P L d 2000 s c 225 (Riba prohibition stayed)
Yüklə 2,28 Mb.
|
|
Q.4. Is there any difference between a M_ uslim and a non-Muslim in the matter of prohibition of Riba? Can the prohibition of Riba be extended to the loans obtained from non-Muslim, or for that matter, from Muslim foreign countries whose laws and national policies, together with international monetary laws and policies, are not within the control of the State of Pakistan?
Q.5. The Government of Pakistan and some institutions under its control acquire loans by issuing bonds and certificates etc. and pay a fixed period-wise `profit’ to the holders of such securities. Does this profit fall within the definition of Riba?
Q.6. It is evident that the value of the paper currency has a trend of decrease in the inflationary situation. If a debtor who has borrowed a particular amount of paper currency repays the same amount to his creditor after a substantial time, the creditor can suffer the effects of inflation. If he demands his debtor to pay more in order to compensate him for loss of value he has suffered, can this demand be treated as a demand of Riba?
Q.7. If all the forms of interest or mark-up are held to be repugnant to the Islamic Injunctions, what modes of financing do you suggest for: (a) financing trade and industry; (b) financing the budget deficit; (c) acquiring the foreign loans; and (d) similar other needs and purposes?
Q.8. If you are of the view that all the forms of interest are prohibited by Shariah, then what procedure will you suggest for eliminating it from the economy? If you prefer a gradual process, what strategy do you suggest for the purpose which may fulfil the requirements of the Holy Qur’an and Sunnah?
Q.9. If all the transactions based on interest are held to be violative of the Islamic Injunctions, what will be the treatment of the past transactions and agreements? Especially what procedure should the Government adopt with regard to the previous foreign loans?
Q.10. Whether a creditor can fix time and rate of profit while the debtor saying Insha Allah, he will be liable to earn and pay the same in time; failing which the guarantor may give profit asked for plus also a bonus or compensation for delayed payment, if any, also according to other arrangements regarding the loan What will be the position if the system of insurance for the said profit is introduced?”
Following Ulema, Scholars and Economists, amongst others, submitted written answers to the Questionnaire issued by this Court:--
(1) Mr.Sartaj Aziz, the then (at the time of submission of replies) Minister for Finance and Economic Affairs, Government of Pakistan, answering the Questionnaire in his capacity as an expert and not in his official capacity as Finance Minister, as it was stated that the response of the Government of Pakistan on the Questionnaire involved is to be submitted to the Court by the Attorney General.
(2) Islamic Development Bank, Jeddah.
(3) Prof. Khurshid Ahmad, Institute of Policy Studies.
(4) Dr.Ziauddin Ahmed, Karachi.
(5) Mr.Zafar Ishaque Ansari, Director-General, Islamic Research Institute; International Islamic University, Islamabad.
(6) Dr.Nawazish Ali Zaidi, Rawalpindi.
(7) Dr.Arshad Zaman, Karachi. .
(8) Mr.Abdur Rauf Sheikh, Lahore.
(9) Prof. Dr. Muhammad Najatullah Siddiqui, International Islamic Economics Centre, Malik Abdul Aziz University, Jeddah.
(10) Mr. Alsiddique Muhammad al-Amin, Teacher, Al-Shariah Al Islamia Law Department, Khartoom University, Sudan.
(11) Report containing answers prepared under supervision of Prof. Dr. Jamila Shaukat, Dean, Faculty of Islamic and Oriental Learning, University of the Punjab, Lahore.
In addition to the above answers/opinions, different individuals and organizations addressed letters and sent material containing their views on the question of `Riba’ which shows keen interest of the people in the matter. It is neither possible nor appropriate to mention the views so expressed by everyone of them. However, material sent and the views expressed by the prominent scholars and writers have been thoroughly examined. They have, in the material sent by them, dealt with the issues relevant to the question of elimination of `Riba’. The following scholars have sent the material, books or copies of their published articles:--
(1) Syed Maroof Shah Shirazi, Shariah Academy, International Islamic University, Islamabad.
(2) Mr.Anwar Ahmad Minai, Karachi. (3) Syed Naseeb Ali Shah, Nazim Majlis-e-Fiqhi, Jamiat Ulami Pakistan.
(4) Mr.G.M. Saleem, Advocate, Karachi. (5) Mr. Mehmood Ashraf, Chartered Management Accountant, Karachi.
(6) Mr.Abdul Moin Ansari, Latifabad, Hyderabad. (7) Prof. Dr. Muhammad Tahir ul Qadri, Lahore.
(8) Dr. Attaullah Khan Niazi, Economic Expert. (9) Mr.Abdul Hafeez Khokhar, Advocate.
(10) Mr. Aqdas Ali Kazmi, Chief/Director Tax Policy, Central Board of Revenue. (11) Mr.Aurangzeb Haque.
(12) Prof. Ziauddin Ahmad.
Besides learned counsel for the parties, the following Scholars. Economists and Bankers appeared and made their submissions:--
(1) Dr. Syed Muhammad Tahir, International Islamic University;
(2) Dr.Waqar Masood Khan, Director-General, (Planning), International Islamic University, Islamabad;
(3) Mr.Abdul Jabbar Khan, former President, National Bank of Pakistan;
(4) Dr.Umar Chapra;
(5) Mr.Ibrahim Sidat;
(6) Dr.S. Muhammad Hussain;
(7) Dr.Irshad Zaman, Chartered Accountants/Economists;
(8) Mr. Maqbool Soomroo;
(9) Dr.Shahid Hasan Siddiqui, Eeconomist;
(10) Mr.Abdul Wadood Khan;
(11) Hafiz Abdul Rehman Madni, Chairman, Islamic Research Council, Lahore;
(12) Dr.Aslam Khaki, Advocate, Islamabad;
(13) Prof. Khurshid Ahmad;
(14) Mr.H.U.Beg (Retired Finance Secretary, Government of Pakistan);
(15) Prof. Syed Nawaz Haider Naqvi;
(16) Mr. Muhammad Yahya (Deputy Secretary-General, Mutahida Ulema Council of Pakistan);
(17) Maulana Gauhar Rehman;
(18) Mr. Iqbal Khan (Foreign Expert--Managing Director, Global Islamic Finance; HSBC Investment Bank Plc, United Kingdom);
(19) Dr. Ahmad Muhammad Ali (President, Islamic Development Bank, Jeddah) alongwith his delegation namely, Mr.Muad Ali Umar (Vice-President, I.D.B.) Dr.M.Alfatah (Legal Adviser I.D.B.) Mr.D.M.Qureshi (Adviser Treasury, I.D.B.) Mr.Muhaad Al- Jehri (Director, I.D.B.), Dr.Hussain Hassan (Head of Shariah Board, Dubai Islamic Bank) and Mr.Adnan A1 Bahr, Managing Director and Chairman, International Investment Company, Kawet);
(20) Mr.Ismail Qureshi, ASC;
(21) Mr. Faheem Ahmad (Marketing Coordinator, Financial Research and Analysis Credit Rating Company Ltd., Pakistan, Karachi);
(22) Maulana Abdul Sattar Niazi;
(23) Mr. Khalid M. Ishaque, Senior Advocate, Karachi.
The impugned judgments were examined with the assistance of the then learned Deputy Attorney-General Maulvi Anwarul Haque. A scrutiny of the main impugned judgment would show that opinions of experts, bankers and Ulema as expressed before the learned Federal Shariat Court are contained in paras. 22 to 32 thereof. In their view, time related fixed monetary return on a loan, however, conceived or planned, is to be considered as Riba prohibited in Islam; that there is no difference between the consumption loans and productive loans so far as the prohibition of interest in Islam is concerned; that the bank interest comes within the definition of ‘Riba’; and that Musharakah and Mudarabah arc workable systems for interest-free banking. Two former Vice-Presidents of UnitecE Bank Limited and Habib Bank Limited appearing before the learned Federal Shariat Court expressed the opinion that there is no distinction whether the addition on the capital sum of loan is based on simple interest or on compound interest, as any increment in money capital in respect of nothing but time is ‘Riba’. They and the other experts were further of the view that Mudarabah and Musharakah are viable alternatives to the banking system. They suggested restructuring of the banking system according to the Report submitted by the Council of Islamic Ideology on the Elimination of Interest from the National Economy to 1980 as well as the Reports of the Permanent Commission for the Islamization of Economy submitted in 1988 and in the later years. They are further of the view that the interest on loans floated by the Government to meet the national requirements also falls under ‘Riba’ and is prohibited, These experts expressed the opinion that the devaluation or inflation of currency would not affect the payment of loans taken before such devaluation or inflation as long as the loan was repaid in that very currency particularly when the parties to the loan transactions operate in the same currency area. Devaluation of a currency is generally directed at its value in relation to foreign currency, though this may and often does affect its purchasing power at home, especially with reference to imported goods Experts were clear that in domestic borrowing the borrower, whether an individual or the Government shall pay back the same amount which was borrowed with no increase on any pretext because the inflation causing rise in cost and value of gold and consumer goods in terms of currency is the result of circumstances beyond the control of the borrower and he cannot be held to be personally responsible for the loss of purchasing power to the lender. These experts were also of the view that interest-based transactions between two Muslim countries or between a Muslim and a non-Muslim country is not permissible because the Qur’anic prohibition of Riba is absolute and does not permit any such exception. Some of the experts, however, conceded that in cases of extreme necessity recourse to interest based borrowing or dealings may be ,permissible as far as international transactions with non-Muslim countries are concerned. Most of the experts were of the view that insurance business can be easily Islamized as according to Dr. Hasanuzzaman, Islamizing insurance business is much easier to Islamize than the banking system. In this context reference was made by several experts to the Takaful system developed in Malaysia and Islamization of insurance experience in Sudan. The experts, however, differed in their opinion whether the interest accruing on the Provident Fund comes under Riba or not. Some Ulema and scholars, relying on the views of late Mulana Mufti Kitayataullah and late Maulana Ashraf Ali Thanvi and Maulana Ahmad Raza Khan Barelvi, held that the interest on Provident Fund was not Riba. On the other hand, according to most of the bankers and economists such interest absolutely falls under the category of Riba. There was no dispute among the scholars, experts and Ulema that the payment of prizes on Prize Bonds and saving bank accounts and other schemes falls under the category of Riba. There appears also a unanimity of the view that in Shariah there is no difference between interest charged on personal loans and the interest charged on consumption loans. Some scholars provided historical evidence in their respective answers to show that commercial and productive loans were not only known in pre-Islamic Arabia but the Riba prohibited by the Qur’an was charged mostly on commercial and productive loans. There was also unanimity of views that interest is no incentive for saving as people save for many reasons other than the desire to make more money. They save for their children; they save for their own old age; they save to meet possible contingencies; they save for many other reasons. Savings were made when the banks did not exist. Savings are made by those who do not take interest on their savings and do not accept any return on their holdings. However, the Shariah modes of financing will replace the interest and will continue to serve as an inducement for saving.
The contentions of the learned Advocates for the parties have been summarized in paragraphs 34 to 54 of the main impugned judgment. The contentions of Mr.Khalid M. Ishaque, noted in paragraph 38, inter alia, are that there is considerable juristic opinion available to the fact that an increase to offset the inflation has legal justification and cannot be counted as Riba; and that there is juristic opinion available to meet the fact that Bank interest does not fall in the category of prohibited Riba as the Banks participate in the productive process, make productive labour possible, increase social wealth and take only a fraction of the profit that accrues to them which is not Riba.
The contentions urged and the issues raised by Mr. S.M.Zafar, appearing for the Banking Council and the Federation were noticed in paragraphs 48 to 53 and 130 to 133 of the main impugned judgment. As regards contention that ‘Riba’ falls within the area of ‘Mutshabehat’, learned Judges of the Federal Shariat Court discussed the meaning of ‘Mutshabehat’ in the Qur’an and concluded that ‘Riba’ did not fall under the area of ‘Mutshabehat’ and its prohibition was clear and expressed. The literal and technical meaning of ‘Riba’ in paragraphs 65 to 129 was discussed and elaborated. A number of definitions of ‘Riba’ given by the earlier writers on Islamic Law as well as the relevant Qur’anic verses (Ayats) and Ahadis of the Holy Prophet (p.b.u.h.) have been noticed in the impugned judgment to answer the question whether the interest on commercial loans falls under the category of Riba and the view recorded is that the purpose for which a loan is advanced does not create any distinction as far as the prohibition of ‘Riba’ is concerned. The misgivings expressed by certain quarters have been dealt with in paragraphs 134 to 139 of the main impugned judgment. The concept of public policy (Maslaha) and its impact on the legality or otherwise of the bank interest has been discussed in paragraphs 140 to 152 of the main impugned judgment and it was concluded, after quoting the well-known authorities on Islamic Law and Jurisprudence such as Imam Ghazah that the rule of public policy (Maslaha) cannot be invoked in support of the plea that bank interest should be permissible. The questions of inflation and indexation have been examined in detail in paragraphs 153 to 168, 174 to 177, 198 to 205, 212 to 221, 226 to 234 of the main impugned judgment. It is pertinent to note that while discussing the question of indexation the question of coins or fulus and their legal status and allied questions have been dealt with in paragraphs 169 to 173, 189 to 196, 206 to 211, 225 and 226 of the main impugned judgment. Important rules governing loans and credit and the fact of coins becoming stagnant or the value of the currency getting depreciated or devalued have been discussed in paragraphs 178 to 197 of the main impugned judgment. The examination of the laws impugned before the Federal Shariat Court is to be found in paragraphs 234 to 354. The subject of previous and existing contracts and obligations has been dealt with in paragraphs 355 to 365 and the discussion on the excuses/reasons advanced on the basis of international situation is contained in paragraphs 366 to 378. This completes the survey of the main impugned judgment in these appeals.
At this stage it would be appropriate to give a comparative statement quoting question-wise opinion/answers submitted by Mr.Sartaj Aziz who was, at the time of filing of replies, Finance Minister, though the said opinion was given in his personal capacity, but as it is representative of the view-point of the opinions expressed by one shade of Economists/ Scholars, as well as the answers/opinions submitted by Islamic Development Bank, Jeddah, which represents the views/opinions of the opposite group of scholars/economists, are being reproduced hereunder:---
The Holy Qur’an has prohibited ‘Riba’. What is meant by this term? What is its true definition and connotation in the light of the Holy Qur’an and Sunnah of the Holy Prophet (p.b.u.h.)?
Reply of Mr. Sartaj Aziz
RIBA: There is no doubt that the Holy Qur’an has prohibited Riba. The term Riba has been variously defined by different schools of thoughts. There is need for an authoritative definition of the term ‘Riba’.
In Arabic language ‘Riba’ means an increase but every increase, on money lent does not automatically become Riba. In order to come within the term Riba, such return would have to reflect exploitation of the borrower by the lender.
Any form of exploitation is repugnant to teachings of Islam and that includes exploitation of the lender by the borrower. The lender has been permitted in Qur’an to receive back the principal sum (pas-al-Mal). The introduction of paper currency has made it difficult to protect the real value or purchasing power of money. Inflation systematically and continuously erodes the purchasing power of paper currency and, therefore, it would be unfair to the lender if the borrower were to return the same amount of money, with reduced purchasing power to the lender after a period of time. This would amount to exploitation of the lender by the borrower. If the principle of protecting the value or purchasing power of money is accepted, then any payment which is made in addition to the principal amount, in order to compensate for the fall in value, cannot be termed excess or `Riba’.
In its decision No.3 for 1406H, the OIC Fiqh Academy defined the Sharia’h prohibited Riba.
Question No.2
What is the true scope of the transactions to which the bar of Riba is applicable? Can the term Riba be also applied to the commercial or productive loans advanced by the banking and financial institutions and to the interest charged thereon?
Reply of Mr.Sartaj Aziz
Interest charged by banks and financial institutions has three main elements;
(a) Compensation for the loss of purchasing power in the value of money. In most countries, the rates of interest prevalent for banking transactions closely follow the rates of inflation;
(b) Charges for services rendered. In addition to providing loans, the Banks generally render a wide range of services to their clients; and
(c) Some return or profit on the amount lent. A portion of this, in turn, is passed on to depositors who keep their money in Banks.
Each of these components can be estimated and charged separately but in practice these are averaged in the light of prevailing trend and revised periodically in response to the demand and supply of money in the market.
If the principle of protecting over time, the real value of money advanced by a bank as loan, is accepted, then interest charged by banking and financial institutions in Pakistan to that extent should not come within the definition of Riba.
Interest charged by Banks is also controlled directly or indirectly by the Central Bank. In Pakistan, this function is performed through State Bank of Pakistan which takes into account several factors of national importance i.e. need to control inflation, sustained economic growth and orderly monetary expansion. If the principles are judiciously observed, there will be no element of exploitation of the borrower by banks and financial institutions.
For an answer to this question, Decision No.3 for 1406H of the OIC Fiqh Academy should be consulted.
Question No. 3
The Pakistani banks and some financial institutions finance their clients on the basis of buy .back on mark-up agreements. According to this method the client of the Bank purports to sell a particular commodity to the bank, and simultaneously buys it back on a higher price on deferred payment basis. A certain rate of mark-up (per cent. per annum) is applied to the second sale. Does this arrangement fall within the. ambit of Riba?
As regards buy-back and mark-up, the Federal Shariat Court has ruled that the system of mark-up, as in vogue in Pakistan, is repugnant to the Injunctions of Islam (Para. 262 of the judgment).
The mark-up system is based on the well known Islamic concept of Bai Maujjal which is accepted by all Fiqahs as permissible. After the Federal Shariat Court Judgment, and, taking into account the observations of the Shariat Court, the Commission for Islamization of Economy appointed a Working Group to review the existing practices. They have now come up with recommendations for modifying the system. Under the revised system, banks will not buy the goods from the customer and sell them back to him. The bank will finance transactions where the customer intends to buy goods from the market (including import from foreign countries. He will provide a list of the required goods to the bank and the bank will purchase and supply them to the customer on deferred payment (Bai ffuajjal) basis. The price at which the bank sells the goods to the customer on deferred payment will be worked out on cost-plus or marked up basis. Under the proposed system the objections raised by the Shariat Court will be rectified as there will be no sale of goods by the customer to the bank and its buy-back from the bank by the customer as in the present practice.
Yüklə 2,28 Mb. Dostları ilə paylaş:
|