Islamic banking in non-Muslim countries

The modern commercial banking system in nearly all countries of the world is mainly evolved from and modelled on the practices in Europe, especially that in the United Kingdom. The philosophical roots of this system revolves around the basic principles of capital certainty for depositors and certainty as to the rate of return on deposits. In order to enforce these principles for the sake of the depositors and to ensure the smooth functioning of the banking system Central Banks have been vested with powers of supervision and control. All banks have to submit to the Central Bank rules. Islamic banks which wish to operate in non-Muslim countries have some difficulties in complying with these rules. We will examine below the salient features.³²

4.4.1 Certainty of capital and return

While the conventional banks guarantee the capital and rate of return, the Islamic banking system, working on the principle of profit and loss sharing, cannot, by definition, guarantee any fixed rate of return on deposits. Many Islamic banks do not guarantee the capital either, because if there is a loss it has to be deducted from the capital. Thus the basic difference lies in the very roots of the two systems. Consequently countries working under conventional laws are unable to grant permission to institutions which wish to operate under the PLS scheme to functions as commercial banks. Two official comments, one from the UK an the other from the USA suffice to illustrate this.
Sir Leigh Pemberton, the Governor of the Bank of England, told the Arab Bankers’ Association in London that:³³

• It is important not to risk misleading and confusing the general public by allowing two essentially different banking systems to operate in parallel;
• A central feature of the banking system of the United Kingdom as enshrined in the legal framework is capital certainty for depositors. It is the most important feature which distinguished the banking sector from the other segments of the financial system;
• Islamic banking is a perfectly acceptable mode of financing but it does not fall within the definition of what constitutes banking in the UK;
• The Bank of England is not legally able to authorise under the Banking Act, an institution which does not take deposits as defined under that Act;
• The Islamic facilities might be provided within other areas of the financial system without using a banking name.

In the United States, Mr Charles Schotte, the US Treasury Department specialist in regulatory issues has remarked:³⁴

There has never been an application for an Islamic establishment to set up either as a bank or as anything else. So there is no precedent to guide us. Any institution that wishes to use the word ‘bank’ in its title has to guarantee at least a zero rate of interest -- and even that might contravene Islamic laws.

4.4.2 Supervision and control

Besides these, there are other concerns as well. One is the Central Bank supervision and control. This mainly relates to liquidity requirements and adequacy of capital. These in turn depend on an assessment of the value of assets of the Islamic banks. A financial advisor has this to say:³⁵

The bank of England, under the 1979 Act, would have great difficulty in putting a value on the assets of an Islamic institution which wanted to operate as a bank in the UK. The traditional banking system has much of its assets in fixed interest instruments and it is comparatively easy to value that. For example, if they are British Government instruments they will have a quoted market value; and there are recognised methods for valuing traditional banking assets when they become non-productive. But it is very difficult indeed to value an Islamic asset such as a share in a joint venture; and the Bank of England would have to send a team of experienced accountants into every Islamic bank operating in the UK as a bank under the 1979 Act, to try to put a proper and cautious value on its assets.

Another financial analyst states:³⁶

Even if a method could be found for assessing the risks to calculate the capital necessary, little comfort could be taken from the profitability which is usually relied upon to cover day-to-day losses arising from the bank’s business, because a substantial part of an Islamic bank’s portfolio is venture capital without any guaranteed return.

It is evident then that even if there is a desire to accommodate the Islamic system, the new procedures that need be developed and the modifications that need be made to existing procedures are so large that the chances of such accommodation in a cautious sector such as banking is very remote indeed. Any relaxation of strict supervision is precluded because should an Islamic bank fail it would undermine the confidence in the whole financial system, with which it is inevitably identified. As Suratgar puts it:³⁷

There could be potential dangers for the international system, where the failure of such an institution could bring with it the failure of other associated institutions, or of all the Western banking institutions which come closely tied to with such an operation.

The question has engaged the attention of Central Banks in Muslim countries as well. But reliable satisfactory methods are still to developed.

4.4.3 Tax regulations

Another important consideration is the tax procedures in non-Muslim countries. While interest is a ‘passive’ income, profit is an earned income which is treated differently. In addition, in trade financing there are title transfers twice -- once from seller to bank and then from bank to buyer -- and therefore twice taxed on this account decreasing the profitability of the venture. The Director of the International Islamic Bank of Denmark says:³⁸

Tax laws are against the Islamic philosophy and pose the greatest difficulty. In most OECD countries Mudarabha is constrained by fiscal acts which define profits as an after tax item for the profit creator and a fully taxable item for the profit receiver.

4.5 Discussion and suggestions

People have needs -- food, clothes, houses, machinery, services; the list is endless. Entrepreneurs perceive these needs and develop ways and means of catering to them. They advertise their products and services, peoples expectations are raised and people become customers of the entrepreneur. If the customers’ needs are fulfilled according to their expectations they continue to patronise the entrepreneur and his enterprise flourishes. Otherwise his enterprise fails and people take to other entrepreneurs.
Banks too are enterprises; they cater to peoples’ needs connected with money -- safe-keeping, acquiring capital, transferring funds etc. The fact that they existed for centuries and continue to exist and prosper is proof that their methods are good and they fulfil the customers’ needs and expectations. Conventional commercial banking system as it operates today is accepted in all countries except the Islamic world where it is received with some reservation. The reservation is on account of the fact that the banking operations involve dealing in interest which is prohibited in Islam. Conventional banks have ignored this concern on the part of their Muslim clientele. Muslims patronised the conventional banks out of necessity and, when another entrepreneur -- the Islamic banker -- offered to address their concern many Muslims turned to him. The question is: has the new entrepreneur successfully met their concerns, needs and expectations? If not he may have to put up his shutters!
Broadly speaking, banks have three types of different customers: depositors, borrowers and seekers of bank’s other services such as money transfer. Since services do not generally involve dealing in interest Muslims have no problem transacting such businesses with conventional banks; neither do Islamic banks experience any problems in providing these services. Among the depositors there are current account holders who too, similarly, have no problems. It is the savings account holders and the borrowers who have reservations in dealing with the conventional banks. In the following paragraphs we will see how well the Islamic banks have succeeded in addressing their customers’ special concern.

4.5.1 Savings accounts and capital guarantee

As pointed out earlier, our concern here is the savings account holders. As the name itself indicates the primary aim of the saving account depositor is the safe-keeping of his savings. It is correctly perceived by the conventional banker and he guarantees the return of the deposit in toto. The banker also assumes that the depositor will prefer to keep his money with him in preference to another who might also provide the same guarantee if the depositor is provided an incentive. This incentive is called interest, and this interest is made proportional to the amount and length of time it is left with the bank in order to encourage more money brought into the bank and left there for longer periods of time. In addition, the interest rate is fixed in advance so that the depositor and the banker are fully aware of their respective rights and obligations from the beginning. And laws have been enacted to guarantee their enforcement. In Economic theory the interest is often taken to be the “compensation” the depositors demand and receive for parting with their savings. The fact that the depositors accept the paid interest and that, given other things being equal, they prefer the bank or the scheme which offers the highest interest proves the banker’s assumption correct.
The scheme is simple, transparent and seems to have satisfied the requirements of all types of savers -- from teenagers to old-age pensioners, from individuals to large institutions, pension funds and endowments, from small amounts to millions, and from a few weeks or months to years -- that it has survived over centuries and operates across national, cultural and religious borders.
The situation is very different in the Islamic banks. Here too the depositor’s first aim is to keep his savings in safe custody. Islamic bankers divide the conventional savings account into two categories (alternatively, create a new kind of account): savings account and investment account. The investment accounts operate fully under the PLS scheme -- capital is not guaranteed, neither is there any pre-fixed return. Under the savings account the nominal value of the deposit is guaranteed, but they receive no further guaranteed returns.³⁹ Banks may consider funds under the savings accounts too as part of their resources and use it to create assets. This is theory. In practice, however, the banks prefer, encourage and emphasise the investment accounts. This is because since their assets operate under the PLS scheme they might incur losses on these assets which losses they cannot pass onto the savings accounts depositors on account of the capital guarantee on these accounts. In the process the first aim of the depositor is pushed aside and the basic rule of commercial banking --capital guarantee-- is broken.⁴⁰
It is suggested that all Islamic banks guarantee the capital under their savings accounts. This will satisfy the primary need and expectation of an important section of the depositors and, in Muslim countries where both Islamic and conventional banks co-exist, will induce more depositors to bank with the Islamic banks. At the same time, it will remove the major objection to establishing Islamic banks in non-Muslim countries.
But the question is how does the bank make an income from these deposits? We will examine this in the next section.

4.5.2 Loans with a service charge

We have already seen that all the problems of the Islamic banks arise from their need to acquire their assets under the PLS scheme. A simple solution does, in fact, already exist in the current theories of Islamic banking. It need only be pointed out and acted upon. We will examine the provisions in the Iranian, Pakistani and the Siddiqi models.⁴¹
All three models provide for loans with a service charge. Though the specific rules are not identical, the principle is the same. We suggest that the funds in the deposit accounts (current and savings) be used to grant loans (short- and long-term) with a service charge. By doing this the Islamic banks will be able to provide all the loan facilities that conventional banks provide while giving capital guarantee for depositors and earning an income for themselves. Furthermore, and it is important, they can avoid all the problems discussed in section 4.3. This would also remove the rest of the obstacles in opening and operating Islamic banks in non-Muslim countries.
The bonus for the borrowers is that the service charge levied by the Islamic banks will necessarily be less than the interest charged by conventional banks.
Let us now look at the existing relevant rules in the three models. The Iranian model provides for Gharz-al hasaneh whose definition, purpose and operation are given in Articles 15, 16 and 17 of Regulations relating to the granting of banking facilities:⁴²

Article 15

Gharz-al-hasaneh is a contract in which one (the lender) of the two parties relinquishes a specific portion of his possessions to the other party (the borrower) which the borrower is obliged to return to the lender in kind or, where not possible, its cash value.

Article 16

... the banks ... shall set aside a part of their resources and provide Gharz-al-hasaneh for the following purposes:

(a) to provide equipment, tools and other necessary resources so as to enable the creation of employment, in the form of co-operative bodies, for those who lack the necessary means;

(b) to enable expansion in production, with particular emphasis on agricultural, livestock and industrial products;

(c) to meet essential needs.

Article 17

The expenses incurred in the provision of Gharz-al-hasaneh shall be, in each case, calculated on the basis of the directives issued by Bank Markazi Jomhouri Islami Iran⁴³ and collected from the borrower.

In Pakistan, permissible modes of financing include:⁴⁴

Financing by lending:

(i) Loans not carrying any interest on which the banks may recover a service charge not exceeding the proportionate cost of the operation, excluding the cost of funds and provisions for bad and doubtful debts. The maximum service charge permissible to each bank will be determined by the State Bank from time to time.

(ii) Qard-e-hasana loans given on compassionate grounds free of any interest or service charge and repayable if and when the borrower is able to pay.

Siddiqi has suggested that 50 percent of the funds in the ‘loan’ (i.e. current and savings) accounts be used to grant short-term loans.⁴⁵ A fee is to be charged for providing these loans:⁴⁶

An appropriate way of levying such a fee would be to require prospective borrowers to pay a fixed amount on each application, regardless of the amount required, the term of the loan or whether the application is granted or rejected. Then the applicants to whom a loan is granted may be required to pay an additional prescribed fee for all the entries made in the banks registers. The criterion for fixing the fees must be the actual expenditure which the banks have incurred in scrutinising the applications and making decisions, and in maintaining accounts until loans are repaid. These fees should not be made a source of income for the banks, but regarded solely as a means of maintaining and managing the interest-free loans.

It is clear from the above that all three models agree on the need for having cash loans as one mode of financing, and that this service should be paid for by the borrower. Though the details may vary, all seem to suggest that the charge should be the absolute cost only. We suggest that a percentage of this absolute cost be added to the charge as a payment to the bank for providing this service. This should enable an Islamic bank to exist and function independently of its performance in its PLS operations.

4.5.3 Investment under PLS scheme

The idea of participatory financing introduced by the Islamic banking movement is a unique and positive contribution to modern banking. However, as we saw earlier, by making the PLS mode of financing the main (often almost the only) mode of financing the Islamic banks have run into several difficulties. If, as suggested in the previous section, the Islamic banks would provide all the conventional financing through lending from their deposit accounts (current and savings), it will leave their hands free to engage in this responsible form of financing innovatively, using the funds in their investment accounts. They could then engage in genuine Mudaraba financing. Being partners in an enterprise they will have access to its accounts, and the problems associated with the non-availability of accounts will not arise.
Commenting on Mudaraba financing, The Economist says:⁴⁷

.... some people in the West have begun to find the idea attractive. It gives the provider of money a strong incentive to be sure he is doing something sensible with it. What a pity the West’s banks did not have that incentive in so many of their lending decisions in the 1970s and 1980s. It also emphasises the sharing of responsibility, by all the users of money. That helps to make the free-market system more open; you might say more democratic.

4.6 Conclusions

Islamic banking is a very young concept. Yet it has already been implemented as the only system in two Muslim countries; there are Islamic banks in many Muslim countries, and a few in non-Muslim countries as well. Despite the successful acceptance there are problems. These problems are mainly in the area of financing.
With only minor changes in their practices, Islamic banks can get rid of all their cumbersome, burdensome and sometimes doubtful forms of financing and offer a clean and efficient interest-free banking. All the necessary ingredients are already there. The modified system will make use of only two forms of financing -- loans with a service charge and Mudaraba participatory financing -- both of which are fully accepted by all Muslim writers on the subject.
Such a system will offer an effective banking system where Islamic banking is obligatory and a powerful alternative to conventional banking where both co-exist. Additionally, such a system will have no problem in obtaining authorisation to operate in non-Muslim countries.
Participatory financing is a unique feature of Islamic banking, and can offer responsible financing to socially and economically relevant development projects. This is an additional service Islamic banks offer over and above the traditional services provided by conventional commercial banks.