Sa'id Adekunle Mikail
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- PublicationAl-qawa'id al-fiqhiyyah fil-Shari'ah al-manzumah lil aistithmarat al-mushtarakah: ra's al-mal al-jari' namudhajuaMahamad Arifin; Rusni Hassan; Sa'id Adekunle Mikail (Design For Scientific Renaissance, 2013)
An abstract is written in Arabic.
- PublicationProtecting takaful against the risk of failure: a critical appraisal of the takaful benefits protection system (TBPS) in MalaysiaShaikh Hamzah Shaikh Abdul Razak; Muhammad Ali Jinnah Ahmad; Nurdianawati Irwani Abdullah; Said Bouheraoua; Sa'id Adekunle Mikail (ISRA, 2014)
The establishment of the Takaful and Insurance Benefits Protection System (TIPS) in Malaysia is a statutory requirement. TIPS aims to ensure financial stability, soundness and public confidence. Perbadanan Insurans Deposit Malaysia (PIDM), known internationally as the Malaysia Deposit Insurance Corporation, is the sole regulatory body entrusted with the mandate to regulate deposit insurance across the country. At the outset, its mandate was confined to banking institutions. Since 2010, however, PIDM’s role has been extended to include takaful and conventional insurance institutions. With regard to takaful, the operation of the Takaful Benefits Protection System (TBPS) and the relationship between PIDM and its takaful members pose major concerns that have been raised by the industry in Malaysia. The concerns are related to contractual relationships, sources of premiums, the subject matter of the contract, and the services and guarantee that PIDM provides for takaful participants. This research aims to provide critical Shari'ah analysis and evaluation of the current model of Takaful benefits protection system. It examines the existing model to ascertain to what extent it accomplishes the statury mandate and to what extent it meets Shari'ah requirements. Adherence to regulatory requirements is a must. The takaful industry faces some major challenges in trying to realise the interests of the takaful participants and its shareholders while satisfying the regulators. Thus, it is imperative to conduct an investigation that resolves these thorny issues in a win-win manner.
- PublicationTajdid al-nazar fi qadaya mustajidat fi al-tatbiqat al-mu'asirat lil ijarat al-muntahiyat bi al-tamlikMohamad Akram Laldin; Fares Djafri; Sa'id Adekunle Mikail; Fares Djafri; Mohamad Akram Laldin (International Islamic Fiqh Association, 2023)
An abstract is written in Arabic.
- PublicationThe evolution of Islamic venture capital in Malaysia: an expository studyMahamad Arifin; Rusni Hassan; Sa'id Adekunle Mikail (LexisNexis Malaysia Sdn Bhd, 2013)
Islamic venture capital is a strategic tool to enhance cooperation in the Muslim world. This is because it helps form smart partnership among the members of OIC countries. Venture capital is an investment in highly risky projects in return for potential high return focusing mainly on technology. For more than a decade, the trend has shown tremendous changes; hence venture capital investment records increasing interest of the investors in other sectors such as agricultural production, medical instruments and others. Islamic venture capital has been running in parallel with the mainstream in Malaysia. There are several reasons supporting the emergence of Islamic venture capital namely, attraction of Middle East investors and underutilisation of surplus in the Muslim world. This paper traces the development of Islamic venture capital in Malaysia, identifies the regulatory bodies, and the policy initiatives, and the pioneer corporations. In conclusion, it examines three phases of the development of Islamic venture capital in Malaysia namely, the evolutionary process, the degree of incorporation and developmental patterns. The applied Shariah mechanisms are hybrid of musharakah, mudarabah, and wakalah. It suggests that the balance between supply side and demand side, public friendly regulation may actualise the Malaysian industrialisation dream. In addition, refocusing long-term investment, reorientation of SMEs towards venture capital investment, establishment of private-oriented venture capital industries, creation of cash waqf and/or Islamic social bank are some suggested solutions in promoting Islamic venture capital in Malaysia. They may also be of help to other jurisdictions.
- PublicationApplication of doctrine of judicial precedent in Shariah courtsKyaw Hla Win; Mahamad Arifin; Sa'id Adekunle Mikail (LexisNexis Malaysia Sdn Bhd, 2013)
The doctrine of judicial precedent plays an empirical role in common law, but it has only persuasive value in European continent countries which are practicing civil law system.It has not been recognised as having binding force in Islamic judicial system. In Islam, each case has to be decided based on its own merit and previous decisions can only be considered as guidance for the future cases. This position is still being maintained by some countries such as Malaysia and Saudi Arabia. In Pakistan and Nigeria the doctrine of judicial precedent is applied in deciding cases. Due to this contradiction among Islamic judicial system in various countries, a question arises relating to the feasibility of the application of the doctrine of judicial precedent in Shariah courts. Accordingly, in this paper, the factual nature of the judicial precedents in Islamic judicial systems have been examined comparatively in some details with reference to some selected countries such as Malaysia, Nigeria and Pakistan. This paper points out that the doctrine of stare decisis and judicial precedent can be applied in Shariah courts as guiding precedents but not as binding since there is no express prohibition in Shariah to take judicial guidance from previous decisions.
- PublicationUnearned wakalah fee in the takaful industry in Malaysia: a critical analysisSa'id Adekunle Mikail; Fares Djafri; Burhanuddin Lukman; Mahadi Ahmad; Sa'id Adekunle Mikail; Fares Djafri (International Shari'ah Research Academy for Islamic Finance (ISRA), 2021)
The issue of unearned wakalah fees (UWF) arises due to the statutory requirements in the Islamic Financial Services Act (IFSA 2013) that mandate takaful operators to refund any undue contribution with the corresponding wakaah fee in the event of surrender or termination of a takaful certificate. The relevant statutory provisions and Bank Negara Malaysia (BNM) guidelines on the valuation basis for liabilities of family and general takaful are open to more than one interpretation, and the exact definition and components of money not due are not clear. The implementation of the statutory provisions and regulatory guidelines on the refund of UWF has raised the following issues for the Malaysian takaful industry: 1. How to determine UWF and its components from money not due that must be refunded as stated in the statutory provisions and BNM guidelines? 2. What are the Shari'ah justifications, if any, to support the requirements for refund in the event of surrender? 3. How to resolve any Shari'ah and technical issues pertaining to the implementation of the refund of UWF due to lack of clarity regarding its definition and components? Accordingly, this paper delineates the concept and components of the wakalah contract, its salient features, contractual relationship, subject matter, including the wakalah fee, and juristic deliberations regarding it. It also examines the background and means of identifying UWF by explaining its subject and components, differences between earned and unearned wakalah fee, and the treatment of UWF. Further, it studies Shari'ah and technical issues related to recognition, calculation and refund of UWF and other surrender values.
- PublicationFeasibility of the application of the doctrine of judicial precedent in civil and Shariah courtsKyaw Hla Win; Mahamad Arifin; Sa'id Adekunle Mikail (LexisNexis Malaysia Sdn Bhd, 2013)
The doctrine of judicial precedent plays an empirical role in the common law system, but it only has persuasive value in European countries which are practicing the civil legal system. Moreover, it has not been recognised as having a binding force in the Islamic legal system and thus each case has to be decided based on its own merits and previous decisions were merely considered as guidance for the future decision. This position is still being maintained by some countries such as Malaysia and Saudi Arabia. In Pakistan and Nigeria, however, the doctrine of judicial precedent is followed. Due to this contradiction among the Shariah legal system in various countries, as a result, a question arises relating to the feasibility of the application of the doctrine of judicial precedent in Shariah Courts needs thorough study. Accordingly, in this paper, the factual nature of the judicial precedents in both civil and Shariah legal systems have been examined comparatively in some detail with reference to countries such as England, Malaysia, Nigeria and Pakistan. This paper points out that the doctrine of stare decisis and judicial precedent can be applied in the Shariah Courts system as guiding precedents but not as binding precedents since it is allowed in Shariah to take guidance from previous decisions and there is no express prohibition in Shariah on them.
- PublicationA critical study on Shari'ah compliant and Shari'ah based products in Islamic bankingMahamad Arifin; Sa'id Adekunle Mikail (Design For Scientific Renaissance, 2013)
This paper aims at analyzing the concept of Shari'ah compliant and Shari'ah based products in existing Islamic banking Institutions. The paper would shed more lights on the differences between both concepts. The main argument which is premised on the notion that the products may be Shari'ah compliant but not fully Islamic is vehemently deficient due to the fact that if the product is Shari'ah compliant and is less Islamic, then it is basically contrary to proper and true concept of Shari'ah. It is incontrovertible that Shari'ah is the system of law based on the commandment of Allah and the submission to such law would permit someone to be recognized as "Muslim" A believer in Islam. However, such kind of contradictions certainly shows the presence of shortcomings in such products, or in process of making them compliant to Shari'ah. Therefore, this study is a qualitative design, which addresses lacuna of the idea of Shari'ah complaint may be of less Islamic ethics. It will also examine the approach used by the Prophet peace be unto him- to reform the financial systems during his era. The paper will conclude by offering four alternative approaches on Shari'ah compliant parameters viz.; 'Aqd approach, Maqasid approach, Reporting approach, and Legal documentation of contract approach. In addition, this paper will explains the relationships among the various approaches, as some stand as dependent parameters, while the other stand as independent parameter. The study will offer suggestions for future research.
- PublicationSustainable financial inclusion: a fiqh analysis of zakat-based microfinance schemeSalami Saheed Adekunle; Sa'id Adekunle Mikail (Lembaga Zakat Negeri Kedah Darul Aman, 2020)
Sustainability has remained one of the most significant challenges facing microfinance industry in general and Islamic microfinance in particular. With the advent of Islamic microfinance and Islamic microinsurance the need for Shari'ah compliance is indispensable. Such need poses another additional challenge for Islamic microfinance practitioners. Many practitioners have argued that in practice Shari'ah compliance should be sacrificed for profitability so that Islamic microfinance industry could achieve sustainability and competitiveness in the global microfinance market. However, not a few researchers and Shari'ah scholars argued that the industry risk identity loss by trading Shari'ah compliance for any other benefit no matter how lofty - be it profit or otherwise. They are of the opinion that Shari'ah, being the backbone of Islamic financial system must be abided by in all Islamic finance instruments and models and compromising it cannot be an option. The controversy on whether sustainability and Shari'ah compliance could be regarded as mutually exclusive has been very intense and unabated especially among the regulators, industry players and academicians. Based on the foregoing, this paper sets out to investigate achieving both Shari'ah compliance and sustainability through zakat-based microfinance scheme. Inductive qualitative methods were adopted as instruments to conduct the research. Data were also gathered from both primary and secondary sources of Shari'ah. This paper finds that Shari'ah compliance and sustainability in microfinance operations could be achieved pari passu through the zakat-based microfinance scheme and as such both factors are not necessarily mutually exclusive.
- PublicationFramework for financial hardship indebtedness management in abandoned housing projects in MalaysiaNoor Suhaida Kasri; Saba' Radwan Jamal Elatrash; Abideen Adeyemi Adewale; Sa'id Adekunle Mikail; Noor Suhaida Kasri (Emerald Publishing Limited, 2018)
This paper aims to examine the existing practices and pertinent issues affecting Islamic banks and their customers in abandoned housing projects (AHPs) to ensure compliance with Shari'ah and statutory requirements. This study employs the qualitative research method using the inductive approach to analyze both primary and secondary data and sources. Data collection involved a series of semi-structured interviews with five volunteering Islamic banks and a representative of Abandoned Property Owners Association Malaysia (Victims). Statutory acts, regulatory policies, guidelines, directives and standards were also analyzed. The result indicates developer's default, underlying contracts, regulatory arbitrage and bureaucracy, attitudinal disposition of customers and sell-then-build approach as major factors of AHP's conundrum. This study has suggested both short- and long-term solutions based on the principles of justice, public interests and removal of hardship to resolve and effectively manage financial hardship indebtedness arising from housing abandonment. Further, part of the proposed solutions would also reshape housing development policies and home financing transactions.
- PublicationHistorical development of Islamic venture capital: an appraisalRusni Hassan; Muhamad Arifin; Sa'id Adekunle Mikail (AENSI Publications, 2011)
Venture capital is commonly defined as medium to long-term equity investment provided for unlisted companies to finance their start up, expansion, survival and change of ownership. The origin of which was traced back to mudharabah; which is commonly translated to Islamic limited partnership. The application of venture capital seems to be abandoned in Muslim world for long, while Western communities get steady development of it. Since the inception of Islamic banks for almost two decades, Islamic banks are also turning a blind eye to venture capital. In spite that venture capital is akin to Islamic bank's principle of profit and loss sharing. The first Islamic bank which was introduced 1963 at Mit Ghamr by Dr. El-Naggar, was primarily built on mudharabah contract which constitutes a tiny portion in day-to-day operations of Islamic banking and financial institutions to date due to risks associated with this area of investment. However, venture capital considered as a formidable tool for economic and technological development in the West. This study aims at studying historical development of mudharabah and musharakah that constitute the root of the modern venture capital. The study covers both classical and modern Islamic venture capital. The study finds that modern Islamic venture capital operates in form of banking and financial institution at the outset. This is could be imagined with the establishment of the first Islamic bank at Mit Ghamr Egypt 1963, Tabung Hajj at 1960s. On the contrary, Mudharabah Companies established in Pakistan in1984 operates in form of fund management company. Nevertheless, the first fund carries the tittle of Islamic venture is Injazah funds established in 2004. The first fund and management corporation dedicated for Islamic venture capital is musharaka venture tech and management established in Malaysia 2008. The first banking institution dedicated for Islamic venture capital and private equity investment is Venture Capital Bank established in Bahrain 2006. The common Shari'ah applicable principles are musharakah, mudharabah, and wakaalah. Although muzara'ah and musuqat are seldom applied in the agricultural sector. In a nutshell, the study provides Shari'ah framework for Islamic venture capital and proposes solutions for pressing issues.
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