How Does Shariah Compliance Work?


In his Budget Speech on Wednesday, 25 February 2009, Financial Secretary John Tsang devoted a whole paragraph, number 46 to be exact, to Islamic finance’s continued development in Hong Kong. To quote:

“To consolidate Hong Kong’s position as an international financial center, we will further develop and increase financial cooperation with emerging markets. Particular measures are needed to improve Hong Kong’s regime as a platform for the growing area of Islamic finance. Since most Islamic financial products’ structure involves the sale and re-purchase of assets, such transactions may entail tax liabilities in Hong Kong. Therefore, we plan to submit a proposal to the Legislative Council in 2009-10 to create a level playing field for Islamic financial products vis-à-vis conventional ones. The proposal will include changing or clarifying the arrangements for stamp duty, profits tax, and property tax.”

Shariah finance

Those great words are encouraging, at least for those promoting Islamic Finance and Hong Kong as a suitable financial center. Unfortunately, the measures now pointed out by the Financial Secretary as requiring change have been repeatedly indicated to the government since Chief Executive Donald Tsang first mentioned them in his Policy Address in 2007 but were continuously ignored by the concerned departments.

Consider the UK’s case to give you some idea of how long the process may take. Over the last five years, the United Kingdom has enacted the necessary legislation (similar to what is required in Hong Kong) to put Islamic Finance on the same footing as its conventional alternatives. And there, it was a conscious decision based on the notion that the UK could not afford to ignore this rapidly growing finance sector. It appears to me that this is not (yet?) the case in Hong Kong, where the advice and recommendations of locally resident Islamic Finance experts (and there are some!) are continuously ignored. If the required legislative changes take the same five years, Hong Kong will have lost out on this promising opportunity. I would expect the government to push the necessary legislative changes through the Legislative Council as soon as possible rather than only “looking at the proposals carefully,” a tendency that I have unfortunately witnessed too often and have now concluded is natural to the city’s civil service. Please, Mr. Tsang, be bold and take the plunge. Enact the required legislation as soon as possible. If you need advice on any additional changes, my email address is at the bottom of this article. The financial services industry will thank you for it!

Now that I have this let’s look at more basic Islamic finance issues. In my previous articles, you will have noticed that I continuously refer to “Shariah compliance.” The obvious questions are what this means and who decides what is and is not Shariah-compliant.

There are several source documents to turn to determine Shariah compliance (and this is where it gets a bit technical, but please bear with me). The first and foremost primary sources are the Holy Quran, the Hadith (the sayings of the Prophet Muhammad), and the Sunnah (the practices and traditions of the Prophet Mohammad). Secondary sources include Qiyas (analytical deductions and reasoning), Ijma (consensus of Shariah Scholars), and Ijtihad (legal reasoning) Genius Zone.

As you can see, quite a lot goes into the analysis. It requires extensive knowledge of Islam’s religious writings at the very least but would normally also include good working knowledge of the law. Therefore, the people who decide whether something is Shariah-compliant need to be conversant in all of these aspects of Islam. These experts, known as Shariah Scholars, get together in a Shariah Advisory Council. The Council members would review the evidence and then make a consensual decision based on their interpretation of the Islamic writings and the evidence before them.

There are differences in interpretation between various Islamic scholars, which can confuse the outside observer. There is considerable debate about creating common standards, but this is in the early stages and unlikely to succeed. Like in any other religion, there will always be differences, and maybe that is a good thing.

Recently, the complexities of the products, primarily financial products, that are being analyzed have added another dimension to the qualifications required. The Shariah Scholars also need to understand modern finance significantly. This latter condition, in particular, is quite challenging to fulfill, which is why there is a considerable shortage of suitably qualified Shariah Scholars globally. For interested parties, Hong Kong has its own Shariah Advisory Council, an integral part of the Arab Chamber of Commerce and Industry.