Legal Analysis of The Implementation of Amanah Hibah Contracts in The Islamic Financial Industry in Malaysia

• Published in: AKADEMIKA
• Main Authors: Arif, Mohd Izzat Amsyar Mohd; Adenan, Faezy; Moidin, Shofiyyah
• Format: Article
• Language: Malay
• Published: PENERBIT UNIV KEBANGSAAN MALAYSIA 2023
• Subjects: Social Sciences - Other Topics
• Online Access: https://www-webofscience-com.uitm.idm.oclc.org/wos/woscc/full-record/WOS:001194612000015

The concept of hibah instruments is one of Islamic philanthropy, which involves giving to someone without expecting anything in return. From this classical form of hibah, it has been innovated into a trust hibah product, which is an instrument for planning and managing assets in today's Islamic financial industry. The legislation on hibah in Malaysia has designated the jurisdiction of the Shariah court to hear any disputes related to hibah. Even though the hibah contract is combined with conditions of trust in the hibah declaration document, the hibah aspect will first be examined and confirmed by the Shariah court, similar to the classical hibah contract. Since the principle of judicial precedence does not apply in Shariah courts, it has led to a variety of different decisions, which are seen as potentially hindering the development of trust hibah implementation in this country. Therefore, the objective of this study is to elucidate the legal challenges in the implementation of trust hibah contracts in Malaysia. This legal study takes a qualitative approach using descriptive analysis involving data collection through various journals and supporting legal documents such as court cases, the Federal Constitution, parliamentary acts, state enactments, and Bank Negara Malaysia standards. The absence of written statutory hibah laws has sparked controversy and differing views among Shariah judges. Hence, this study has an impact on the sustainability of trust hibah product implementation within the Islamic community and the financial industry. The findings of this study suggest that specific, holistic, and comprehensive statutory hibah legislation should be formulated by each state, particularly for the implementation of trust hibah contracts.