Islamic Banking Meets "conventional" Banking

ISLAMIC BANKING MEETS "CONVENTIONAL" BANKING:

A SURVEY OF RECENT DEVELOPMENTS IN BANKING IN PAKISTAN

Isobel Lobo, Benedictine University

Frank Bonello, University of Notre Dame

In 1985, Pakistan declared that interest had been eliminated from banking. Its religious court ruled otherwise in 1991. The Supreme Court upheld the ruling and directed the government to bring a number of banking laws into conformity with Islamic injunctions by June 30, 2002. As the deadline approached, however, in a surprising last minute reversal, it remanded the case back to the religious court for reconsideration. Granted a reprieve, the country appears headed towards a dual banking system.

A Synopsis of the Elimination of Interest and the Evolution of Interest-Free Banking

Islam prohibits riba which is generally taken to include the interest banks pay and receive. Pakistan began planning for an interest-free banking system in 1977. It followed a cautious, and gradual transition that started with the acceptance of profit/loss sharing (PLS) deposits by the nationalized commercial banks in January 1981. The transition was declared complete in July 1985 when bank assets and liabilities (except for foreign loans and foreign currency deposits), were converted to various non-interest bases. The country's central bank, the State Bank of Pakistan (SBP), provided the banks inter alia with a list of approved modes of finance and a method for calculating rates of return on the banks' PLS deposits.

A number of "qualitative deficiencies" were, however, found to characterize the procedures used by the banks. [Institute of Policy Studies]. Recognizing this, the terms interest-free or noninterest-based (NIB) banking, rather than Islamic banking, have commonly been used to describe the system in place since 1985. One of the main shortcomings of the noninterest-based system is the banks' almost exclusive reliance on a single mode of finance - mark-up with or without buy-back arrangements - that closely resembles interest, and their virtual exclusion of any form of PLS or partnership-based finance (e.g. musharaka or mudaraba) that many Muslim scholars of religion and economics consider more truly reflects the spirit of the Quranic prohibition of riba. In 1992, for example, mark-up based finance accounted for over eighty percent of the finance extended by the nationalized commercial banks (who at the time accounted for about 90 percent of bank assets), while their musharaka finance was insignificant. Another shortcoming is the fact that banks are (still) allowed to invest in (interest-paying) government securities.

As one writer concludes, the elimination of interest "was carried out without serious regard to Islamic legal doctrine, leaving the interest-based banking system fundamentally unchanged, but covering it with an Islamic varnish." [Ray]. The elimination of riba (interest) had not been carried out with regard to the true spirit of the prohibition. [Makhdoom]. Moreover, the minimal nature of the change was apparent to most people. [Gieraths].

Key Judicial Rulings on the Banking System From 1991 to 2002

Monetary and fiscal issues had been excluded from the jurisdiction of Pakistan's religious court, the Federal Shariat Court (FSC) up to June 26, 1990. On November 14, 1991, after hearing 115 petitions challenging twenty banking and fiscal laws, the Court found that provision for interest in these laws came under the definition of riba and was, therefore, repugnant to the injunctions of Islam. It set a deadline of June 30, 1992 after which the various provisions would cease to have effect.

The Shariat Appellate Bench (SAB) of the Supreme Court of Pakistan upheld the FSC's ruling on December 23, 1999. The Bench explained its opinion of the modes of finance that appear in the different laws under consideration. Unlike the FSC, the Bench noted that a sale on mark-up (murabaha) is permissible if it is based on the genuine sale of a commodity. Mark-up may not be charged on a money loan. It endorsed the use of some modes of finance (including lease and hire-purchase in approved forms) while emphasizing musharaka and mudaraba as true alternatives to interest Its judgment indicates that: (i) any amount over the principal in a contract of loan or debt is riba forbidden by the Quran; (ii) the prevailing interest-based financial system has to be subjected to radical change to bring it into conformity with Islamic injunctions; and (iii) provisions for payment of interest in eight specific laws (on money lending) would cease to be have effect from March 31, 2000 and all other laws considered in the judgment would be ineffective from June 30, 2001.

The Appellate Bench suggested the following measures be taken to transform the existing system: (i) austerity measures to curtail government expenditure; (ii) laws to regulate government borrowing powers; (ii) laws to ensure transparency and freedom of information; (iv) establishment of an institution to control "white collar and economic crimes; (v) establishment of credit rating agencies; (vi) establishment of evaluators to scrutinize feasibility reports; and (vii) establishment of special departments and a Shariah Board within the central bank (to scrutinize and evaluate procedures and products).

The Bench directed the government inter alia to establish a Commission for Transformation of the Financial System in the SBP to prepare a strategy, and to constitute task forces in the Ministries of Finance and Law, for preparation and approval of model financing agreements, and for conversion of the government's domestic borrowing into project-related financing (inter-government loans and central bank finance were to be interest-free). The SAB admitted it would be difficult to implement the prohibition of interest in the area of foreign loans. It directed the government to renegotiate existing loans, to avoid foreign debt, and to structure any necessary future foreign borrowings on the basis of Islamic modes of finance. The Bench set deadlines for the government to comply with each of its instructions.

On December 29, 2000 the government issued a prompt and categorical reassurance that banking transactions would continue to be protected and that Pakistan would honor its foreign debt commitments. Despite this, the SAB's ruling cast uncertainty over the country's dealings with international lenders. [Bokhari 2000]. During the period between the FSC's judgment in 1991 and the SAB's decision to uphold it in 1999, all financing