Litigation as dispute resolution mechanism in Islamic finance: Malaysian experience

摘要

Litigation as the popular mode of dispute resolution in Islamic finance has proven inadequate in its application and interpretation of Shariah. Trails of Islamic finance cases have shown that civil court judges have no problems deciding on the civil law issues pertaining to Islamic finance, however, they are unsuited for adjudicating the Shariah issues. Section 55-58 of the Central Bank Act 2009 accords formal recognition to the Shariah Advisory Council (SAC) as their rulings is binding to the Islamic financial institutions and the courts. Post 2009 have seen that cases of law challenged the said sections as unconstitutional. The objective of this paper is to analyse the role of SAC either as expert ascertain or expert determination of the rulings on Islamic finance. In the course of discussion, s. 55-58 of Central Bank of Malaysia Act 2009 and Article 121(1) of the Constitution are analysed. Findings of the study showed that the role of SAC is merely expert ascertain of the rulings since they have no judicial power. Islamic financial law is divine in nature and different from the man made laws.