the role of Cassation judiciary in the stability and development of financing and investment contracts in Islamic financial institutions.
3 dawoud binessa
islamic law & comparative jurisprudence - kilaw - kuwait
Abstract
Abstract All praise is due to Allah, and Allah's Peace and Blessings be upon His Final Messenger, his pure family, his noble Companions, and all those who follow them with righteousness until the Day of Judgment. This study examines the role of the judiciary of Cassation in the stability and development of financing and investment contracts in Islamic financial institutions. The role of this judiciary, as a legislative body, is part of governance system that is applied to institutions. There are many presumptions regarding sharia rulings (Ijtihad) which are determined by members of Fatwa and Sharia Supervisory bodies in Islamic banks and financial institutions, including certain organizations, such as Accounting and Auditing Organization for Islamic Financial Institutions (AAOIFI), and others. These presumptions regarding sharia rulings are included and stipulated in the contracts concluded between investors. However, these presumptions regarding sharia rulings may be regarded by the legislator, or the governor, as contrary to the interest of investment or the development of contracts. As a result, the legislator may issue judgments that are in contrary to these presumptions regarding sharia rulings. Therefore, the purpose of this paper, whose approaches are adopted by the researcher, is to highlight the role of Cassation judiciary in maintaining the stability and development of financing and investment contracts. These suggested presumptions regarding sharia rulings have spread and may worsen with time, unless we find the mechanism to control these presumptions according to sharia policy, sharia rulings, interest, and sharia objectives. And this will only be possible through linking the origin of contract, addressing sharia fundamentals that are appropriate to this study, as well as examining and analyzing these fundamentals, and extracting the correct meanings to determine opinions and rulings. This paper further explains the primary role of Cassation judiciary. This paper is divided into an introduction, two chapters, and a conclusion. In the first chapter, the attention is entirely devoted to the general framework of Cassation’s principles and provisions in terms of its conception and ideas. Furthermore, the first chapter examines Cassation’s provisions and their role in the development of financing and investment contracts. Second chapter addresses the guarantees presented by Cassation to make contracts effective. It also explains the role and impact of the governance that is applied to institutions, Where some sharia board have endeavored to include texts in contracts concluded between investors that violate the original contract in accordance with the provisions and principles of Islamic Sharia. However, this paper answers many questions, especially: - What is the role of Cassation judiciary in the stability and development of financing and investment contracts? - What is the best mechanism that can control fiqh rulings? The researcher uses descriptive analytical approach and critical approach, In the findings, the researcher concludes that Cassation judiciary has by far primary role and direct effect on controlling contracts. In addition, the researcher concludes that a lack of good governance has been found in various aspects. This, in turn, affects investment’s stability and development.
Keywords
Cassation principle, Provisions and rulings, Controlling, Encouragement, Contracts, Agency (Wakala) in investment.
