Procedural Laws Governing Event of Default in Islamic Financing in Malaysia: Issues and Challenges

Abstract

The Malaysian economy is expected to face another tumultuous year in 2019. It has been reported more than 21,000 people lost their jobs in 2018, half of whom were in Selangor and Kuala Lumpur. This rising unemployment gravely affects a person’s source of income, particularly when he/she is the sole breadwinner of the family. It further leads to the inability to pay one’s monthly commitments such as home, personal and car financing. Notwithstanding the above situation, Sharīʿah encourages leniency on the part of the creditor, that is, when the debtor is in a difficulty, to grant him/her time until it is easy for him/her to pay. Nonetheless, in Malaysia, the inability to pay debt or non-performing loan/financing entitles the financial institutions (both conventional banks and Islamic financial institutions) to proceed with legal proceedings in civil court It is trite that Islamic financing in Malaysia is governed by Sharīʿah principles and legislations, which are conventional in nature; and contractual rights and duties involving Islamic finance are enforceable in the civil court of law. This chapter examines procedural laws governing the event of default of Islamic financing in Malaysia. The methodology adopted in this chapter is doctrinal legal analysis whereby the relevant laws, namely, Rules of Court 2012, Insolvency Act 1967, Limitation Act 1953, Evidence Act 1950, Court of Judicature Act 1964 and the National Land Code 1965 are analysed in addition to the relevant case law. The study reveals that while some of the provisions are sufficient to regulate the event of default of Islamic financing, the laws are largely inadequate. The chapter also finds a significant number of legal issues and challenges relating to event of default in Islamic financing, which require legal reform.

Citation

Ali, S.A.B.M., Hassan, R. and Othman, A.A. (2019), "Procedural Laws Governing Event of Default in Islamic Financing in Malaysia: Issues and Challenges", Oseni, U.A., Hassan, M.K. and Hassan, R. (Ed.) Emerging Issues in Islamic Finance Law and Practice in Malaysia, Emerald Publishing Limited, Leeds, pp. 193-207. https://doi.org/10.1108/978-1-78973-545-120191017