Sa'id Adekunle Mikail

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PhD (Law), International Islamic University Malaysia (IIUM)
Fields/Area of Specialization
Shari‘ah, comparative laws and Islamic finance
Dr. Sa'id Adekunle Mikail obtained his Bachelor Degree of Shari‘ah (first class honour) from Islamic University of Madinah in Saudi Arabia, followed by Master of Comparative Laws and PhD (Law) from International Islamic University Malaysia (IIUM). His areas of specialisation include Shari‘ah, comparative laws and Islamic finance. His publications focus on Shari‘ah issues in Islamic finance, Islamic legal theory, comparative law, zakah, waqf and Islamic social finance

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  • Publication
    The fiqh characterization of ijarah mawsufah fi al-dhimmah: an analysis of juristic views
    Sa'id Adekunle Mikail (ISRA, 2013)

    The application of the Shari'ah principle of ijarah mawsufah fi al-dhimmah (forward lease) can be traced back to the early days of Islam. It is derived from the original contract of ijarah (lease), which has been widely used in the structuring of Islamic financial transactions to cater for various Muslim and non-Muslim needs over time. Thus, the classical books of Islamic jurisprudence have amply discussed its applications in various forms according to the prevailing circumstances. Today, ijarah mawsufah fi al-dhimmah is applied in the offering of various services in the Islamic finance industry relating to education, medical treatment, tourism, hajj and 'umrah, among others. Nevertheless, its applications involve a number of Shari'ah issues concerning the advance rental payment, the subject matter of the contract and its fiqh characterization. The primary purpose of this paper is accordingly to examine the key Shari'ah issues arising in the current applications of ijarah mawsufah fi al-dhimmah in the Islamic finance industry and to determine their juristic stance. Since ijarah mawsufah fi al-dhimmah shares the characteristics of both ijarah and salam (forward sale), this paper also aims to examine the most relevant contract applicable in ijarah mawsufah fi al-dhimmah.

  • Publication
    The evolution of Islamic venture capital in Malaysia: an expository study
    Mahamad 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.

  • Publication
    Zakat al-duyun al-masrifiyat al-muajalat: al-ithar al-nazari 'ard wa taqwim
    Riaz Ansari; Said Bouheraoua; Sa'id Adekunle Mikail (International Shari'ah Research Academy for Islamic Finance (ISRA), 2016)

    This research examines the issue of zakah on non-current banking debts within its theoretical framework. The main problems dealt with are the conflicting contemporary juristic opinions on the issue of zakah on non-current banking debts as well as the conflicting ways that these opinions have been implemented. This makes it necessary to pinpoint the most important causes for the controversy and to identify the weightiest opinion on the matter. The study begins by defining non-current banking debts and identifying their most salient characteristics. It then undertakes an explanation of the classical scholarly controversy regarding zakah on debts which are not yet due. The authors have chosen the second view, which is that zakah is obligatory on debts that are currently due and upon the capital and profits that will come due during the current financial year. Nevertheless, the authors see the necessity of an empirical study relying upon experts in the calculation of zakah to explore the economic impact that implementation of each of the three views mentioned would have and to choose the opinion that secures justice for both sides of the zakah function (those upon whom it is due and its rightful recipients). Regarding the aggregate wealth upon which zakah is due, the study has examined the views of contemporary scholars on the zakat able wealth of financial institutions. This is determined by accounting for all of the institution's assets and all of its liabilities. The study explains the most prominent resolutions on this matter, as well as the evidence cited, without voicing a preference for one resolution over another. The study also deals with the scholarly controversy regarding the zakah obligation on the government's share in Islamic financial institutions in which it owns all or part of the shareholder capital. The authors favor the third approach regarding the obligation of zakah on mixed wealth, that if the government rules it to be obligatory it shall be levied on all the shares, including those of the government.

  • Publication
    Application of doctrine of judicial precedent in Shariah courts
    Kyaw 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.

  • Publication
    Framework for financial hardship indebtedness management in abandoned housing projects in Malaysia
    Noor 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.

  • Publication
    The emerging Shari'ah issues of the COVID-19 pandemic in contemporary Islamic financial applications
    Said Bouheraoua; Sa'id Adekunle Mikail; Fares Djafri (International Shari'ah Research Academy for Islamic Finance (ISRA), 2021)

    The outbreak of the coronavirus epidemic (COVID-19), classified by the World Health Organization as a pandemic, has led to the emergence of many challenges. It started as a health crisis and then turned into a global economic crisis that most countries could not manage or control as a result of lockdown policies and restrictions on movement and travel. This is not to mention the forms of damage that have affected the contractual obligations and rights of various contracting parties at the level of financial institutions such as banks, takaful companies and others. The challenges imposed by the coronavirus pandemic have led to a reexamination of the fiqh treatment of catastrophes. The role of Islamic economic experts and the Islamic financial industry has had to be clarified in addressing its effects on contractual relations and future obligations in distressed financing contracts. The theory of catastrophes (jawa'ih) is one of the most important jurisprudential theories in Islamic fiqh. It comprises a set of principles and provisions that deal with the harmful effects upon one of the parties bound by a contract as a result of damage to what the party is obliged to deliver, or failure to obtain the intended benefit from the obligation. It is based on achieving justice in the practical application of financial transaction contracts, removing difficulty, taking into account arising circumstances, and preventing abuse in the exercise of rights and the freedom to contract. It thus regulates the rights of people related to the exchange of properties and usufructs.

  • Publication
    Corporate waqf via initial public offering (IPO): a viable instrument for the sustainability of Malaysia's higher learning institutions
    Mohamed Ibrahim Negasi; Mahadi Ahmad; Sa'id Adekunle Mikail; Noor Suhaida Kasri (International Shari'ah Research Academy for Islamic Finance (ISRA), 2020)

    The need for sustainable funding of institutions of higher learning led the Government of Malaysia to formulate its Universities Transformation Programme 2015-2025. This transformation agenda came out as the Purple Book which highlighted the need to address the funding gap that may occur in the education sector in the event of unexpected budget cuts. It called for the enhancement of income generation, endowments and waqf to achieve self-sustainability for higher learning institutions (Ministry of Higher Education Malaysia, 2016). Based on the above premise, this research explores the viability of corporate waqf via initial public offering (IPO) as an instrument to raise funds and sustain Malaysia's higher learning institutions. Corporate waqf, as defined by the Securities Commission Malaysia, refers to: A type of corporate [financial] instrument where liquid-asset-like shares or securities [are] endowed as waqf assets and [sic] thus enabling the waqf institutions to benefit from the dividend that can finance any welfare project or initiative (Securities Commission Malaysia 2014, p. 17).

  • Publication
    Protecting takaful against the risk of failure: a critical appraisal of the takaful benefits protection system (TBPS) in Malaysia
    Shaikh 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.

  • Publication
    A critical study on Shari'ah compliant and Shari'ah based products in Islamic banking
    Mahamad 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.

  • Publication
    Al-manzumat al-qanuniyat wal raqabiyat wa atharuha fi tahqiq himayat hamlat al-sukuk: tajribat Maliziya
    Sa'id Adekunle Mikail (IIUM Press, 2021)

    One of the basics of the regularity of the Islamic financial industry is that it is subject to many legal and regulatory protections that directly or indirectly affected the progress of its financing and investment activities. The Islamic capital market sector, especially sukuk, is one of the most affected products. However, the tradability of sukuk at the international and local levels may be hindered by differences in the legal system and jurisprudential schools of thought, which may lead to a lack of certainty and a defect in the applicable laws. There is no doubt that investing in sukuk requires providing reassurance and confidence from investors on the abundance of the necessary protection from the law, the supervisory apparatus, the unity of the regulatory framework and its adequacy with the nature of sukuk. In this context, this research comes to study the legal and supervisory system applied to sukuk in Malaysia and how to it help sactualize sukuk-holders� protection. A descriptive and analytical approach were employed to study the status of this system and the relevant data and sources, along with its analysis, to derive the elements of protection for sukuk holders.The research finds that the most important objectives of the legal and regulatory system lie in gaining the confidence of investors, providing reassurance, transparency, and consolidating justice, the difference in laws and the instability of regulatory systems are stumbling blocks to all that. It is noteworthy that the development of the Islamic finance industry is in urgent need to either have its own regulatory framework or to improve the existing ones to address challenges or reduce them. It should be given competitive opportunities with the conventional financial industry on an equal footing.

  • Publication
    Historical development of Islamic venture capital: an appraisal
    Rusni 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.