Islamic Finance Cases

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Arab Malaysian Merchant Bank v Silver Concept [2006] 8 CLJ 9 Suriyadi Halim Omar J.– With the above mind-boggling minefield awaiting lawyers and judges alike it is small wonder that the Syariah Advisory Body has been mandated to be formulated. It is when rulings are required that the latter body must give its opinion. Under the above new s 16B of Act A1213, the Syariah Advisory Body appears to have a rather wide scope or referral, and not merely confined to the issue of whether the matter at hand involves any element which is not approved by the religion of Islam. Needless to say the final say must rest with the presiding judge (see s 16B(9)(a)).
Arab Malaysian Merchant Bank v Silver Concept (2008) 6 MLJ 295 Wahab Patail J.: It was submitted for the plaintiff that the SAC had determined that the BBA complied with the Shariah and once the determination is made on the issue of Shariah compliance by the said SAC any question on their said determination can be referred to the SAC. Section 16B of the CBA 1958 however does not make reference mandatory. It clearly did not intend the SAC in the executive branch of government to be the judicial authority. Thus, its rulings are binding onlyupon the arbitrator where reference is made by an arbitrator. In the case of reference by the court, the ruling is not binding but shall be taken into consideration. Given that reference is discretionary and the rulings are not binding, and taking into consideration the issue is not as to the Shariah compliance of the ABBA facility but the interpretation of its terms, the court is of the opinion reference is not necessary.
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Islamic Finance Cases

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