La superación de los problemas ambientales de la CTE Carlos Manuel de

Despite these arguments against organised tawarruq,some contemporary scholars do consider it permissible, since the general rule of sales in Islam, stated in verse 2:275 of the Quran, reads, “Allah has permitted trade and has forbidden interest”.427

They hold that organised tawarruq is nothing but a combination of sales contracts, which each meet all the conditions of a permissible contract in Islam.428 According to this line of thinking, the intention of combining these contracts is irrelevant and does not affect the validity of the contract. However, the permissibility of an individual contract in Shari‘ah does not mean that the whole combination of transactions is permissible. For example, the majority of Shari‘ah jurists, including those who allow organised tawarruq, deem īnah contracts (double sales) as prohibited, although they are a combination of two sale contracts.429

Haneef 430 takes a more pragmatic approach than many supporters of organised

tawarruq. Although he seems to acknowledge a similarity between organised

tawarruq and ribā (usury),431 he does not think this is the right time to renounce organised tawarruq. Haneef believes that the OIC ban on organised tawarruq reflects Shari‘ah scholars’ dissatisfaction over the direction of the devolvement of the Islamic finance industry. Tawarruq opponents want to send a message to IIFS that they have to change the way they offer Shari‘ah-compliant products if they wish to comply with the objectives of Shari‘ah. Haneef explains that the lack of a physical link with commodities in organised tawarruq transactions have made them an easy target for critics. The commodity is used only as a means of getting income, so consumers do

427 _{Saheeh International, Translation Of The Meanings Of The Glorious Quran.}

428 _{See Dusuki, Can Bursa Malaysia Suq al-Sila' (Commodity Murabahah House) Resolve the} Controversy over Tawarruq?, p6; al-Ḥuwayṭī, "al-Tawarruq ḥaqīqatuh , Anwāʿuuh," p27.

429 _{AlShalhoob, "Organised Tawarruq in Islamic Law: a Study of Organised Tawarruq as Practised in}

the Financial Institutions in Saudi Arabia," p3.

430 _{Haneef, Is the Ban on "Organised Tawarruq" the Tip of the Iceberg?, p11.} 431 _Ibid.

91

not care if IIFS use copper, stock shares, or even airtime to structure their credit financing.

Haneef supports his argument with a statement from a leading scholar in the Islamic finance industry and a member of many SSBs, Sheikh Taqi Usmani,432 who notes that transactions such as tawarruq and murrabah were tolerated by Shari‘ah scholars forty years ago, at the dawn of the Islamic finance industry, who took into consideration the circumstances of these newly established IIFS and the unfriendly nature of the conventional financial system. The move was intended to facilitate Islamic finance and to give IIFS some ground in the market. However, Usmani points out that

it was not in the calculation of the jurists who ruled to permit these procedures that these institutions would sit contentedly satisfied with these way outs for an unlimited time, adopting it as the targeted goal for the establishment of Islamic banks and the basic activity, which centres around their dealings forever.433

Usmani argues that today, IIFS—with their market share—can offer Shari‘ah- compliant products which in actuality do comply with the forms and the objectives of Islamic law.434

Haneef,435 however, disagrees with Usmani and other tawarruq opponents. According to him, the Islamic finance industry is not yet mature enough to influence the financial system. Specifically, Haneef argues, the Islamic finance industry does not have enough market share to make a shift in the financial industry. Its global size is not large enough to adopt the ideal form of commercial financing in Shari‘ah, which is based on profit- and loss-sharing. To support his point, he436 cites the industry in Malaysia, where the government has been promoting Islamic finance since

432 _{Usmani, "Verdicts on At-Tawarruq and Its Banking Applications," p18.} 433 _Ibid.

434 _Ibid.

435 _{Haneef, Is the Ban on "Organised Tawarruq" the Tip of the Iceberg?, p15.} 436 _{Ibid., p16.}

92

1980. However, in 2009, the share of Islamic banking made up only 13% of the total banking market. With this small market share, IIFS have no power to drive consumers towards profit- and loss-sharing products or to pressure regulatory authorities to modify the financial framework to accommodate authentic Shari‘ah-compliant products.

Haneef asserts that IIFS are bound to stimulate the risk profile of conventional finance products.437 It is unrealistic for Shari‘ah scholars to think that IIFS, with their current market share, will be able to fundamentally shift consumers’ and regulators’ attitudes towards Islamic finance, let alone change the economic system from a debt- based system to a profit- and loss-sharing–based economy. Haneef contends that the pricing, along with the Shari‘ah compliance, is primarily what attracts consumers to Islamic finance. Islamic finance would lose its appeal if its price were higher than that of its conventional counterparts, which would be the case with the profit- and loss- sharing Shari‘ah products. Haneef believes that in order for the Islamic finance industry to survive, it must increase its share of the market even if its products are not in compliance with the ideal profit- and loss-sharing system of financing in Shari‘ah. Once IIFS control at least two thirds of the market share, they can move towards offering truly Shari‘ah-compliant products.438 _{Without gradually acquiring a huge}

market share, it would be impossible to shift to this ideal system.439

Furthermore, Haneef440 argues that if tawarruq has been used sensibly, it can benefit the community and fulfil its social needs. Without tawarruq, Muslim consumers will be forced to use conventional financing facilities. In addition, the harmful effects of tawarruq which Siddiqi described can also result from other

437 _{Ibid., p17.}

438 _{Ibid., p20.} 439 _{Ibid., p21.} 440 _{Ibid., p22.}

93

products, such as murābaḥah and ijārah, which are approved by some of the Shari‘ah scholars who oppose tawarruq. He also441 suggests that the misuse of organised

tawarruq should not be solved by banning it, but rather by means such as responsible marketing tactics, thoughtful credit approval, consumer suitability tests, and alternative saving plans. For instance, some IIFS take advantage of religious seasons such as Ramadan to launch their tawarruq marketing, encouraging consumers to accrue unnecessary debt and spend on luxury goods. Shari‘ah encourages Muslims to live within their financial ability and only use debt as a last measure for serious needs.442 Adopting the culture of “buy now and pay later” in IIFS marketing campaigns is not in line with the teaching of Shari‘ah, and Haneef urges that SSBs prevent such disjunctions by playing a role in guiding marketing policies of the Shari‘ah-compliant products they approve.443

In short, Haneef444 concludes that despite the ban on organised tawarruq, it is unlikely that the Islamic finance industry will soon find alternatives. Tawarruq

growth was primarily due to the fact that other alternatives were not feasible. The law in some countries, including those with Muslim majorities, was not developed to allow systems other than tawarruq. For example, in Saudi Arabia, regulators only chose the tawarruq structure out of many Shari‘ah-compliant proposals in order to finance a company-won telecom licence. Therefore, according to Haneef, tawarruq

will remain in use among IIFS.445 He recommends that critics direct their energies towards teaching IIFS about ethical marketing and consumers’ credit-suitability tests, and that academic Shari‘ah scholars and practitioners try to find practical solutions that will enable IIFS to gradually offer products based on equity-based models. Until

441 _{Ibid., p23.} 442 _{Ibid., p24.} 443 _{Ibid., p25-26.} 444 _{Ibid., p29-30.} 445 _{Ibid., p28.}

94

then, Haneef argues, IIFS should be allowed to offer tawarruq and to compete for a larger market share.

However, as this part of the chapter attests, Haneef’s argument is based in pragmatism rather than in Shari‘ah law. He seems to base his argument on two premises: that Islamic finance can only be applied within the banking domain, and that organised tawarruq is better than usury. Finding or assessing any alternative structures to organised tawarruq is beyond the scope of this chapter, which aims to provide a case study of creative Shari‘ah compliance, or indeed of this thesis. Nevertheless, I shall briefly discuss the second premise, since it is shared by some of the opponents of organised tawarruq.