Another Sad Day - First 'Super Bench' Of NINE Federal Court Judges Rules In Favour Of 'Tidak Boleh Menggunakan Akal Dalam Semua Hal'. Backdoor 'Supremacy' For Syariah

The news is that something unprecedented happened on Wednesday - the Federal Court (our highest Court) convened a Super Bench of NINE Judges to decide on an Islamic banking aka Islamic financing case.

Here is the news :

unprecedented nine-man Fed Court Bench handed landmark majority judgment 

ie decisions by BNM's Syariah Advisory Council (SAC) on Islamic finance 

constitutional and binding on civil courts 

even though Advisory Council not a judicial body

nine-man super Bench first in nation's history

but landmark decision was narrow 5-4 decision

dissenting judges were :

1. Chief Justice Richard Malanjum
2. Chief Judge of Sabah and Sarawak Justice David Wong Dak Wah
3. Federal Court judge Justice Idrus Harun.
4. Chief Judge of Malaya Justice Zaharah Ibrahim

majority judgment written by :

1. Federal Court judge Justice Mohd Zawawi Mohd Salleh 
2. Court of Appeal president Justice Ahmad Ma'arop 
3. Federal Court judges Justices Ramly Ali
4. Azahar Mohamed and 
5. Alizatul Khair Othman Khairuddin

Previously, a Bench of seven was max number ever convened in Fed Court

dissenting judgment rules that sect. 57 of Central Bank of Malaysia Act 2009, which gives SAC judicial power, contravenes Article 121 of Fed Constitution which touches on judicial power of civil courts

sect. 57  vests judicial power in SAC 

to the exclusion of the High Court on syariah matters

sect. 57 must be struck down as unconstitutional and void," said Justice Malanjum 

SAC set up in 1997 - authority in Islamic finance in Malaysia

SAC prevails over contradictory ruling by (any) Shariah body 

(now) court also required to refer to SAC relating Islamic finance

In the majority judgment, Justice Zawawi found SAC expert in Islamic finance

SAC highly qualified in Syariah economics, banking, law and finance

SAC rulings regarded as collective ijtihad that provide consistency, conformity

judgments stemmed from referral by JRI Resources Bhd against Kuwait Finance 

lawsuit in 2013 by KFH against JRI for RM118,822,066.59 

question was if sect. 56, 57 of CBMA constitutional 

for impinging on judicial powers 

sections stated Syariah Advisory Council (SAC) bind Civil High Court

My comments :

It does not matter if it was a 9 man bench, 11 man bench or a 13 man bench. 

As long as the majority of the judges are Malay / Muslim they will most likely rule in favour of the syariah.  
Why?  Because it is syariah. 
If they go against the syariah, enough of them will be afraid they are committing a dosa besar and go to hell and burn in eternal hellfire.

Here let me assure the FOUR dissenting judges, especially the TWO Muslims 

1. Justice Idrus Harun.
2. Chief Judge of Malaya Justice Zaharah Ibrahim

that you have done the correct thing. Yours is an Islamic judgement call. Thank you. And congratulations.

As for the FIVE judges (all Malay / Muslim) who voted in favour of Bank Negara's Syariah Advisory Council,  let me tell you that you have actually decided that a system 'yang tidak boleh gunakan akal dalam semua perkara' is now dominant to a system that relies almost entirely on the use of akal. 

Because this is what the religious people say 'kita tidak boleh menggunakan akal dalam semua hal agama'. 

You have also opened a backdoor for the Syariah Court to supersede the Civil Courts.  

Because now Pas will argue that if a mere Syariah Advisory Council from Bank Negara has been awarded supremacy over the Civil Courts (ok lah in Islamic finance matters only) then by the same token the Syariah Courts should have supremacy over the Civil Courts in ALL matters involving Muslims.  

This is what they will say.

But first things first -  who says the Syariah Advisory Council is an expert on anything, especially 'Islamic finance'?

Islam is not a product that was 'Made in Kuala Kangsar'. 

Islam is global. Can the Federal Court assure us that the SAC's understanding of Islamic finance is agreeable to the global Islamic understanding of 'Islamic finance'?

Does not the Federal Court know that there is no such thing as  'international Islamic finance' or 'international Islamic banking'?

Why not?

Because different Muslim mazhab (sects) and different Muslim countries CANNOT agree on what is truly Islamic finance or Islamic banking. 

In Islamic finance this huge problem is camouflaged under what is termed  "Lack of shariah uniformity".   Sounds so innocent.  Banyak cantik. 

Here is some cut paste : 

Lack of shariah uniformity

Most Islamic banks have their own Shariah boards ruling on their bank's policies. 

According to researchers, 

• the four schools (Madhhab) of Sunni fiqh (Islamic jurisprudence) have not come closer to agreement in Islamic banking. 
• They apply "Islamic teachings to business and finance in different ways. 
• Disagreements on specific points of religious law occur both between those four schools and within them. 
• Furthermore, shari'a boards sometimes change their minds, reversing earlier decisions.

Along with the question raised by Ibrahim Warde of whether boards are "rubber stamping" sharia compliance of the banks that pays their salaries, differences between boards as to what constitutes shariah compliance may eventually present difficulties by "raising doubts in the minds of clients" over whether a given bank is truly shariah compliant, according to Munawar Iqbal and Philip Molyneux. 

"If Islamic banking is not perceived to be 'Islamic', it will not be long before the existing Islamic banks lose much of their market."

So there is no uniformity among the ostards about Islamic finance. 

The Malaysian part of this story actually began on December 29th, 2005 when one High Court Judge, Justice Dato Abdul Wahab Patail (the brother of the former AG Tan Sri Ghani Patail) made an earthshaking judgement that basically overturned the entire FALSE AND TIPU HELAH concept of Islamic finance.

YES ISLAMIC BANKING IS JUST ONE BIG FAKE, FALSE TIPU HELAH.

In the now very famous judgement by Justice Wahab Patail over the case of Affin Bank v Zulkifli bin Abdullah  (you can read the 57 page judgement here, I did)  the good Judge ruled that a major part of the Al Bai Bithaman Ajil or ABBA Islamic finance product was not legal. Err . . . that is why the High Court ruled against it lah. 

Zulkifli Abdullah had 'borrowed' RM346,000 from Affin Bank to buy a house. 

This was also called the Bank's 'purchase price'.

Actually under Islamic finance you do not "borrow" money. 

You can only buy and sell something. 

The ABBA is a buy and sell. The Bank buys the house from the developer or vendor for cash,  and then sells it 'immediately' to the 'new house buyer' for deferred payment. In Zulkifli's case it was deferred payment stretching for 18 years (?)

And guess what? Over 18 years, Zulkifli would have paid back the Bank the grand sum of RM958,000 !!  This was the Bank's selling price.

The original amount "borrowed" was only RM346,000. 

Anyway just a few years into the loan Zulkifli defaulted on the monthly payments. 

So Affin Bank sued Zulkifli. 

But Affin Bank demanded that Zulkifli pay them the full 'sale price' of RM958,000 !!

Even though only a few years had passed when the default occurred.

Really quite satanic as well.

In the conventional banking system - which is wrongly attributed as being haram - the conventional bank will not do satanic things like this.

The conventional bank will only ask you to repay whatever amount of the principal amount still outstanding plus whatever interest overdue UP TO THAT POINT IN TIME. 

Hence the Time Value of Money.  

Anyway the good Judge Wahab Patail saw through the devilish trick and told the Bank, 

"Ayoyo ini macam mana boleh? Tak boleh lah. Ini macam itu Arumugam chetty pun kalah, itu Joginder Singh moneylender pun kalah, itu Yahudi Wall Street pun kalah lah.  Awak pigi kira balik betul-betul. Mau betul-betul kira. Jangan tipu orang."

(Or words to that effect lah).

Plus the good Judge worked out another fairer amount (as also calculated by the Bank) and ordered that to be the settlement amount. That settlement amount also captured the current market value of the property (since the Bank had the right to auction it) as well  as covered all the amounts due.  So the judgement was fair.


[Just for your information Justic Wahab Patail went on to make a few more judgements like this. The banks went to the appeals courts and got his decisions overturned. They also passed the Syariah Advisor Act which made Bank Negara Malaysia's Syariah Advisory Council or SAC the final point of reference for all Islamic finance matters.]

Justice Wahab Patail also made a few other valid observations. Among which was, since the Al Bai Bithaman Ajil was a buy and sell back deferred payment transaction where Zulkifli had 18 years to pay the Bank, how then can the Bank demand that the FULL SALE PRICE of RM958,000 be payable immediately and DENY ZULKIFLI his full 18 year tenure??

This is a  'Buy and Sell' contract. 

It is NOT a loan. 

Because in Islamic finance there are no such things as loans. 

You only BUY and SELL.

So since the Bank had contracted to sell the house to Zulkifli via deferred payments over a period of 18 years, where was  the fairness to Zulkifli if the Bank suddenly asked him to IMMEDIATELY pay the full sale price of RM958,000? 

Pay instantly, today !!

What happened to that 18 year tenure?  
Tak masuk akal lah.

From a business angle, If Zulkifli can pay RM958,000 instantly today then WHY WOULD HE NEED TO BORROW RM346,000 to buy the house? 

So there is something else, something extra to Islamic finance, other than it being FAKE, FALSE and SATANIC.

It is also STUPID.  

Folks I have to dwell on this a little more.  
Because there will be some (many actually) who will still refuse to understand. 

Here is an example. Instead of Ringgit and sen (Malaysian currency) imagine that an Islamic agricultural bank gives 'real animal financing' for farmers. 

Instead of cash money the bank "loans" / "gives out"  actual farm animals (like barter).

• The islamic agro bank gives Ahmad 10 cows for his breeding and farm cows business.
• The agreement is Ahmad must pay back the bank over a deferred payment period of 10 years. 
• Every year, Ahmad must give back to the Islamic agro bank TWO baby calves in good health. 
• So  over the 10 years, Ahmad would have paid back or given back 20 calves to the Islamic agro bank.   
• This is not impossible because the cows can breed, Ahmad knows cattle breeding and he has 10 years to do it.

Suddenly in the first year things go wrong. The cows dont breed as well.

Ahmad defaults on his deferred payment scheme with the islamic bank.

Ahmad fails to deliver the first two calves to the bank.

The islamic bank then does an "Affin"  on Ahmad. 

The Bank says 'Pay me back all the 20 cows now, immediately'.

Because that is the sale price that we have agreed upon. 
Pay me 20 cows now.

This is a physical impossibility.  

How can 10 cows become 20 cows overnite?

Over 10 years yes it is possible. But not overnite.

The same applies to housing finance via deferred payments. 

Conclusion : According to the Quran, riba IS NOT BANK INTEREST.  I have written about this before. Maybe I should mention it again but later.

(Ok folks, the following part is a little Quranic. Non Muslims bear with me. Muslim folks, please do read. This is important.) 

Here is a verse from the Quran.  To me this single verse not only covers all aspects of business, trade and transactions but it is the DEFINING SENTENCE about any Islamic Economic System including an Islamic financing system.

This is from Surah 17:35

17:35   "You shall give full measure when you trade, and weigh equitably. This is better and more righteous."

This same message is repeated in a few other verses in the Quran. 


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Ok once again I have to digress a little here.  (Non Muslims have to bear just a little bit more.)

To me 17:35 above is a mutashaabiha verse.  REPEAT : It is a mutashabiha verse.

Contrary to what the ostards say,  mutashabiha  does not mean allegorical  or  unclear verses.    That is a terrible thing to say.  There are no unclear verses in the Quran.

Mutashaabiha  means similar, the same, repeated or repeating.  The message or story in some verses is repeated in other verses throughout the Quran. 

How do we prove this? We look at other verses in the Quran which have the same word mutashabiha. 

So here is one of them.  This is Surah 2:25.  

For those of you who can read Arabic, look at the word I have circled in red.  It says mu-ta-sha-bi-han.

And here is a cut paste of this word mutashabihan in Surah 2:25 from the Quranic Arabic Corpus :

The Quran Corpus "CORRECTLY" translates mutashabihan as 'resemblance'. 

BUKAN  ALLEGORICAL, UNCLEAR etc.  

Here is a full translation of this verse, in Malay :

[Surah 2: 25]     Dan berilah khabar gembira kepada orang-orang yang beriman dan beramal soleh, sesungguhnya mereka beroleh syurga yang mengalir di bawahnya beberapa sungai; tiap-tiap kali mereka diberikan satu pemberian dari sejenis buah-buahan itu, mereka berkata: "Inilah yang telah diberikan kepada kami dahulu"; dan mereka diberikan rezeki itu yang sama rupanya, dan disediakan untuk mereka dalam syurga itu pasangan-pasangan, isteri-isteri yang sentiasa bersih suci, sedang mereka pula kekal di dalamnya selama-lamanya. 

Here the word mutashabihan is correctly translated in Malay (this is the UIA translation at   http://www.iium.edu.my/deed/quran/malay) as  yang sama rupanya.

To really beat this horse to death, here are FOUR different English translators for this mutashabihan part of Surah 2:25 :

1. Pickthall : and it is given to them in resemblance
2. Shakir :  and they shall be given the like of it
3. Sher Ali :  and gifts mutually resembling 
4. Yusuf Ali :  for they are given things in similitude

"resemblance, the like of it, mutually resembling, similitude" and  yang sama rupanya.

So from today onwards please stop saying that mutashabiha means ALLEGORY, UNCLEAR, etc. It is not.  

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Ok lets get back into the Islamic finance orbit.   I was talking about Surah 17:35

17:35   "You shall give full measure when you trade, and weigh equitably. This is better and more righteous."

So how can Affin Bank insist that Zulkifli pay RM998,000 when the conventional bank, the haram bank or the kafir bank like for example Chung Khiaw Bank (now UOB) or Public Bank or Hong Kong Bank will ask Zulkifli to pay ONLY the principle amount outstanding from his housing loan (RM346,000?) plus any outstanding interest as well.

Obviously the kafir bank is "giving full measure and weighing equitably" -  as per the Quran. This is better and more righteous.

The so called Islamic bank wants to choke Zulkifli to death. Forcing him to pay RM958,000 !!

Who is being Islamic?
Who is being satanic?