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DOLLAR. JET GAME : GAMBLING PDF Print E-mail

DOLLAR. JET GAME : GAMBLING

Q: 7- There is a system called 'Dollar Jet". Its procedure is as follows. This system is world wide and thousands of people are participating in this game. Please let us know whether it is lawful in Shari'ah.

RELAX AND GET RICH!

Gambling is expensive, but there's a recipe for success. With it, you can earn capital assets of US$ 30,000 (Thirty thousand) without any financial engagement on your part in 4-6 weeks

This is made possible by the DOLLARJET SYSTEM How does this system work?

The DOLLARJET SYSTEM is neither a lottery nor a game of chance for which you have to buy tickets, but is based on a logical arithmetical system which, consistently
followed, leads to large gain for the participants.

Everyone actively participates in the DOLLARJET system and initiates his own personal circle of players. It is this activity that not only gives you the chance, but the
certainty of winning! Lets assume you play along:

For your chance of winning $ 30,000, you first need a sum of $ 90 distributed as follows:

1. You buy this letter from the player listed in the fifth position for $ 30.

2. You pay $30 to the player listed in the first position by postal order (indispensable for correct procedure).

3. You pay $ 30 by postal order or cheque or cash to Commerce Control AG (CCI). A-1121 Vienna, Box 67.

4. After following Items 2 & 3, send the proofs of payment  (item 2) with the necessary advance payment (item 3) and the legibly completed List of names to CCI Vienna.

You will be sent 4 letters from CCI, in each of which you will be entered in fifth place in the list of the addresses. The player in first place on the list sent in by you will on the other hand be omitted after he has received $ 30, not only from you, but from 1,023 other players, provided all other players have correctly followed the instructions.

You now sell these four new letters for $ 30 each to four new acquaintances or relatives. You earn $ 120. You thus not only recover your outlay but an additional $ 30 for postage and telephone costs for your acquisition of members.

You have thus recovered your entire stake!

The four new participants now follow the rules just like you and now receive four letters each.

You are thus in fourth position in 16 letters.

Sixteen new players again receive four letters.

Then in second position in 256 letters and finally in first position in 1,024 letters.

Now every new purchaser of letters in which you are listed in first position remits $ 30 to you.

You receive $30, 720 without financial engagement on your part!

A: Participating in the play "Dollar Jet" is (Haram) unlawful, because it is a gambling. At the very outset the sponsors have indicated that it is gambling by saying "Gambling is expensive, but there's a recipe for success". Any person who spends $ 90 is actually indulging in gambling because the return is uncertain and may be any amount between zero dollar and 30,000 dollars. The mechanism suggested by the sponsors (CC1) is contingent upon the fact that all the forms will be sold as contemplated and thousands of persons will purchase them at the given price. The expected return is all imaginary and the person receiving the forms may not be able to sell even one form and his investment of $90 will be lost. Hence, it is unlawful in Shariah. Participating in this play is unlawful if anyone has already spent $ 90 and has received money in excess of $ 90 is also (Haram) and illegal property. He should return this money to its lawful owner or his heir and if this is not possible, this should be given in charity without expecting any reward (Sawab). Allah knows best.

Contemporary fatawaa

 
RIBA, ITS MEANING AND APPLICATION PDF Print E-mail

RIBA, ITS MEANING AND APPLICATION

Q: 6- Respectable Mufti Saheb: Kindly forgive me on intruding on your precious time and specially during the Holy Month of Ramadan when you will be too busy. Also please forgive me in addressing this letter in English as perhaps I may not be able to express myself more cleanly in Urdu.

You have been making research on various Islamic laws and principles which remain not clean in minds of people like me who have no knowledge or study of matters. As a learned Scholar and having vast experience and knowledge of both Islamic Laws and practices of modern period, I hope to get a reply of my query from you. Matter is the same old one - What is the position of Bank interest or profit - by whatever name it is called according to Shariah. To express whatever I understand I give below my feelings:

1. Authentic definition of Ward which has been declared by Allah and Holy Prophet saw. in Qur'an as Haram"?

2. As far as I can see the charges of profit or interest one expects to get in return of his providing money to a needy person to fulfill his requirement of daily needs in the absence of any source to fulfill these is Riba' but any such return on money used for business, to earn more money should not come under the definition of Riba.'

3. Generally it is said that if rate of profit is fixed it comes under definition of Riba' and becomes Haram' but if it linked with profit earned, it is not Riba. In my humble opinion this position is different. For example A' has got Rs. 100,0001= and he constructs a shop and gives it on fixed monthly rental for business. Or if he gives Rs. 100,0001= in cash for another business. What is the difference as far as A' is concerned. He is parting with his money, in one case he is giving it in kind and in another case in cash. Why return in both the cases be distinguished? Shop's rent is not dependent on profit or loss to the Shopkeeper. If rent paid for shop is 'rental for shop why fixed return on cash is not 'rental of money'?

This letter is just to clarify the position and correct my thinking and in no way to convert Haram into Halaal. After all after 15 Centuries, our concept should be clear at least on basic principles of our faith and we should not find excuses for justification of our (mis) deeds.

I shall be grateful to have your considered opinion for my guidance at your earliest convenience.
(M. A. Siddiqui, Operations Director, Matiari Sugar Mills Limited)

A: I received your letter dated 27th January 1997 and apologize for the delay in replying it. It was due to my overwhelming involvements both here and abroad. I hope you will forgive me for this delay. The questions you have posed have been discussed thoroughly in a number of books written on the subject both in Urdu and English. If you wish to benefit from Urdu writings I would advise you to read the following books:

"The Questions of Interest : Mufti Shafei Rah.
"Islam & Modern Business: Mufti Taqi Usmani"

You may also benefit from the book of Dr. Anwar Iqbal Qureshi, titled `Islam and the Theory of Interest".

I think if you want to be very clear on this point you should at least study these books. However, I am giving here very brief answers to your questions:

1) The legal definition of any prohibited act is seldom given in the Holy Qur'an itself. For example, wine has been prohibited but no definition of wine has been given. Similarly, adultery, telling lies, backbiting and bribery have been prohibited by the Holy Qur'an but the definitions of these acts have not been provided. Reason for it is that all these concepts were too clear in the minds of the addressees to need any such definition. The same is the case of Riba. The concept of Riba was widely recognized among the addressees of the Holy Qur'an and it is that concept which is reflected in the legal definition provided for Riba either in the Hadith or in the later literature of Islamic jurisprudence. According to this definition any transaction of loan where the payment of an additional amount on the principal is made conditional to the advance of such loan is called Riba.

2) There is no distinction in Shariah between advancing a loan to a needy person or advancing it to a business concern. The principle is that the person who advances money to another person should clearly decide whether he wishes to assist him or he wants to share in his profits. In the former case, he should withdraw from any claim of additional amount (in the form of interest) while in the latter case he should share his loss also. It is not permitted by Shariah that he claims profit but does not agree to share his loss.

Another point which needs attention here is that the distinction between a needy and a rich person in commercial matters is totally irrelevant. If a shopkeeper sells a commodity to a poor person with a margin of profit which is not excessive nobody can say that this transaction is Haram because of the poverty of the purchaser. One can say that it would be more advisable for the Shop keeper to give him the commodity either as a charity or at cost without charging a profit but it cannot be said that the marginal profit charged here is not Halaal. If charging an additional amount on a loan is not in itself Haram then the same analogy should have been applied here meaning thereby that if a creditor charges a marginal interest on the loan he has advanced to a poor person it should not be condemned or declared as Haram, but even the modernists who hold the commercial interest as Halaal admit that this kind of transaction is Riba and prohibited by the Holy Qur'an. It proves that the basis of the prohibition is not linked to the poverty of the debtor. Had it been so, charging profit from a poor person would also have been declared as Haram. Therefore, the only basis for distinction between a sale and a transaction of Riba is that the former relates to commodity while the latter relates to money.

3) There are several differences between interest and rent. The basic principle of Shariah is that profit is justified where a person has undertaken the risk of the thing given to another person. In a transaction of loan, after advancing money, the creditor does not take any risk of the money because if the money is lost in the hands of the debtor after he has taken delivery thereof the debtor is bound to repay the loan. As the creditor did not take any risk of it, therefore he cannot charge additional profit thereon. While, in the case of a property leased out to the Lessee, the Lessor has taken the risk of the property, If the property is destroyed, he will bear the loss, therefore, it is justified for him to charge rent from the Lessee. Another difference is that the property is always subject to depreciation while money does not depreciate. Therefore, charging of rent in the first case is justifiable while it is not so in the later case.

I hope that these brief answers will at least explain the basic concepts. However, for greater details you should study the books I have referred to above.

Contemporary fatawaa

 
PERMISSIBILITY OF CERTAIN FINANCIAL CONTRACTS PDF Print E-mail

PERMISSIBILITY OF CERTAIN FINANCIAL CONTRACTS

Q: 3- I have attempted to give examples of some financial contracts which can be used for various purposes - for risk reduction or hedging and speculation involving options, futures, and swaps; and direct and indirect investment in equity. Kindly let me know to what extent these are permissible under Islam.

FUTURES CONTRACTS ON STOCK EXCHANGE

Q:4- 1. An example of a future contract in shares:

i) Two individuals, A and B enter into a contract on 1st January 1996 under which A would sell a share of company X at a price of $100 to B after an expiry of six months. B has an obligation to purchase at this price irrespective of the market price on 31st June 1996.

ii) If the object of transaction is any commodity or gold, or silver, or currency and not share as in the above three cases, in what way the validity or otherwise of the contract is affected?

Please note that the non-transferability of rights and obligations severely limits the possibility of speculation on Futures Exchanges. A commonly held belief is that future contracts are prohibited when they are used for speculation. Does this imply that futures contracts are permissible when these are used for hedging?

A leading Islamic Bank's Annual Report shows that the bank entered into futures transaction for hedging its foreign currency risk. One view is that such hedging may be justified in view of extreme volatility in currency markets. (In my correspondence with a top executive of the said bank, I was given the reference of a book, Islamic Law and Finance by Chibli Mallat, I still do not have access to this book).

2. An example of an option contract in shares:

i) Two individuals, A and B enter into a contract on 1st January 1996 under which A grants a right to B without any obligation on B's part. B under the contract, gets a right to purchase a share of Company X from A any time on or before 30th June 1996 at a price of $ 100 (irrespective of the market price on the day of purchase). B, however, does not have any obligation to purchase.

A accepts a consideration of $5 from B for granting him his right without obligations. This is called a call option in shares.

ii) A and B enter into a contract on 1st January 1996 under which A grants a right to B without any obligation on B's part. B, under the contract, gets a right to sell a share of Company X to A at any time on or before 30th June 1996 at a price of $100 (irrespective of the market price on the day of purchase). B, however, does not have any obligation to sell.

A accepts a consideration of $5 from B for granting him this right without obligations. This is called a put option in shares.

iii) A and B enter into a contract on 1st January 1996 by which A sells 100 shares of Company X at a price of $100 per share. The transaction is settled with exchange of cash for the shares. A also grants a right to B under which B can sell back the shares to A on the expiry of six months, that is, 30th June 1996 at a price of $ 120 per share. This right however, is cancelled if the price of the share increases beyond $ 120 and remains at that level for 21 consecutive days before 30th June 1996.

Unlike the precious two instances of transactions in pure options, the above is a case of option as an additional feature of an equity sale and purchase.

iv) If the object of transaction is any commodity or gold, or silver, or currency and not share as in the above three cases, in what way the validity or otherwise of the contract is affected?

3. An example of an Islamic swap used by some Islamic banks:

Two banks enter into an agreement to exchange deposits for a period of six months in different currencies on 1st January 1995 at the prevailing exchange rate. Bank A exchanges Rupees 30 million with Bank B for US Dollars one million, and the Rupee-Dollar exchange rate prevailing on the date is 30:1. During these six months, each bank utilizes the deposits it received at its own risk. At the end of six months, Bank A pays back one million dollars to Bank B and receives Rupees 30 million from it irrespective of the Rupee-Dollar exchange rate prevailing on June 30, 1995, for example, the Rupee-dollar exchange rate might have become 35::1 or 25: 1 on June 30, 1995. Is this contract Islamically permissible?

4. Examples of direct and indirect investment in equity:

i) Company A raises funds by selling shares and interest-bearing bonds and invests all funds in predominantly halaal and profitable activities. Is it permissible to purchase shares of Company A for an individual?

ii) Company B raises all its funds by selling shares and invests all its funds in shares of Company A above and similar companies. Is it permissible for an individual to purchase shares of Company B ?

iii) Company X sells financial securities on which it promises dividends at a rate of 10 per cent on its total sales during the year. Is it permissible to purchase these securities where dividends are paid as a predetermined proportion of sales revenue and not profits?

Answers are as follows:

1. i) This is an example of a futures transaction. The futures transactions as in vogue in the stock and commodities markets today are not permissible for two reasons: firstly, it is a well recognized principle of Shariah that sale or purchase cannot be effected for a future date. Therefore, all forward and futures transactions are invalid in Shari'ah. Secondly, because in most of the futures transactions delivery of the commodities or their possession is not intended. In most cases, the transactions end up with the settlement of difference of prices only, which is not allowed in Shari'ah.

More detailed discussion on the Shariah aspect of futures transactions may be found in my Arabic book; `Discussions of Contemporary Juristic Issues" under the heading "Futures Contracts in Commodities".

ii) As futures transactions are not permissible, no rights or obligations can emanate therefrom. Therefore, the question of transferring these rights and obligations does not arise.

iii) Futures transactions, as explained earlier, are totally impermissible regardless of their subject matter. Similarly, it makes no difference whether these contracts are entered into for the purpose of speculation or for the purpose of hedging.

2. i, ii, iv, & v.) According to the principles of Shariah, an option is a promise to sell or to purchase a thing at a specific price within a specified period. Such a promise in itself is permissible and is morally binding on the promisor. However, this promise cannot be the subject matter of a sale or purchase. Therefore, the promisor cannot charge the promisee a fee for making such a promise.

Since the prevalent options transactions in the options market are based on charging fees on these promises, they are not valid according to Shari'ah. This ruling applies to all kinds of options, no matter whether they are call options or put options. Similarly, it makes no difference if the subject matter of the option sale is a commodity, gold or silver, or a currency; and as the contract is invalid ab-initio, the same cannot be transferred.

iii) This contract has two aspects; Firstly, if the option of selling back the shares to A has been made a precondition of the original sale transaction, the whole transaction will be invalid because, according to Shariah, a sale transaction cannot accept such a condition. Secondly, if the option is an independent promise without being a precondition for the original sale, no fee can be charged for such a promise as mentioned earlier. Although a complimentary promise of this kind is permissible in Shariah, it can not serve the purpose of the option market.

3. It is one of the principles of Shariah that two financial transactions cannot be tied up together in the sense that entering into one transaction is made precondition to entering into the second. Keeping this principle in view, the swap transaction referred to in the question is not permissible because the deposit of one million dollars has been made a precondition for accepting the deposit of 30 million rupees, since both the parties will use the deposits for their own benefit, they are termed in Shari'ah as loans (Qarz) and not as trust (Wadee'ah). Therefore, advancing one loan has been made a precondition for receiving another, which means that two financial transactions are tied up together.

This is my initial opinion about this transaction. However, it needs further study and research.

4. i) If Company A raises funds by issuing shares and interest bearing bonds and invests all funds in predominantly Halaal and profitable activities, the permissibility of purchasing shares of such a company depends on four conditions:

a. All the business activities of the company should be Halaal.

b. The shares of such a company have to be purchased after it has acquired tangible assets like machinery, buildings, raw materials or stock in trade.

c. If it becomes evident from the income statements of the company that a part of its income consists of interest given by the bank on its deposits, that proportion of the dividend must be given in charity.

For example, if the total profit of the company is $100 and 5% of it has accrued through interest received on bank deposits, then 5% of the dividend must be given in charity.

d. The shareholder should express his disagreement over depositing surplus funds in an interest bearing account and raising funds through interest bearing loans. A preferable method would be to object against    such interest bearing transactions in the annual general meeting of the company.

If the four conditions are strictly fulfilled, it is hoped that purchasing shares of such a company will be permissible in Shariah.

A possible objection which may be raised against this ruling would be that because the company had raised a considerable amount of its funds by issuing interest bearing bonds, a substantial part of its funds is impure according to Shariah; therefore, it should not be permissible to participate in such a business. This objection may be refuted on the ground that although taking an interest bearing loan is strictly prohibited in Shariah, yet the effect of this prohibition is that the persons responsible for taking such loans will be committing a sin. However, the amounts so borrowed are treated by the Shariah as their own. Although they will be liable to punishment in the Hereafter, the money borrowed comes into their ownership and anything purchased by that money will not be treated in Shariah as Haraam.

Therefore, if the capital raised by the company consists of some amounts borrowed on interest, it will not render the whole capital impure.

ii) If the four conditions mentioned above are fulfilled it will also be permissible to purchase the shares of Company B which has invested all its funds in the shares of Company A.

iii) It is necessary for the permissibility of Musharakah that the profits of the joint venture are distributed among the partners on an agreed proportion of the actual profit and not in proportion to the sale revenue. Therefore, it is not permissible to purchase the securities issued by Company X.

Contemporary fatawaa

 
THE ACCOUNTING PROFESSION PDF Print E-mail

THE ACCOUNTING PROFESSION

Q: 5-

Situation 1

Q: (a)The client hands over his bank statements to th accountant. From the bank statements the accountant records any interest charged by the bank or credited by the bank to the client.

(b) What is the position of the auditor who does not himself make the entries but merely checks to see if they are correctly recorded and reports thereon. The report of the auditor is to the shareholders and not to the bank who may also use the financial statements to assess the financial position of the business.

It should be noted that the transactions of interest have already been concluded by the bank and the customer. The historical information is then handed over by the customer to the accountant for the purpose of compiling books of accounts. These books of accounts are necessary in order inter alia to submit proper tax returns to the revenue authorities in terms of the taxation laws of the country. The question arises whether the accountant commits a breach of Islamic Law when he compiles the books of account? Is he regarded as scribe/ writer of interest in a situation where he is not a party to the transaction of interest itself?

Situation 2

An accountant is working for a company. The company charges its debtors interest on their overdue accounts. The accountant is instructed by the directors, as part of his functions, to make appropriate entries in the records of the company in terms of which interest is charged on certain
overdue accounts.

The question arises whether it is permissible in Shari'ah for such an accountant to:-

(2.1) become involved in this manner in the charging, preceding and execution of interest on overdue accounts.

(2.2) remain employed with such an employer who charges interest on overdue accounts.

(2.3) receive a salary    which is considered as halaal in Shariah from such a company a small portion whose income is represented by interest collected from debtors.

Situation 3

The accountant working for a company writes out the cheques of the company. At times the amount recorded on the cheque includes an amount for interest.

(3.1) What is the position of the person who issues out such cheques?

(3.2) Also what is the position of the signatories to such cheques?

It must be noted that the accountant himself was not an original party to the transaction of loan which gave rise to the interest obligation.

In certain circumstances, even the signatory was not an original party to the transaction.

Situation 4

A motor vehicle salesman sells a vehicle to a customer. The customer finances the vehicle through the bank upon which he pays interest. The salesman in most instances has to assist the customer in completing the application for finance to the bank by filling in details on behalf of the customer. Some application forms also have a place for the signature of the person who assisted the customer in completing his application. Will this assistance to the customer be impermissible? Does the salesman also become a witness to this interest transaction merely by assisting to complete the application? It should be noted that the financing transaction is distinct from the sale transaction and it is solely between the customer and the bank.

Situation 5

Advising on financial options

A client comes to the accountant seeking advice of the best option with regards to undertaking a certain business venture or the acquisition / purchase of an asset. Among the various options which the accountant advises him on the option of financing via a bank whereupon he will be charged interest.

(5.1) What is the position of advising with regards to such an option?

(5.2) If the client is a non-Muslim, will it make any difference?

(5.3) What is the position if the bank leases the asset and profit / rental is based on a fluctuating rate of interest?

Situation 6

For the purpose of reducing the client's taxes, various schemes are adopted. A simple practical example is where several persons (most often immediate family members) are made partners in the business. Part of their profits are accumulated in the business as further investments. For tax purposes these investments are reflected as "loans" from the respective people. Similarly the net profit that is due to them on these investments is also reflected as "Interest" to such people. In reality there is no loan or any interest. It is in fact the capital introduced and profit paid. These are just merely terms adopted in order to save taxes and to comply with the taxation laws of the country. What is the position of the accountant with regards to the recording of such interest in the light of the aforementioned hadith?

It must be noted that these are fictitious records whose source is profit or rentals.

Situation 7

A person working for a non-Muslim company invests surplus funds on instruction, it, in interest bearing securities. What is his position in relation to the said hadith?

Situation 8

In South Africa most investments have some element of interest particularly those controlled by non-Muslims. As an example a syndicate of 50 people may purchase a property. The property is controlled and administered by non-Muslims and a small portion of the income may be in the form of interest - probably less than 5%. If one disposes of the proportion of interest attributable to him, will he be absolved? Similarly how would one handle investment in a listed company on the Stock Exchange which is engaged in Halaal activities but may be involved in payment or receipt of interest as well.

Further Questions

1. With regards to those situations which clearly fall under the prohibition of recording interest, is there any way out of this by avoiding the prohibition and still getting the work done?

2. If the client's business activities are mostly of a nature which the Shariah has declared forbidden, such as he sells liquor, or trades in meat not slaughtered according to Islamic rites, can the Muslim accountant undertake to do his books?

3. A Muslim accountant works for a non-Muslim company which deals generally in Halaal merchandise, but also sells some Haraam items, such as liquor, etc. Is he committing any Shari' violation in recording the transactions pertaining to the Haraam items?

4. Is it permissible to work as an accountant or auditor for the revenue authorities of a country which is responsible for levying and collecting taxes?

5. Is it permissible for a Muslim accountant to enter into a partnership /association with a non-Muslim accountant?

6. What advice can you give to accountants in general pertaining to their profession? (Muhammad Shoaib Omar, South Africa)

A: it is true that according to a well-known hadith those who invoke the curse of Allah with regard to a transaction of Riba (interest or usury) includes a person "who has written the interest". However, this Hadith refers to the scribe of the transaction i.e. a person who has written an agreement or prepared the document to evidence the transaction. It does not include a person who was not involved in the transaction itself in any away, but while preparing the accounts of a person, has come across reference of the Riba transaction and has recorded it as an event already happened without his involvement. This is how the scholars have interpreted the Hadith. To quote Hafiz Ibn Hajar:

"This (the curse of Allah) is applicable only to a person who has supported the relevant person in the transaction of Riba being agreeable to it. However, if a person who has written the interest as matter of fact or has witnessed the occasion to testify the event as it occurred to facilitate a just action about it, then this is a good intention and is not covered by the warning mentioned in this Hadith. The reference in this Hadith is only to a person who has helped the relevant party in the transaction of Riba by writing its agreement or being a witness to it"

Al-Ubbi, the famous commentator of the Sahih of Muslim has explained the Hadith in the following manner:

"By the word "writer of Riba" the Hadith intends the scribe of the documents evidencing the transaction of Riba, and by the word 'witness" it means a person who attended the occasion to become a formal witness in support of the transaction... The Holy Prophet. has held them, all as equal in sin because the transaction took place with their joint efforts."

It is evident from these references that it is the writing of the document of Riba which invokes the curse of Allah and not its subsequent recording in a statement of the facts already happened. Therefore, the case of an Accountant of a firm or a company is different from the person who is directly responsible for the operation of interest. So far as the Accountant is not involved in initiating, proposing or helping in the transaction itself, he will, hopefully, not invoke the curse of Allah by merely recording the transaction in the books of account or in a financial statement. As a matter of precaution a Muslim should as far as possible avoid this type of recording also, however, it does not fall in the category of the clear prohibition.

In the light of the above discussion all your questions are perhaps answered. However, for the purpose of more clarity I give you a brief reply to each question seriatim:

1. In both situations (a) and (b) the Accountant does not provide any help to the transaction itself, rather he records the facts as they occurred or checks the correctness of their recording. Therefore, it does not directly fall within the ambit of the warning of the Hadith.

2. So far as the Accountant is not involved in charging interest, claiming it from the debtor or pursuing him for that matter, merely making entries in the books of account will not make him liable to fall within the ambit of the prohibition stipulated in the Hadith.

Unless the major part (at least 51%) of the company is haram it is not prohibited to draw salary for permissible services rendered to that company.

3. If the cheque is intended to be written or issued exclusively for the payment of interest with a clear statement that this should settle the amount of interest due on the issuer of the cheque, it is not permissible for any person to write or issue such a cheque. However, if the cheque is issued for the settlement of different liabilities of which interest is also a part then the issuance or writing of such a cheque cannot be termed as absolutely prohibited. This applies to both issuer and the signatories of the cheque.

4. Of course, any assistance provided to the customer for obtaining an interest bearing loan, including the filling of the application form for the loan, is not permissible according to Shariah and it does fall within the scope of the warning of the Hadith.

5. A Muslim cannot advise any one to opt for a financing based on interest. According to the most authentic view, entering into a transaction of Riba is prohibited, no matter whether the opposite party is Muslim or non-Muslim. Therefore, the above ruling is applicable to that situation also where the client is non-Muslim.

The ruling about the leasing transaction will differ from case to case. The mere fact that the rental in a lease contract has been based on the market rate of interest does not render the transaction unlawful. However, there are certain other conditions which must be fulfilled for a valid lease transaction that cannot be summarized in this letter.

6. It is the essence of the transaction only which is more important in Shariah and not the nomenclature. Therefore, if investment is named as "loan" or the profit is termed as "interest" it will in reality be neither loan nor interest and therefore will not render the transaction unlawful. Specially, when this terminology has been adopted to avoid or reduce taxes. However, if the word "loan" is replaced by the word "finance" it will be more appropriate according to Shariah, while no change is required in the word "interest" because in a wider economic sense profit is included in interest and the word "profit" can be used in that sense without being a false statement. In view of the above there is no problem if an Accountant records such amounts as interest or loans.

7. As mentioned earlier, direct involvement of a Muslim in a transaction of interest is prohibited and comes under the purview of the above Hadith. Therefore, it is not permissible for an employee of a non-Muslim to invest his surplus funds, on his instruction, in interest-bearing securities, because in this case the employee works as an agent for the employer which is a direct involvement in the transaction of Riba.

8. If the interest is not among the main commercial activities of the syndicate, rather it has accrued through interest-bearing deposits of the surplus funds, it has the same status as that of shares of joint stock companies. Therefore, it is permissible for a Muslim to become a part of this syndicate provided that he tries his best to persuade the syndicate not to be involved in any transaction of interest, and that the proportion of the interest in the aggregate income of the syndicate is given by him to charity without an intention of gaining Thawab through it.

1) I have already highlighted the areas of prohibition and the areas where the Shariah has given a leeway but where there is a clear prohibition there is no option for a Muslim except to abide by it. However, if a person is forced by  his personal circumstances to commit a prohibited act he should turn to Allah in repentance and seek His forgiveness.

2) If most of the activities of a business are Haram, a Muslim should not take up the work of that business.

3) The answer to this question is analogous to the answer to question No. 1 i.e. so far as a Muslim is not involved in a prohibited transaction directly, merely recording that transaction in the books of account is not Haram. However, a Muslim should avoid it also as far as possible.

4) It is not impermissible to work as an Accountant or Auditor for the revenue authorities of a  country which is responsible for levying and collecting taxes.

5) So far as the terms of partnership are in conformity with rules of Shariah and the work of accounting undertaken by the partnership is not violative of the injunctions of Islam, there is no bar against entering into a partnership with a non-Muslim accountant.

6) My advice is to abide by Shariah in every walk of life.

Contemporary fatawaa

 
THE LEGAL PROFESSION PDF Print E-mail

THE LEGAL PROFESSION

Q: 2- You are a Judge in the Federal Shariat Court and a well versed person in Islamic Law and concepts.
Considering this background of yours I thought you could answer or help me out in following points:

1. Is the present profession of advocacy repugnant to the Islamic Judicial System, because in that you need not pay fee or hire a lawyer to conduct your case.

2. The same question with regard to legal consultancy / advisor.

3. Is it the govt. in an Islamic state who should provide full legal assistance in respect of any matter?

4. Can the doctrine of necessity be extended in the above case considering that legal system has gone complex or developed too much.

5. In view of above points is the profession of Advocacy etc. Halaal' or Haram' under Islamic Law.

Sir, these are the points which are agitating in my mind. I hope sir, sparing some time you would throw some light on these points. I shall really be thankful to you for this kind gesture. (Muhammad Subhan Butt).

A: 1& 5. The profession of advocacy, in itself, is not prohibited. This is a service rendered to the client for which an advocate can charge a fee. However, this permissibility is subject to three conditions. Firstly, a Muslim advocate is not allowed to plead the case of a person whom he believes to be unjust. Therefore, if he knows that his client has committed an offence he is not allowed to plead for his innocence. The Holy Qur'an is very clear on this point where it says:

"And do not be an advocate for those who have committed breach of trust."

Nevertheless it is not impermissible for an advocate to plead for any concession given to the culprit under the law, for example, in the above case it is not allowed to plead for the innocence of an offender, however, it is permissible to plead for reduction of his sentence on the grounds of genuine mitigating circumstances. Secondly, it is not allowed for a Muslim advocate to help his client in claiming a right which is disapproved by the Shariah, for example, if a person wants to sue his opponent for recovering usury or interest, a Muslim advocate cannot plead his case to that extent. Thirdly, a Muslim advocate is not allowed to use prohibited means to advance the case of his client like false statement, forged documents etc. Subject to these three conditions the profession of advocacy cannot be termed as repugnant to the injunction of Holy Qur'an and Sunnah).

2. Whatever has been stated above with regard to the advocacy is equally applicable to the profession of legal consultancy.

3 & 4. There is no doubt that one of the basic responsibilities of Islamic state is that it provides justice to its citizens without undue cost. It is also advisable for it to provide full legal assistance to the people when they need it to acquire justice. However, if the resources of an Islamic state are not sufficient to provide this facility free of charge private legal consultants and practitioners may render their services by charging a fee from their clients but of course all these are subject to the three conditions already explained in answer of Question No.1.

Contemporary fatawaa

 
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