, according to Ethica, is one of the main reasons customers question the credibility of Islamic finance. A product that began as the industry’s somewhat embarrassing black sheep over a decade ago has now grown into the eight hundred pound darling of many Islamic banks.

Ethica’s fatwa raises two important issues for an industry fast on growth but slow on establishing credibility among banking customers: first, what really is Tawarruq? And, second, importantly, if it becomes a regular product, is it still Islamic finance?

“Banks think they attract customers in the short term, but the reality is that they lose them in the long term. Ethica works with bankers and customers across multiple regions and we are seeing the same pattern: when Islamic finance’s credibility is compromised, customers leave. And they usually don’t come back. Retail Tawarruq is not only Shariah non-compliant most times, it is also quite possibly the worst first impression we can make as an industry,” said Ethica’s spokesperson.

Ethica explains that the first step to understanding Tawarruq is understanding its definition according to the Accounting and Auditing Organization for Islamic Financial Institutions (AAOIFI), the world’s leading Islamic finance standard. Tawarruq (Monetization), “refers to the process of purchasing a commodity for a deferred price determined through Musawama (Bargaining) or Murabaha (Mark-up Sale), and selling it to a third party for a spot price so as to obtain cash. Whereas Inah refers to the process of purchasing the commodity for a deferred price, and selling it for a lower spot price to the same party from whom the commodity was purchased.”

To expand on this definition,

1. Bay al-Inah is composed of two sale transactions. In the first transaction, a seller sells an item for a particular price to be paid in deferred installments. In the second transaction, after taking possession of the item, the buyer sells the item back to the seller for immediate payment of a lower price, to be paid before the installments of the first sale are due. The overwhelming majority of scholars are of the opinion that Bay al-Inah is impermissible when the price of the second sale is lower than the first sale. However, some jurists have ruled that Bay al-Inah is permissible in the instance when the price of the second sale is equal or higher than the price of the first sale.

2. Bay al-Tawarruq in the strict definition of the jurists is defined as a Monetizer (mustawriq) who buys a merchandise at a deferred price in order to sell it in cash at a lower price. Usually he sells the merchandise to a third party with the aim to obtain liquidity. Jurists have ruled that this form of Tawarruq is permissible since the laws and rules of a valid legal Shariah sale have been fulfilled.

The contemporary definition of organized Tawarruq is when a Monetizer (mustawriq) purchases merchandise/commodities on the international commodity market on a deferred price basis either through Musawamah or Murabaha. The financier arranges the sale agreement either himself or through his agent. Simultaneously, the mustawriq and the financier executes the financial transactions, usually at a lower spot price.

According to scholars, Tawarruq should be limited to individual need and necessity and not retailed to the public. The Islamic economy, they say, should be based on profit-sharing instruments like Mudarabah and Musharakah. Interest free loans (Qardh Hasan) are the ideal alternative to Tawarruq. Among the problems with Tawarruq:

1. Tawarruq in currencies are not permissible.

2. The bank cannot sell goods on behalf of the client without the client taking physical or constructive possession of the goods. This does not usually take place. Islamic banks generally sell the warrants representing the metals and not the actual metals. Therefore, the bank does not take possession when purchasing the metals from the broker initially. The Mustawriq (monetizing client) does not take possession in any form of the metals. The bank is merely appointed as an agent to sell the metals on the metal exchange without any actual Shariah realization of the contractual positions required.

3. All the transactions in a Tawarruq transaction should be separated and individualized. The various legs in most transactions are not individualized and separated.

4. Contemporary forms of organized Tawarruq are very similar to Bay al-Inah and have been largely detested by the majority of scholars including the International Council of Fiqh Academy. (Resolution 179 (19/5) in relation to Tawarruq: its meaning and types (classical applications and organized Tawarruq))

While it remains to be seen whether Tawarruq reform is likely in the industry much like a few years ago when banks began cleaning up their Sukuks after AAOIFI’s chairman, Mufti Taqi Usmani, publicly criticized them there is no doubt that the industry continues to suffer the long-term consequences of an expedient reading of an already borderline product.

Zulkifli Hasan

Tokyo, Japan




Zulkifli Hasan
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1.0 Introduction

Ramadhan is the greatest month and the best time for self-regulation and self- training. There are numerous benefits to those who are fasting during Ramadhan either from spiritual or physical perspectives. The positive effects of Ramadhan and fasting have not only been mentioned in al Quran and al Sunnah but also by many scientific researches. In fact, several institutions were established to promote fasting as a way to prevent and heal diseases such as “Fasting Center International Incorporation” in the United States of America. This brief article attempts to highlight several interesting findings about Ramadhan and Fasting effects from 4 different perspectives namely economic, health and sciences, psychological and social point of views.

2.0 Miracle of Ramadhan and Fasting

2.1 Economic Perspective

According to the study undertaken by the University of New Hampshire led by Iranian-born finance Professor Ahmad Etebari, stocks in largely Muslim nations outperform during the month of Ramadhan. It is found that on average, stock returns are 9 times higher during Ramadhan than other times of year. The phenomenon is called the “Ramadan Effect.”

Between the stock markets of Bahrain, Oman, Turkey, Kuwait, the UAE, Qatar, Pakistan, Jordan, Egypt, Morocco, Tunisia, Malaysia, Indonesia and Saudi Arabia, the report identified a trend of considerably higher returns during Ramadhan as compared to other months. The study found that the average returns for the 15 countries from the database of 1989 to 2007 were 38% during the month of Ramadhan as compared to an average of 4.3% during ordinary months. The research reveals that that the social cohesion and institutional feelings attains during Ramadhan help influence the investments behavior.

2.2 Health and Science Perspective

In 1994 the first International Congress on “Health and Ramadhan”, held in Casablanca, entered 50 research papers from all over the world from Muslim and non-Muslim researchers who have done extensive studies on the medical ethics of fasting. The congress made recommendations that Ramadhan fasting is an ideal method for treatment of mild to moderate, stable, non-insulin diabetes, obesity and essential hypertension.

Allan Cott, in his famous book “Why Fast”, states that fasting has the effects to clean out the body, to lower blood pressure and cholesterol and to let the body health itself. Another interesting finding refers to the ability of fasting habit to slow the aging process based on a research conducted by Dr. Yuri Nikolayev, Moscow scientist and dietician/nutritionist. This finding is supported with another research by Dr. Alvenia M. Fulton, by which his experiment indicates that fasting is the ladies best beautifier, brings grace charm and poise, normalizes female functions and reshapes the body contour.

2.3 Psychological Perspective

As regard to psychological point of view, it is empirically proven that fasting can bring positive effects to psychological and mental health. At this point, Dr. Sabah al-Baqir from Medical Faculty of University of King Saud reveals that fasting will generate specific hormone which may relieve tension and to make a person to feel better physically and mentally.

2.4 Social Perspective

2.4.1 Crime Rate

I believe that this is phenomenal in many jurisdictions all over the world. According to the statistic produced by the Iranian Police Department, the Iran’s overall crime rate and murder rate have declined during the holy month of Ramadhan. There has been a 32% decline in homicides and the overall crime rate has dropped significantly. It is worth noting that the homicide rate in Iran is six murders per day and Iran stands 50th in the world in the homicide rate.

2.4.2 Family Institutions

Ramadhan is the best time for family and social gathering. The Maktoob Research in UAE conducted a survey on the opinions of 6,128 adult Muslims from across the Arab world about Ramadhan. The survey reveals that 96% of Muslim Arabs observing the fasting month and it is also found that 86% of those surveyed tend to observe iftar as a good opportunity for family gatherings. This finding indirectly indicates that fasting during Ramadhan can strengthen the family institutions and community as well as provide best opportunity for the unity of the ummah.

2.4.3 Generosity

Considering to numerous hadith on the rewards and benefits of sadaqah (charity) during the month of Ramadhan, it is observed that the willingness and efforts for charity and donation are significantly increased. According to Lung Transplantation Research Center, National Research Institute of TB and Lung Disease, Tehran, Iran, organ shortage is the most significant problem that they face for the activities of transplantation systems. In this regard, they carried out a survey on the Muslims’ behavior during holy month of Ramadan pertaining to organs donation in Iran. Interestingly, the survey reveals that the number of applications for organs donation in Ramadhan increase to 154% as compared to other months with a total of 11528 organ donations as opposed to 4538 applications in the previous month. This phenomenon indicates that Ramadhan seems to provide a great opportunity to promote organs donation across the Muslim world.

3.0 Conclusion

Ramadhan is the greatest and best month of the year. It is one of the blessings of Allah to the Muslim that He enables us to fast in Ramadhan. The blessed month of Ramadhan and ibadah of fasting not only offer us with great rewards from Allah but also with so many benefits either from economic or health and science, psychological or social perspectives. With this priceless opportunity from Allah to us, it is hoped that we can keep the spirit of month of Ramadhan not only during this blessed month but at all times and throughout the year. InsyaAllah.

Zulkifli Hasan

Ireland is more faithful to the Quran than Saudi Arabia

The most faithful country in the world to the Qu’aran is Ireland, a report has found.

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While one would reasonably expect a majority Muslim country such as Malaysia or Saudi Arabia to top such a list, Ireland, Denmark and Luxembourg are all rated higher at following the Muslim holy text.

Hossein Askari, a Professor of International Business and International Affairs at George Washington University in the US was one of the two authors of the Islamicity index along with Scheherazade S. Rehman, told the BBC that the paper tracked how countries applied the lessons of the Qu’aran to societal life.

“We looked at whether or not the countries did what they were supposed to do.
“We looked at governance, political and human rights and international relations.”

The findings of the report showed that Ireland, the UK and the US all scored higher than every single member of the Organisation of Islamic Cooperation (OIC).

In fact, the OIC’s highest-ranked member was Malaysia at 33, while Saudi Arabia and Qatar are at 93 and 111, respectively.
Professot Askari says that the reason for the low ranking of Islamic countries is their governance.

There are people who use religion as a tool of power and a tool of legitimacy. They don’t care about the Muslim people. They don’t say you have to go out and learn the Qu’aran.

The teachings of the Qu’aran say that economic prosperity is good for society, but Askari’s report found that prosperity rarely trickles down in Islamic countries.

Zulkifli Hasan