Muhammad bin Ibrahim: The polemics of governing law in Islamic finance – recent developments and the way forward Keynote address by Mr Muhammad bin Ibrahim, Deputy Governor of the Central Bank of Malaysia, at the International Shariah Research Academy for Islamic Finance–Institute of Islamic Banking and Insurance (ISRA-IIBI) 2nd Annual International Thematic Workshop 2010: “The Polemics of Governing Law in Islamic Finance”, London, 29 November 2010. *  *  *  Let me first thank the organizers for inviting me to speak at this ISRA-IIBI 2nd Annual International Thematic Workshop 2010. Although I very much regret not being able to be in London in person, I am thankful for the many advances of modern technology for the opportunity to briefly address all of you this morning. I am also happy to note that this event is a continuation of international collaboration between the organizers, the International Shariah Research Academy for Islamic Finance (ISRA), the Institute of Islamic Banking and Insurance (IIBI) and Thomson Reuters, following the success of the inaugural workshop held last year. The theme of this year’s workshop, “The Polemics of Governing Law in Islamic Finance: Recent Developments and the Way Forward”, is most apt. With the emergence of Islamic finance as a new growth area in the global financial landscape, this Workshop provides an excellent forum to exchange views and information on topical legal issues in Islamic finance.
The starting point in revising laws is therefore to ensure that the governing laws allow for the conduct of Islamic finance business. A closely related goal is to consider removing elements in existing laws, including the non-regulatory laws, which may render the conduct of Islamic finance business uncompetitive or inefficient. Initial considerations would involve changes to ensure that Islamic finance is placed on a level playing field with conventional finance. The purposes and objectives of the governing laws for Islamic finance are known to be largely similar to conventional finance from the financial regulation standpoint. Notwithstanding this, an ideal approach is devising a legal framework for Islamic finance that sanctions the statutory obligations for Shariah compliance in the governing law. This approach however, may not be feasible as preference for religions concerns can be seen to be contradictory to the principles of secularism and parity of beliefs rights in certain jurisdictions. We may need alternative approaches. I will revisit and elaborate on these points in greater detail at a later part of this speech. In Malaysia, the new Central Bank of Malaysia Act 2009 explicitly codifies the duality of the Malaysian financial system which shall consist of the conventional financial system and the Islamic financial system. In this regard, Malaysia has taken the approach to enact regulatory laws that are, at least for banking and takaful (Islamic insurance) industry, separate from conventional finance as the legal foundation for the conduct of Islamic finance business.