Resolutions of the SC Shariah Advisory Council

Resolutions of the Securities Commission Shariah Advisory Council, Second Edition (pdf)
Resolutions of the Shariah Advisory Council of the Securities Commission Malaysia, 31 December 2019 (pdf)

Bahasa Malaysia

Keputusan Majlis Penasihat Syariah Suruhanjaya Sekuriti Malaysia, Edisi Kedua (pdf)
Keputusan Majlis Penasihat Syariah Suruhanjaya Sekuriti Malaysia, 31 Disember 2019 (pdf)

New Resolutions of the SC Shariah Advisory Council

The 226th Shariah Advisory Council Of The Securities Commission Malaysia Meeting (13 November 2019)

Revised Resolution on Utilisation of Sukuk Proceeds for Refinancing of Outstanding Conventional Borrowings
Background
The Shariah Advisory Council (SAC) of the Securities Commission Malaysia (SC) had, in series of its meetings, deliberated on the issue in relation to the utilisation of sukuk proceeds for refinancing of outstanding conventional borrowings that were used for Shariah non-compliant purposes. This issue was related to the previous SAC resolution on utilisation of sukuk proceeds for refinancing of outstanding conventional borrowings where the SAC had resolved at the 190th SAC meeting held on 27 October 2016 that the sukuk proceeds may be utilised to refinance (wholly or partly) outstanding conventional borrowings (Previous Utilisation of Sukuk Proceeds for Refinancing Outstanding Conventional Borrowings Resolution).

Issue
The issue in deliberation was whether the utilisation of sukuk proceeds for refinancing of outstanding conventional borrowings that were used for Shariah non-compliant purposes complies with the Previous Utilisation of Sukuk Proceeds for Refinancing Outstanding Conventional Borrowings Resolution.
Resolution
The SAC had, at its 226th meeting held on 13 November 2019, resolved that the sukuk proceeds may be utilised to refinance (wholly or partly) outstanding conventional borrowings provided that the outstanding conventional borrowings which were used for activities or purposes that are prohibited by Shariah is not more than 49% of the total outstanding conventional borrowings.

Notwithstanding the above, if a company that carries out Shariah non-compliant business activities is in the process of converting its business into a fully Shariah compliant business, the sukuk proceeds may be utilised to refinance (wholly or partly) its outstanding conventional borrowings.

This resolution is applicable to the issuer and the issuer’s group of companies and it shall supersede the Previous Utilisation of Sukuk Proceeds for Refinancing Outstanding Conventional Borrowings Resolution.
The 224th Shariah Advisory Council Of The Securities Commission Malaysia Meeting (26 September 2019)
(1) Waiver of Sukukholders’ Right on the Capital and/or any Payment Obligation in Additional Tier 1 Sukuk and Tier 2 Sukuk
Background
The Shariah Advisory Council (SAC) of the Securities Commission Malaysia (SC) had, at its 224th meeting held on 26 September 2019 discussed issues arising from the industry proposals relating to Additional Tier 1 Sukuk (“AT1 Sukuk”) and Tier 2 Sukuk.

Issue
The issues in deliberation were on the following matters which relate to the relevant policy document on capital adequacy framework issued by Bank Negara Malaysia:
whether there is any Shariah concept that may be applied in the situation that may require the AT1 Sukuk structured based on the Shariah principles of musharakah, mudharabah or wakalah bi al-istithmar, whichever is applicable, to be written-off at the point of non-viability or loss absorption events;
whether there is any Shariah concept that may be applied in the situation that may require the Tier 2 Sukuk structured based on the Shariah principles of wakalah bi al-istihmar, murabahah or ijarah, whichever is applicable, to be written-off at the point of non-viability event; and
whether there is any Shariah concept that may be applied in the situation whereby the payment of profit arising from the AT1 Sukuk structured based on the Shariah principles of musharakah, mudharabah or wakalah bi al-istithmar, whichever is applicable, to be waived at the periodic distribution date.
Resolution
The SAC has resolved as follows:
(1) Write-off of AT1 Sukuk at the point of non-viability or loss absorption events

AT1 Sukuk structured based on the Shariah principles of musharakah, mudharabah or wakalah bi al-istithmar, whichever is applicable, may be written-off (in whole or in part) at the point of non-viability or loss absorption events based on the following Shariah concepts (whichever applicable):
tanazul, whereby the sukukholders waive their rights or interests on the capital payment or profit payment (if any); or
ibra’, whereby the sukukholders release their rights of claim on any amounts due,
arising from the AT1 Sukuk.
(2) Write-off of Tier 2 Sukuk at the point of non-viability event
a. Tier 2 Sukuk structured based on the Shariah principle of wakalah bi al-istithmar may be written-off (in whole or in part) at the point of non-viability event based on the following Shariah concepts (whichever applicable):
tanazul, whereby the sukukholders waive their rights or interests on the capital payment or profit payment (if any); or
ibra’, whereby the sukukholders release their rights of claim on any amounts due,
arising from the Tier 2 Sukuk;
(b) Tier 2 Sukuk structured based on the Shariah principle of murabahah may be written-off (in whole or in part) at the point of non-viability event based on the Shariah concept of ibra’, whereby the sukukholders release their rights of claim on any amounts due arising from the Tier 2 Sukuk; and
(c) Tier 2 Sukuk structured based on the Shariah principle of ijarah may be written-off (in whole or in part) at the point of non-viability event based on the following:
the Shariah concept of ibra’, whereby the sukukholders release their rights of claim on any amounts due arising from the Tier 2 Sukuk; and
the Shariah principle of hibah, whereby the sukukholders give away their rights in the asset under the Tier 2 Sukuk (from the principal amount, in whole or in part) without any consideration.
(3) Cancellation of discretionary payment by the issuer of AT1 Sukuk
The payment of profit arising from the AT1 Sukuk structured based on the Shariah principles of musharakah, mudharabah or wakalah bi al-istithmar, whichever is applicable, that is due on the periodic distribution date may be waived (in whole or in part) by the sukukholders based on the Shariah concept of tanazul.
(2) Revised Resolution on Asset Pricing Requirements for Sukuk Issuance
Background
The Shariah Advisory Council (SAC) of the Securities Commission Malaysia (SC) had, at its 224th meeting held on 26 September 2019 discussed on the amendments to the Shariah requirements for sukuk. One of the issues discussed was on the existing SAC of SC resolution on asset pricing requirements for sukuk issuance.

Issue
The issue in deliberation was whether the asset pricing requirements would also be applicable for sukuk structured based on any Shariah principles without limiting to sukuk structured based on `uqud mu`awadhat (such as bai` bithaman ajil, murabahah, istisna` and ijarah) or wakalah bi al-istithmar which involves the components of sale and purchase of assets or commodities murabahah.
Resolution
The SAC has resolved as follows:
(1) The asset purchase pricing of an identified asset for sukuk issuance that involve the sale and purchase of identified assets which are structured based on any Shariah principles is permissible subject to the requirements in item (2) below.
(2) The purchase price of an identified asset under sukuk issuance must not exceed 1.51 times of:
the fair value of the asset; or
any other appropriate value of such asset.
(3) The asset pricing requirements under item (2) above are not applicable for sukuk which are structured based on any Shariah principles that does not involve the sale and purchase of identified assets including but not limited to sukuk ijarah that involves the lease and lease-back of the identified assets.
The 219th Shariah Advisory Council Of The Securities Commission Malaysia Meeting (25 April 2019)

1) Guarantee of Profit by a Third Party, Sister Company and Associate Company of the Sukuk Issuer in Sukuk based on `Uqud Ishtirak and `Aqd Wakalah bi al-Istithmar

Background
The Shariah Advisory Council (SAC) of the Securities Commission Malaysia (SC) had, in series of its meetings, deliberated on the following issues:

(i) guarantee of profit by a third party, sister company and associate company of the sukuk issuer; and

(ii) imposition of ujrah (fee) on such guarantee,

in sukuk based on`uqud ishtirak and `aqd wakalah bi al-istithmar.

Issue
The issue in deliberation was on whether a third party, sister company and associate company of the sukuk issuer may guarantee profit and impose ujrah on such guarantee in sukuk based on `uqud ishtirak and `aqd wakalah bi al-istithmar.
Resolution
The SAC had, at its 219th meeting held on 25 April 2019, resolved that it is permissible for a third party, sister company and associate company of the sukuk issuer:
(i) to provide guarantee on profit; and
(ii) to impose ujrah on such guarantee,
in sukuk based on`uqud ishtirak and ` aqd wakalah bi al-istithmar.

2) Shariah Non-Compliant Assets as Collateral in Islamic Capital Market Products

Background
The Shariah Advisory Council of the Securities Commission Malaysia (the SAC) had, in its 219th meeting held on 25 April 2019, deliberated on the issue of Shariah non-compliant assets as collateral in Islamic capital market (ICM) products.

Issue
The issue in deliberation was on the permissibility of using Shariah non-compliant assets as collateral in ICM products.

Resolution
The SAC resolved the following:

(1) Asset which is valuable and recognised by Shariah may be used as collateral in ICM products. These assets include:
(i) A physical asset that is used to carry out activities which are Shariah compliant and/or Shariah non-compliant.
(ii) A financial asset that is Shariah compliant and/or Shariah non-compliant.
(2) In the case where Shariah non-compliant financial asset is used as collateral, the SAC resolved as follows:
(i) Ordinary Shares and Preference Shares
(a) Shariah non-compliant ordinary shares and preference shares of companies listed on Bursa Malaysia; and
(b) Shariah non-compliant ordinary shares and preference shares of unlisted companies,
may be accepted as collateral provided that the core business of the companies is Shariah compliant based on the confirmation by the Shariah advisers registered with the Securities Commission Malaysia. The total value of the Shariah non-compliant ordinary shares and preference shares may be accepted as the collateral value.
(ii) Shariah Non-Compliant Financial Asset other than Ordinary Shares and Preference Shares
Shariah non-compliant financial asset other than the ordinary shares and preference shares as stated in item (2)(i)(a) and (b) above may be accepted as collateral provided that the value of the collateral is limited to the Shariah compliant portion only. In this regard:
(a) The collateral value of the Shariah non-compliant financial asset which is based on interest such as conventional fixed deposit certificate and conventional bond is limited to the principal amount of such instruments; and
(b) The collateral value of the Shariah non-compliant unit trust fund is limited to the initial investment and any additional investment by the investors.
The 217th Shariah Advisory Council Of The Securities Commission Malaysia Meeting (25 February 2019)
Shariah Screening Methodology for Listed Securities of a Stock Exchange Holding Company (SEHC)

Background
The Shariah Advisory Council (SAC) of the Securities Commission Malaysia (SC) had, in series of its meetings, deliberated on the Shariah screening methodology for an SEHC. Under the law, the SEHC has the obligation to facilitate capital raising and trading activities which include services for the listing, trading, clearing, settlement and depository of both Shariah-compliant and Shariah non-compliant listed securities (Activities Beyond Control). The SEHC also offers its own products comprising Shariah compliant and Shariah non-compliant products to be listed and traded on the stock exchange as well as other services and activities (Activities Within Control).

Issue
In determining the Shariah status of the SEHC that involved in Activities Beyond Control and Activities Within Control, what is the most appropriate Shariah screening methodology to be applied.
Resolution
The SAC had resolved that due to the nature of the SEHC as a national exchange that undertakes Activities Beyond Control and Activities Within Control, a specific two-tier business activities benchmark would be applicable in determining its Shariah status as follows:
5% Benchmark
For Activities Within Control, the contribution from the Shariah non-compliant activities to the group revenue or group profit before taxation (PBT) must be less than 5%; and
33% Benchmark
For Activities Beyond Control, the contribution from the Shariah non-compliant activities to the group revenue or group PBT must be less than 33%.
The financial ratio benchmark will continue to be applicable to the SEHC.
The 216th Shariah Advisory Council Of The Securities Commission Malaysia Meeting (31 January 2019)

Applicability of the Resolutions on Utilisation of Sukuk Proceeds to the Sukuk Issuer and the Sukuk Issuer’s Group of Companies
Background
The Shariah Advisory Council of the Securities Commission Malaysia (SAC) had, in series of its meetings, deliberated on the issue in relation to the previous SAC resolutions on utilisation of sukuk proceeds, which were resolved at the 190th SAC meeting held on 27 October 2016 (Existing Resolutions on Utilisation of Sukuk Proceeds).

Issue
The issue in deliberation was whether the Existing Resolutions on Utilisation of Sukuk Proceeds are applicable to the sukuk issuer only or it would also be applicable to the sukuk issuer’s group of companies.
Resolution
The SAC had, at its 216th meeting held on 31 January 2019, resolved that the Existing Resolutions on Utilisation of Sukuk Proceeds are applicable to the sukuk issuer and the sukuk issuer’s group of companies.