Application of law of evidence to Islamic banking with special reference to Malaysia

Aishath Muneeza

International Journal of Islamic and Middle Eastern Finance and Management, 2017, vol. 10, issue 4, 503-518

Abstract: Purpose - This research aims to deal with the law of evidence invoked in Islamic banking cases reported in Malaysia from 1983 to 2015 and determine whether the invoked provisions of the statute in the case law have any conflicts with Islamic law that are threatening the development of Islamic banking in Malaysia. Design/methodology/approach - The methodology used in this research is assessing the implication by studying the provisions of the law of evidence that has been invoked in the reported case law. Findings - It is evident from this research that following are the evident conflicts found in theEvidence Act 1950. In this arena, the following changes are significant for sustaining Islamic banking in Malaysia. Expert opinion under Section 45 of the Evidence Act 1950 should be amended such that in Islamic banking, under this Act, expert opinion can be sought by the court. The rule and exceptions of parol evidence in Sections 91 and 92 of the Evidence Act 1950 need to be amended such that in Islamic banking matters, anything that is contrary toSharicahis mentioned in the contract; this amendment will be an exception to the parol evidence rule on the grounds that the written Islamic contract can be amended or set aside depending on the circumstances of the case. Originality/value - It is anticipated that this research will assist jurisdictions to understand that even adjective laws applicable to Islamic banking will be harmonized with Islamic law. This is because the prefix Islam attached to the term banking is not merely a namesake, but it means more than that, i.e. all aspects of Islamic banking will be consistent with Islamic law.

Keywords: Islamic banking; Islamic finance; Islamic law; Islamic banking and finance; Islamic banking regulation; Law of evidence (search for similar items in EconPapers)
Date: 2017
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Persistent link: https://EconPapers.repec.org/RePEc:eme:imefmp:imefm-02-2016-0025

DOI: 10.1108/IMEFM-02-2016-0025

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