Journal of Islamic Banking and Finance

December 2017, Vol. 5, No. 2, pp. 30-36

ISSN 2374-2666 (Print) 2374-2658 (Online)
Copyright © The Author(s). All Rights Reserved.
Published by American Research Institute for Policy Development
DOI: 10.15640/jibf.v5n2a5
URL: https://doi.org/10.15640/jibf.v5n2a5

Issues with the Use of Tawarruq in Malaysia

Habeebah Simisola Fa-Yusuf1&Ndeye Djiba Ndiaye2

Abstract

Tawarruq as one of the most commonly used financing products by Islamic banks has been faced with a lot of
criticism. One of these criticisms is that it is used to circumvent interest. This paper assesses these criticisms in
the light of current practices in Malaysia. Our methodology is qualitative and specifically involves explanatory
design. Our findings reveal that the current practice of Tawarruq in Malaysia is faced with a lot Shari’ah
compliance issues.

Keywords: Tawarruq, Commodity Murabahah, Malaysia, Shari’ah compliance

1. Introduction
On July 1, 2016, the IFSB released the result of its study on the composition of Islamic bank financing in 17
member countries including Malaysia. Of these, commodity Murabahah/Tawarruq took the second largest share
(15.6%) second only to Murabahah which accounted for over 40% (IFSB, 2016). These statistics show the importance
the Islamic finance industry places on Tawarruq. With the widespread usage of Tawarruq in countries such as Malaysia
comes certain issues. Ethica, one of the Islamic Finance industry’s leading training service providers, cites Tawarruq as
one of the reasons that customers doubt the credibility of Islamic Finance (Globe Newswire, 2014). Tawarruq as
currently practiced by Islamic banks is very controversial. Modern practices have evolved, diverting from acceptable
conditions. Scholars against its use cite the many Shari’ah compliance issues associated with its modern application by
some banks. We believe the OIC Fiqh Academy in its 19th session in April 2009 upheld its unlawfulness because of
Shari’ah compliance issues. In this paper, we examine issues with the practice of Tawarruq in Malaysia. Before we look
at the issues with Tawarruq as it is exercised in Malaysia, we critically examine the arguments put forward by the
proponents of Tawarruq. The last part of this essay then concludes by driving home our view: the current practices in
Tawarruq still have a lot of issues even after operational standards and guidelines have been issued by the monetary
authority – BNM (Bank Negara Malaysia).
2. Justification for the use of Tawarruq
With the use of Tawarruq comes the debate regarding its permissibility. On one hand, some scholars are
worried about the Shari’ah compliance issues with modern practices in Tawarruq. On the other hand, some
contemporary scholars permit it noting that the majority of jurists from the schools of Hanafi, Shafi’i and Hanbali
appear to have considered Tawarruq to be legally permissible (Lasasna, 2015).

1 Corresponding Author: Habeebah Simisola Fa-Yusuf, Assistant Lecturer, Department of Finance, Faculty of Business
Administration, University of Lagos, Nigeria and PhD student, International Centre for Education in Islamic Finance (INCEIF),
Lorong Universiti A, 59100 Kuala Lumpur, Malaysia. Email: [email protected]. Phone: +60109613020
2 Ndeye Djiba Ndiaye, MSc student, International Centre for Education in Islamic Finance (INCEIF), Lorong Universiti A, 59100

Kuala Lumpur, Malaysia

Simisola Fa-Yusuf, Djiba Ndiaye 31

The BNM’s SAC (Shar’iah Advisory Committee) draws evidence from the Quran and the Sunnah legitimizing
Tawarruq. Its Quranic evidence was an excerpt from Suratul Baqarah verse 275:
“Whereas Allah (SWT) has permitted sale and forbidden usury”
To this, we say that Allah permits the sale when the purpose is right. Moreover, scholars have adopted
Tawarruq considering it as an alternative to Inah.The involvement of a third party in the trading, even if is more
appropriate to be ruled as permissible compared to ‘inah, still doesn’t make the transaction valid. As we explain later,
there appears to be a validity of purpose issue with Tawarruq as is currently practiced in Malaysia.While we see the
basis on which the regulator permits Tawarruq, we should examine the basis on which industry players justify its use.
Practitioners in the banking industry see Tawarruq as a necessity. One reason is because with its current structure, it
provides liquidity management solutions to Islamic Financial Institutions (IFIs). Another reason is because of the
need to provide Muslim customers with “Shari’ah-compliant” working capital in the absence of collateral. Proponents
say Tawarruq is very useful in situations when a bank customer needs cash but has no collateral to give his lender. They
explain further that in the absence of an alternative Islamic finance structure that provides cash to the customer where
he has no valuable asset, Islamic bankers should continue to offer Tawarruq products. Doing this, they say, will be
better than diverting the customer to a conventional banking product which is clearly involved in Riba (Islamic
Bankers, 2016). Practitioners do not only see Tawarruq as a necessity tool for the above-mentioned reasons but also as
a useful tool to issue Islamic credit cards and provide Islamic home financing. Those in support of Tawarruq might
deem it permissible based on Maslahah Mursalah (public interest). To this group, the use of Tawarruq might seem as
Hajiyyat Masalih which Kamali (2013) defines as an interest whose neglect leads to hardship in the life of the
community. Our view of this line of reasoning is that any declaration based on Maslahah Mursalah of supposedly
satisfying people’s needs should not contradict the objectives of Shar’iah.
3. Issues with the practice of Tawarruq by Islamic banks in Malaysia
Some of the issues raised with its use in Malaysia are:
3.1 Validity of Purpose Issue
To be valid from a Shar’iah perspective, a sale contract must be valid in form and valid in purpose.
According to Al-Jarhi (2016), validity in form means that the contract must involve a buyer, a seller, a sold object that
is lawful to trade and a price. The seller must own and possess the sale object, except for the sale of something that
can be acquired in the market under Salam or Istisna. The sale must not be made conditional. The contract must be
devoid of cheating, gharar (uncertainty), and Riba (interest rate). Validity in form also means that either the delivery of
the good or its payment may be deferred; both aspects may be delivered on the spot but both aspects should not be
deferred. Validity of purpose means that the contract must be for a valid purpose. For example, the purchase for
grapes for liquor manufacturing has an invalid purpose that renders the sale contract void. The ultimate consequence
of the contract must also be lawful which means that the sale contact must not ultimately lead to the exchange of
money on the spot for future money at a premium (Al-Jarhi, 2016).
In our view, Tawarruq as is practiced in Malaysia doesn’t meet the validity of purpose requirement as a
sale contract. In fact, the ultimate goal of Tawarruq for whoever is providing the liquidity is to exchange spot money
for a higher amount in the future, thus the financier is taking advantage of the need for liquidity of the client be it an
individual or institutions to charge interest implicitly. If they were interested in a commodity then the mark-up would
be justifiable, but clearly the goal is cash liquidity. Indeed according to (Ghazali, 2014) Umar ‘Abd al-‘Aziz stated that
Allah permits the sale and purchase when the objective of the transaction is trading. However, if the intention of such
trading is to gain more dirhams from dirhams, then there is no goodness in the deal (Ghazali, 2014).
3.2 Tawarruq as Hilah to give a loan with interest
It has been alleged that most contemporary Tawarruq structures are a hilah (trick) to legitimize or circumvent
interest-taking (Meera (2015) and Noor & Azli (2009)). In fact, the deception in the practice of modern Tawarruq was
a major reason the OIC Fiqh Academy ruled it as impermissible. Ibn Taymiyyah prohibited Tawarruq in some of his
fatwas due to the strong argument based on the meaning of the statement of Umar ‘Abd al-‘Aziz: “Indeed, Tawarruq is
32 Journal of Islamic Banking and Finance, Vol. 5(2), December 2017

origination of Riba”. He explained that Allah prohibited generating more dirhams from dirhams due to deferment
because it is considered as taking advantage against someone who is in need and eating his property with deception.
In our view, Tawarruq as being practiced by Islamic banks in Malaysia seems to be to circumvent hilah indeed. The
reason being that the assets traded in the Tawarruq contracts are usually not delivered to the purchaser. This means
those assets are not needed for themselves but are merely used to form a complex model made to by-pass a
conventional debt contract.

As an illustration we have included the Tawarruq financing model of Amanah Ikhtiyar Malaysia (AIM), the
largest Islamic microfinance institution in Malaysia, which is supposed to help the poor in urban and rural parts of
Malaysia. The model shows how AIM is using Tawarruq as an implicit way to charge interest. The microfinance client
ends up getting cash for higher debt obligation payable in the future. The structure is therefore analogous to a loan
with interest.
Figure 1: Tawarruq financing model of Amanah Ikhtiyar Malaysia (AIM)

Source: Mohammed (2016)

Another issue is the use of Tawarruq in Islamic credit card as illustrated below:
Figure 2: Islamic Credit card model based on Tawarruq

Source: Mohammed (2016)

Simisola Fa-Yusuf, Djiba Ndiaye 33

The above diagram is explained thus: In step 1, the bank purchases a commodity from Broker A on the spot.
In step 2, the bank sells the commodity to the customer on deferment. The selling price is equivalent to the credit
limit and inclusive of the bank’s profit. In step 3, the customer sells the commodity to Broker B. In step 4, Broker B
deposits the cash into the customer’s balance in the Wadi’ah account. In step 5, the customer buys goods from the
merchants using the balance in the Wadi’ah account. In step 6, the purchase price is transferred to the merchants.One
of the conflicting juristic views that have emerged in contemporary Islamic Banking is that there is no need to
reinvent products offered by conventional banks in a globally competitive banking industry. Instead, Islamic banks
should adopt the minimal necessary modifications to these conventional products to ensure Shari’ah compliance. This
tendency to emphasize ‘form over substance’ is symptomatic of ‘big businesses’ driven by the profit-making maxim
(Mallin, Farag and Ow-Yong, 2014). Tawarruq seems to fall into this category of products. In our view the use of
Tawarruq in Islamic credit card is tantamount to a loan with interest. One can observe from the above that the client
doesn’t take delivery of the asset. The client is barely involved, he/she needs money on spot which he/she will get in
return for a debt, higher than the cash he/she, to be repaid on deferment. The structure ultimately is analogous to a
loan with interest, like any conventional credit card. Tawarruq is only used as a way to circumvent Riba.
3.3 Resembling Inah
The Hanbali scholar, ibn Taymiyyah, and his student ibn al-Qayyim had strongly disapproved of Tawarruq and
included it in the same category as the Inah sale. Before modifications were made to the structures commonly used by
Malaysian Islamic banks for personal finance, the common practice was for the bank to make a pre-arrangement with
the customer to sell the commodity back to them. This is clearly Inah. Bowing to a lot of criticism, BNM disallowed
this sort of structure. This structure has been replaced mainly by banks acting as an agent to sell a commodity under a
Tawarruq structure to a third party. However, this is still just a way to get around lending the customer money making
him return more money in future. The current Tawarruq practices still closely resemble Inah.
3.4 The Bank as a dual agent
The most recent Shar’iah Standards and Operational guidelines on Tawarruq issued by the BNM’s SAC permit
the implementation of dual-agency in Tawarruq contracts. Dual agency here means that a bank is acting as an agent to
buy the underlying asset on behalf of the customer while at the same time, being the agent to sell that asset on behalf
of the customer or in term deposit accounts to sell it to him. We see this in the following illustration of the model
used by Bank Islam for one of its products:
34 Journal of Islamic Banking and Finance, Vol. 5(2), December 2017

Figure 3: Bank Islam Tawarruq Structure for Personal financing-i

Source: Bank Islam (2012)

The bank is performing the role of a dual agent in the above model if the client instructs the bank at stage 1
to buy the commodity on its behalf. This bank will be the same agent that sells the commodity on behalf of the client.
Here, it is very conducive for the bank to take advantage of the client by generating a huge mark-up. We believe the
client is being taken advantage of with this process.
3.5 Charging a delivery process fee
Upon examining the product disclosure sheet of Standard Chartered Saadiq’s Personal Financing-i based on
commodity Murabahah, we observed that the customer is to solely bear the cost of physical delivery of the commodity
(plastic resins). The situation is not different in the current practices at the BSaS (Bursa Suk al-Sila). The question is:
Why should there be a separate charge for delivering the sold commodity to the buyer? We believe this element is
what gives the incentive of purchasers not wanting the commodity delivered. This widespread practice of non-delivery
of traded commodities in most of the Tawarruq structures in Malaysia give further backing to the view that most
Tawarruq as practised nowadays is not a true trade and its goal is to get cash. Is constructive possession enough? How
do you make sure that the sale is not just in papers? To address this criticism, we believe that the commodity’s selling
price should take care of the delivery charge.
3.6 Encouraging the proliferation of debt
The wide usage of Islamic debt instruments such as Tawarruq increases the proliferation of debt according to
some (Dusuki, 2010). This is because private debt accumulation in a supposedly Shari’ah-compliant way has been
made easy by instruments such as Tawarruq. In Malaysia, the increasing usage of Tawarruq by banks to finance private
debt such as home loans and credit card debt has contributed to the country’s worrying high rate of private debt
growth. In our view, this rapid growth of private debt is unsustainable and points to a crisis waiting to happen.
3.7 Accounting risk
Bacha & Mirakhor (2013) note that Islamic Money Market instruments, of which the Tawarruq structure used
by BSaS belongs face accounting risk. By accounting risk, we mean that as the underlying commodity is traded from
one party to another, the right monetary values may not be reflected in the books of the parties concerned. However,
with appropriate audit of the books of the IFI, this problem can be addressed.
Simisola Fa-Yusuf, Djiba Ndiaye 35

3.8 The use of Base Financing Rate (BFR) in profit as benchmark

In cases of variable rate financing for products based on Tawarruq in Malaysia, most times a benchmark is
used in deciding the issuer’s profit. An example of this is can be seen in Bank Islam Malaysia’s Islamic home
financing. Here, the bank’s EPR (Effective Profit Rate) is based on the BFR which is a conventional interest rate.
Some say benchmarking in Islamic banking should be a non-issue saying that if a transaction fulfils the necessary
conditions, merely using the interest rate as a benchmark for determining profits does not render the transaction as
haram. To us, determining profits based on what is happening in the conventional banking sector will mean that the
Islamic finance industry and the conventional will move in tandem with one another. An issue can then be raised that
the two are not so different after all.
3.9 Tawarruq as a barrier to true risk-sharing
We are of the view that Tawarruq discourages the widespread use of products based on true risk-sharing like
Mudharabah and Musharakah. In Tawarruq-based transactions like fixed deposit accounts and commodity Murabahah
the capital and return are guaranteed. In contrast, in Musharakah and Mudarabah the capital and profits are not
guaranteed. Being risk averse, banks and other IFIs would likely favour Tawarruq in lieu of equity-based contracts.
Furthermore, modern Tawarruq structures drives investment from moneybags to end-users who may or may not be
capable of repaying. Of what good is Islamic Finance when it becomes elitist due to contracts like Tawarruq?
Islamic Finance is supposed to be based on the values of benevolence, justice and fairness. They reflect the true
essence of Islam. Those values are achievable through risk-sharing between parties as opposed to conventional
finance where the risk is shifted to another party.

4. Conclusion
Islamic Finance or Banking should not only be different from the conventional finance in theory. It should
also be different in practice. Islamic Banking from a theoretical perspective is based on the principle of Profit and
Loss sharing in place of the interest based deposit/lending found in conventional banks (Mallin et al., 2014). Contracts
like Tawarruq defeat the essence of Islamic Banking/Finance as we explained earlier. It is difficult to prove that
Tawarruq as is practised in Malaysia is very different from a loan involving Riba. The use of Tawarruq seems to reflect
the tendency of modern IFIs, and in this case, Malaysian ones, to emphasize form over substance. This tendency to
choose ‘form over substance’ is symptomatic of big businesses driven by profit making (Mallin et al., 2014). Islamic
banks are business entities indeed but they have the moral responsibility of being truly based on the Shari’ah. Tacitly
charging interest ought to be given up. If not, the Islamic Finance industry would be analogous to the case of
someone who calls himself Muslim but does not want to give up alcohol under the delusion that he must consume
alcohol to be alive and well. Such a person would need to find another drink pleasing to his creator and beneficial to
his soul. The opportunity cost of loan (Qardh) in Islam is non-market non-material. As evidenced in the Holy Quran
in Suratul Baqarah: 245:
“Who is he that will lend to Allah a goodly loan so that He may multiply it to him many times? And it is Allah that decreases
or increases (your provisions), and unto Him you shall return.”
We suggest some measures to address the current problems with Tawarruq. Firstly, Tawarruq as is currently
practised in Malaysia should be deemed impermissible by the BNM as a way of blocking the means to Riba. Secondly,
its current operations should be modified to ensure strict Shar’iah compliance. Thirdly, bearing in mind that going
after Maslahah Mursalah should not contradict the Shar’iah, efforts need to be intensified in substituting Tawarruq with
products that will serve the public interest and at the same time be Shar’iah-compliant in every sense. One of such
products for personal financing in the absence of collateral, for instance, is Islamic credit card based on Ujrah as it is
less controversial.
36 Journal of Islamic Banking and Finance, Vol. 5(2), December 2017

Figure 3: Islamic credit based on Ujrah

Source: Mohammed (2016)

Another suggestion is to employ equity-based instruments issued by BNM to enable banks manage liquidity
effectively will be useful. This is because one of the arguments often put forward by proponents of Tawarruq is the
necessity for liquidity management by IFIs. However, as we have seen, Tawarruq as currently practice in personal
financing is a mean for IFIs to charge interest implicitly.

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