According to the Malaysian central
bank, the primary objective of the SGF is to enhance “the role of the
board, the Shariah committee and the management in relation to Shariah
matters, including enhancing the relevant key organs having the
responsibility to execute the Shariah compliance and research functions
aimed at the attainment of a Shariah-based operating environment.”
One
prominent international Shariah advisory to the Islamic finance
industry, Muhammed Elgari of Saudi Arabia, who sits on several Shariah
committees of such organizations as the Bahrain-based Accounting and
Auditing Organization for Islamic Financial Institutions (AAOIFI), the
Dow Jones Islamic Market Indexes, and a number of banks, agrees that
Malaysia’s Shariah Governance Framework for IFIs could become a
blueprint for other countries to follow.
In an exclusive interview
with the author, Elgari stressed that he can see the need for such a
framework, which “most certainly” can be developed into a blueprint,
even though he has yet to study the full details of the SGF.
Shariah
advisory has been in the news in recent weeks following reports that
the AAOIFI is in the process of drafting rules to regulate the
shareholdings and the number of supervisory boards individual Shariah
advisories can sit on. Market players have long been concerned by the
small pool of experienced Shariah advisers serving the Islamic finance
industry and that an elite few sit on multiple Shariah advisory boards, a
practice which they claim could lead to conflicts of interest and is
not consistent with best practice in terms of advisory.
Research
by entities such as Funds@Work have added fuel to the fire, although the
methodology of the research is not very detailed and transparent.
According to Funds@Work, there are 1,141 overall Shariah advisory board
positions available in 28 countries. The average board size is 3.33
scholars per board, across the entire universe. Perhaps more
importantly, the Top 10 scholars hold 450 out of 1,141 board positions
that are available and represent 39.44 percent of the universe. Two
Shariah advisories sit on a staggering 85 boards while another on 79
boards.
Some of the top Shariah advisers, not surprisingly, have
reportedly spoken out against any efforts to restrict their trade by
restricting the number of boards on which they can sit.
“There is
no justification in my mind to single out a profession to set rules that
are not applied to any other. There is no dispute about the fact that a
human being does have a limited capacity or let us say a finite one.
But this can’t be measured by the number of boards. The real test is
quality of work and ability to meet the expectations of the other party.
It should be self evident that if one lacks both, it will not help him
to have a limited number of boards,” said Elgari.
Elgari, who also
has a doctorate in economics from the prestigious University of
California in Berkeley, dismisses any suggestions that Shariah
advisories “make too much money” and “they are monopolizing the trade”
which he maintains are both lies and naive.
In his experience,
none of the banks and organizations he serves as an advisory have
expressed any concerns to him about the above issues. In fact, his
relationship with his clients remains cordial and commands the utmost
professionalism. As such, these supposed concerns are a smokescreen and
are really serving the agenda of certain groups who are keen to get a
slice of the Shariah advisory business in Islamic finance.
“What
is being observed lately is that certain groups want to intermediate
between banks and Shariah scholars. In other words they would like to
‘broker’ the Shariah advisory and they believe, correctly, that their
negotiating power with the banks is much stronger than individual
scholars. Hence they can extract much more from banks. They tell us why
should you be concerned, you will not suffer any reduced income
(negating the very argument that we make too much). But in principle we
do not see it fitting to create an exchange where we sell our services
to someone to sell them to a third party at a higher price,” he said.
Elgari,
who is one of a very few number of foreign Shariah advisories
registered with the Securities Commission Malaysia to give Shariah
advisory to the Islamic finance industry in the south east Asian
country, maintains that nobody is more concerned about bringing up the
second generation of Shariah scholars in the global Islamic finance
industry than the current scholars. As such, it is wrong to think that
they are threatened by the thought of restrictions and regulation.
“On
the contrary our nightmare is for Shariah boards to disappear when we
cease to exist. We always request institutions to include in their
Shariah board a younger scholar so that the next generation is brought
up by the current generation. Recently, we met with the officials from
the Waqf Fund (set up by Central Bank of Bahrain) to try to design a
program that can be adopted by an academic institution for this
purpose,” he said.
Some observers, including regulators, invoke
the “conflict of interest” argument to support their desire to restrict
the number of boards Shariah scholars can sit on. Elgari in fact
believes this is a fair concern and in several instances he has
emphasized that Shariah board members should be conscious of it and try
to avoid it. He confirms that in several instances he was offered shares
in companies he was giving Shariah advisory but he has always declined
because he was always aware of a potential conflict of interest. He
suggests greater transparency by fellow Shariah advisories, especially
in showing their awareness of the issue of potential conflict of
interest.
For Elgari, who has also been an economics don at King
Abdul Aziz University in Jeddah for many years, the contemporary Islamic
finance industry has witnessed over the last three decades the
emergence the birth of a new discipline, which combines Shariah,
economics and law. “Unless universities recognize this as a new
discipline, not much will be done by them. If these professors
themselves can’t do it, how can they teach it? The most effective way is
apprenticeship, or a program for study designed by the current Shariah
scholars,” he said.
The fact remains that the Shariah governance
process in Islamic finance has been steadily evolving and gaining
maturity. Last year, for instance, Elgari was the first prominent
scholar to emphatically call for a scientific approach to Shariah
compliance. This follows a similar call by another prominent Shariah
scholar, Sheikh Esam Ishaq of Bahrain, that Shariah advisories serving
the Islamic finance industry should be regulated.
Elgari then
called on fellow Shariah advisories to adopt a scientific methodology in
reaching their deliberations on Islamic finance. “To be respected,”
said Elgari, “Shariah scholars should follow scientific methods to reach
their conclusions. We have seen many mistakes where declarations have
been issued. Only the correct resolutions will prevail. Shariah is not a
group of infallible people. It is a science. It requires methodology,
and resolutions require peer review and market consultation.”
He
is also a big supporter of the codification of Fiqh Al-Muamalat, which
could contribute immensely to clarifying the rubrics and the contentious
issues relating to products and services in the nascent Islamic finance
industry. Similarly, he believes that greater transparency in the
Shariah governance process; more professional articulation of the
resolutions and statements; and prior debate and consultation between
scholars and other stakeholders in the industry, could go a long way in
mitigating the misconceptions and confusion that has arisen as a result
of some recent Shariah rulings.