Resolutions of the Securities Commission Shariah Advisory Council

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(a) Illustration or reflection of shadow; and Shariah Criteria for Listed Securities (b) Personality or character of a person as portrayed and seen from another person or perception of others. This means that image is a mental picture or perception of others on a certain matter. In Arabic, image is “surah zihniyyah” which means mental picture. 368 The understanding of image in the context of fiqh is vague. However, it can be defined as the Shariah’s view on a certain matter because one’s perception or mental picture towards something is meaningless from the aspect of law if it is not based on Shariah law. As such, it is important to differentiate between views based solely on perception and views based on the Shariah. According to Yusuf al-Qaradhawi, the focus of man-made laws is to fulfil the needs of mankind solely based on their culture and way of life. It does not matter whether the culture and way of life deviate from the human code of ethics or one that may jeopardise mankind. On the other hand, the focus of Shariah in formulating certain rules or laws is to place importance on the welfare of the people by avoiding all negative elements of the society, such as a culture that leads to destruction, freedom based on sexual desire, self-interest which may harm others, etc. 369 Fundamentals of Shariah Assessment on Image Analysis Studies on image have a close relationship with those on mixed companies. This is because most of the resolutions on the image of activities are categorised under activities of mixed companies. This means that the Shariah principles used in assessing mixed companies are also used as that for image analysis. Perhaps there are several additional principles which are more relevant to the studies of image. Among the Shariah principles that are used in the studies of image are as follows: 368 The Concise Oxford English-Arabic Dictionary, Edited by N.S. Doniach, Oxford University Press, 1982. 369 Yusuf al-Qaradhawi, Madkhal li Dirasah al-Syariàh al-Islamiyyah, p. 104. 167
Resolutions of the Securities Commission Shariah Advisory Council Principle of maslahah rajihah Maslahah rajihah is the main factor of consideration by the SAC in their analyses of mixed companies. The measurement of maslahah, which has been the guiding principles for Islamic jurists in ascertaining that Shariah law is implemented in all fairness, is guided by maqasid Shariah. Among the principles which form the core of maslahah as stipulated by Islamic jurists is hifz mal (preservation of assets). The question of hifz mal is one of the masalih dharuriah 370 which must be given top priority. The question of economic integrity and robustness is one of the “survival” factors for the Muslims. At the same time, there is a need to be wary of tahrib mal almuslim efforts by those who are envious of the economic solidity of the Muslim community. The importance of safeguarding the economy is one issue that is demanded by the Shariah. The strength of the community is closely related to the stability and the strength of economic power of the community itself. As such, Islamic jurists are of the view that if the Muslim community is poor and weak, the demand for other dharuriyat will be affected or mortgaged due to the Muslim community’s weakness to uphold the sovereignty of their economy. 371 Principle of sadd zariàh Sadd zariàh is among the methods acceptable and used by some Islamic jurists. In fact it was made as one of the important principles by Maliki Mazhab in determining certain laws. The meaning of zariàh is “an issue of which on the exterior is permissible but there is great possibility it is involved in issues prohibited by Shariah”. 372 The tazarra` method as debated by Islamic jurists is divided into two sections. The first section refers to paths or ways that are expected, whether compulsory, optional or permissible. In this context, it is called “fath zariàh” or paths which are open and permissible. The second section refers to paths which will lead to adversity and things that are prohibited. This second path becomes the basis for Islamic jurists of the Maliki Mazhab in determining the law. 370 Al-Syatibi, al-Muwafaqat, vol. 2, pp. 8–10. 371 Masùd al-Yubi, Maqasid al-Syari’ah al Islamiyyah, pp. 283–284. 372 Mahmud Uthman, Qaìdah Sad al-Zarai’i`, p. 62. 373 Al-Sanàni, Subul al-Salam, vol. 3, p. 831. 168
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Two: Qabadh Hukmi or Qabadh Ma`nawi
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Resolutions of the Securities Commission Shariah Advisory Council

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