Seeking specific relief in cases of Islamic banking in Malaysia – an analysis

Abstract

Purpose

Often, the application of specific relief to Islamic banking is unspoken and unwritten. However, few studies suggest that legislation on specific relief needs amendment to cater for the effective application of Islamic banking and finance in the country and proposing the idea to introduce an Islamic Specific Relief Act. This paper aims to understand the application of specific relief to Islamic banking in Malaysia. This paper will look at the application of specific relief in Malaysia and discuss the extent of its application to Islamic banking cases reported in Malaysia from 1983 to 2015. The study will shed light on the general types of specific relief from Malaysian and Islamic law perspectives to conclude whether the provisions of Malaysian specific relief law invoked in courts in Islamic banking cases are in line with the general principles of Sharī^cah. To further support this, evidence from various commercial civil codes of Muslim countries have been discussed to analyse these provisions from a more practical perspective.

Design/methodology/approach

This is a legal exploratory study primarily focussed on library research.

Findings

When it comes to Islamic banking, federal legislations dealing with commercial matters are applicable. For example, in Islamic banking products, if the land is the subject matter, then National Land Code 1965 shall be applied, and when dealing with Islamic banking agreements, the provisions of Contracts Act 1950 shall be followed. This has been highlighted as a problem faced by Islamic financial services in the case of Tan Sri Abdul Khalid Ibrahim v. Bank Islam Malaysia Berhad and other cases where the judge referred Engku Rabiah and quoted that in Islamic banking transactions, “the transactions entered by the parties may be Sharī^cah-compliant in the first place, but upon enforcement of the contracts, the court may make orders and decisions that may side line the Islamic legal principles”. This happens when the substantive laws applicable to Islamic banking are incompatible with Islamic law. Fortunately, the analysis of the relevant sections of Specific Relief Act 1950 in this research proves that the provisions reviewed are in line with Sharī^cah. However, to further enhance the operation of specific relief, the granting of specific relief could be made a general rule rather than an exceptional rule available with stringent rules. The research revealed that Specific Relief Act (1950) is expressly referred and discussed only in three cases reported from 1983 to 2015. There are only two specific sections of Specific Relief Act (1950) that have been deliberated in the reported case law on Islamic banking: provisions related to granting of a mandatory injunction and specific performance of contracts.

Originality/value

It is anticipated that this paper will assist to comprehend the importance of converging law and Sharī^cah in legislations to attain Sharī^cah compliance and will help to realise that not all conventional legislations are Sharī^cah non-compliant.

Citation

Muneeza, A. (2018), "Seeking specific relief in cases of Islamic banking in Malaysia – an analysis", International Journal of Law and Management, Vol. 60 No. 2, pp. 325-341. https://doi.org/10.1108/IJLMA-10-2016-0089