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LATE PAYMENT CHARGE ON JUDGMENT DEBTS ARISING FROM FINANCIAL

TRANSACTIONS IN ACCORDANCE WITH SHARIAHi
(Order 42 rule 12A, Rules of Court 2012)
By
Tun Abdul Hamid Mohamad
(Former Chief Justice of Malaysia and Chairman of the Law Harmonising
Committee, Bank Negara Malaysia)

When the Rules of the High Court 1980 (RHC 1980) and the Subordinate Courts
Rules 1980 (SCR 1980) were drafted, Islamic banking had not been introduced yet
in Malaysia. So, the rules on “Interest on Judgment Debts” (Order 42 rule 12, RHC
1980 and Order 29 rule 12 SCR 1980)ii were drafted to cater for all judgment debts
without any thought being given to judgment debts arising from financial transactions
in accordance with Shariah.iii Hence, it was provided that a judgment debt carries
interest from the date of judgment until the date the judgment is fully satisfied. Of
course, “interest” is prohibited by the Shariah but that was not an issue then.

In late 1980s Islamic banking was introduced. It grew by leaps and bounds over the
next thirty years. Like the conventional counterpart, customers began to default and
civil suits were filed in courts. I understand that, unlike conventional banks, Islamic
banks did not ask the court to make an order for interest after judgment as interest
is prohibited under the Shariah.iv

However, that practice had led to two negative effects. First, Islamic banks were
losing money because they were deprived of the “interest after judgment” which
conventional banks were entitled to, which could cover the legal and related
expenses in the execution of the judgment and also the loss incurred as a result of
the delay in the settlement of the judgment debt. Secondly, there is another aspect
which is worse. As the judgment debts of Islamic banking cases carries no after-
judgment interest, it was in the interest of judgment debtors to delay the settlement
of judgment debts of Islamic banking cases. It was more profitable for them to settle
judgment debts of conventional banks first. In other words they would gain by
delaying the settlement of judgment debts in Islamic banking cases and the longer
they were able to delay, the more they would gain.

While Islamic banks suffered silently under the belief that “that is the requirement of
Shariah”, the defaulting customers, Muslims and non-Muslims, were enjoying “the
benefits of Shariah”!

I did not hear anyone doing anything about it. Perhaps it is the usual case of “Those
who know common law do not know Islamic law. Those who know Islamic law do not
know common law. And, those who think they know both have never practised law.”
At the same time I used to hear “Muslim scholars” proudly stating that a large
number (if not the majority, I can’t remember which) of customers of an Islamic bank
were non-Muslims, hinting of the “the greatness” of Islamic banking, the Shariah and
Islam. I used to tell them privately that it could be because of the weakness of
Islamic banking system or its implementation and that those customers were
exploiting it. Then, on 28 September 2009, I had the opportunity to say it publicly.
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The occasion was the Islamic Financial Services Industry Legal Forum 2009 and this
is what I said:

“There is another area, caused by the interlink, that I think should be looked into. I
am referring to the Rules of Court relating to the granting of interest by the court
upon judgment. The Rules of Court allows the court to make an order of interest of
up to 8% from the date of judgment until the date of full payment. This provision was
made long before the existence of Islamic banking in Malaysia. It was meant for all
judgments. No amendment has been made until today, for application to Islamic
banking cases.

…….. The real problem is this: so long as the provision is there, when the court
makes an order, it is in the form of interest, which is prohibited. If it is not asked for or
is refused by the court, it may encourage the judgment debtor to delay payment of
Islamic banking or a takaful judgment sum, because whether he pays it now or ten
years later, he still pays the same amount.

…….. It means that judgment debtors will keep avoiding settling judgment debts to
Islamic banks. They would settle judgment debts to conventional financial institutions
first, or use the money for some other purpose first.

On 26.5.2005 and 24.8.2006, the Shariah Advisory Council of Bank Negara Malaysia
had made a ruling that it is permissible for the Islamic Banking Institutions to get an
order of compensation of up to 8% of the judgment sum. However, it may only take
for itself an amount equivalent to the actual loss which is calculated based on the
annual average for overnight weighted rate of the Islamic money market of the
preceding year. The rest should be given to charity.

This should be made a rule of court. After all, the Central Bank of Malaysia Act 2009
has now formally recognised the dual financial system that Malaysia has been
having over 40 years. It’s about time that other laws and procedures follow suit.”

I repeated the call on 30th July 2010 when speaking at the Malaysian Law
Conference.

Indeed, three days earlier, the Deputy Governor of Bank Negara Malaysia
announced the establishment of the Law Harmonisation Committee of Bank Negara
Malaysia (“LHC”) and I was made Chairman. That issue was the first issue that we
tackled. The aim was to make a provision in the rules of court that has the same
effect as Order 42, rule 12 RHC 1980 so that the judgment debtors of Islamic
institutions would feel a similar pressure to settle the Islamic bank judgment debt as
in conventional cases. However, that provision has to be Shariah-compliant. LHC’s
approach was that we would accept the ruling of the Shariah Advisory Council
(“SAC”) as the Shariah position on the issue, put up a draft and forward it to the
Rules Committee for it to be included in the rules of court.

The Secretariat of the LHC, assisted by officers in the Islamic Banking and Takaful
Department (JPIT), International Shariah Research Academy for Islamic Finance
(“ISRA”), the Islamic Capital Market Division of the Securities Commission,
Association of Islamic Banking Institutions Malaysia, the Attorney General’s
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Chambers and others got down to work. We decided that the proposed rule should
cover financial transactions in accordance with Shariah under both the jurisdiction of
Bank Negara Malaysia (Central Bank of Malaysia) (“BNM”) and Securities
Commission of Malaysia (“SC”). We checked the rulings of the SAC of BNM and the
SAC of SC and found that there were discrepancies in the rulings of the two SACs.
So, it was decided that a joint paper be presented to a joint meeting of the two SACs.
That was done and the joint meeting was held on 25th July 2011 and it made a
common ruling.v

For brevity, I shall reproduce, the final ruling as agreed by both the SACs.
Reproduced here is my own translation in English (the official ruling in Malay is
reproduced in the end-note)vi:

“Late Payment Charge for Judgment Debt

Rules of Court empower the court to award interest on all judgment debts.
Considering that interest is prohibited by Shariah, SAC was referred to ascertain the
mechanism of late payment charge which is consistent with Shariah which could be
applied in Islamic banking cases.

Resolution

SAC, at the 13th Special Meeting on 25 July 2011 and the 115 th Meeting on 25th
August 2011 had decided that late payment charge on judgment debt could be
implemented as follows:
 Late payment charge on judgment debt may be awarded by the court from the
date of judgment until the date the judgment is fully satisfied as provided by
the rules of court. SAC decides that the rate shall be determined by applying
the principles of ta’widh and gharamah.
 Ta’widh refers to compensation on actual loss. Taking into consideration the
difficulty in determining the amount of actual loss and in view of the
importance of uniformity in the industry, SAC decides that the rate of actual
loss should be determined by a third party. In the context of Islamic banking
SAC mandated Bank Negara Malaysia as the authority to determine the rate
of actual loss. Further, SAC takes the stand that the rate that could be used to
determine the actual loss is the daily overnight Islamic interbank rate available
in the Islamic Interbank Money Market (bnm.iimm.gov.my) website on the
date of the judgment and calculated monthly based on daily rest basis.
 Gharamah refers to the penalty imposed as a deterrent measure for the delay
in payment by the debtor. In this context, gharamah refers to the difference
between late payment charge and ta’widh, that is the difference if the ta’widh
is less than the late payment charge. Late payment charge is determined by
rules of court.
 Late payment charge on judgment debt shall not be compounded.
 The judgment creditor is only entitled to receive the amount of ta’widh. If the
amount of ta’widh is equal to or more than the amount of late payment
charge, the whole amount of the late payment charge may be taken by the
Judgment Creditor. On the other hand, if the amount of the late payment
charge exceeds the amount of the ta’widh, the excess will have to be
channeled to charitable institutions.
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 The total amount of late payment charge shall not exceed the outstanding
principal amount.
 The calculation of late payment charge on judgment debt shall be based on
the basic judgment sum. The outstanding principal amount of the judgment is
the balance due subject to ibra’, if applicable, and does not include pre-
judgment late payment charge and related costs.
 Regarding the administration of gharamah, SAC takes the stand to give the
mandate to the Shariah Committee/Advisor (of the respective IFI – my
addition) to determine the suitable charitable institutions to receive the
gharamah, including baitul mal. The channeling of the gharamah shall be
undertaken by the judgment creditors. Judgment creditors must ensure that
the channeling of the gharamah to charitable institutions does not result in any
form of benefit to the said judgment creditor;
 Besides, institutions under the supervision of BNM are required to submit a
report on the channeling of gharamah that had been made by the institutions
from time to time.”

At its 115th meeting on 25 August 2011, the SAC had also decided that there was
no restriction in Shariah for arbitrators to impose late payment charge as provided in
arbitration procedures or as applicable to court, subject to the provisions of the
relevant law.

After many drafts and meetings and going back to the SACs for rulings, a final draft
was agreed. However, as the Judiciary was in the process of introducing a
completely new Rules of Court, we had to wait for it to be approved and gazetted.
And, on 26th June 2012 the Rules Committee approved it and the new Order 42 rule
12A appears in the new Rules of Court 2012 (P.U.(A) 205/2012.

The new Order 42 rule 12 reads as follows:

“Interest on judgment debts (O. 42, r. 12)

12. Subject to rule 12A, except when it has been otherwise agreed between the
parties, every judgment debt shall carry interest at such rate as the Chief Justice
may from time to time determine or at such other rate not exceeding the rate
aforesaid as the Court determines, such interest to be calculated from the date of
judgment until the judgment is satisfied.

The new rule 12A reads as follows:

“Late payment charge on judgment debts arising from financial transactions in

accordance with Shariah (O. 42, r. 12A)

12A.(1) Every judgment debt arising from financial transactions in accordance with
Shariah shall carry a late payment charge calculated from the date of judgment until
the judgment debt is fully satisfied at the rate provided under Order 42, rule 12 and
subject to the following conditions:

(a) the Judgment creditor shall only be entitled to ta’widh as a result of late
payment;
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(b) the amount of late payment charge shall not exceed the outstanding principal
amount; and
(c) if the amount of ta’widh is less than the amount of late payment charge, the
balance shall be channelled to any charitable organizations as determined by
the Shariah Advisory Council.

(2) For the purpose of this rule –

(a) “Shariah Advisory Council” means the Shariah Advisory Council established
under the Central Bank of Malaysia Act 2009 [Act 701] and the Capital
Markets and Services Act 2007 [Act 671]; and

(b) “ta’widh” means compensation for actual loss and shall be calculated at the
rate determined by the Shariah Advisory Council.”

Now, let me try to explain why the rule is drafted that way, what it is intended to
achieve and, hopefully, how it would work.

Rule 12 is the original rule with a slight amendment added. The rule:
1. Declares that every judgment debt carries interest at such a rate as may be
determined by the Chief Justice (in the RHC 1980, it was fixed at 8%, later
4%);
2. However that is subject to agreement by parties to the contrary. In other
words, parties may agree beforehand (e.g. in the loan agreement) to a
particular rate which is usually higher than the rate prescribed by the Chief
Justice;
3. The interest runs from the date of judgment to the date of full satisfaction i.e.
full settlement;
4. The Court may make an order not exceeding the rate determined by the Chief
Justice or as agreed by the parties;
5. The words “Subject to rule 12A” are added to facilitate the introduction of rule
12A.

It is important to note that the words “Subject to rule 12A” are added to provide that
in the specific case mentioned in rule 12A i.e. judgment debts arising from financial
transactions in accordance with Shariah, it is rule 12A that applies. Rule 12 is only
relevant to refer to the rate determined by the Chief Justice. In other words, the
same rate determined by the Chief Justice is applicable to judgment debts arising
from “conventional” judgment debts as well as judgment debts arising from financial
transaction in accordance with Shariah. The reason behind it to avoid disparity
mentioned above so that there is also pressure on judgment debtors to settle their
judgment debts to Islamic financial Institutions (IFIs). However, there is one very
important matter that must be remembered: the words “…except when it has been
otherwise agreed between the parties” do NOT apply to cases arising from financial
transactions in accordance with Shariah. Shariah does not permit parties to agree
beforehand the rate of interest or late payment charge, whatever it is called, as that
is riba. So, the only rate of late payment charge that the court may order in cases
arising from financial transactions in accordance with Shariah is the rate determined
by the Chief Justice. One may say that there is still room for disparity. It does not
matter. That may be the difference between the conventional and Shariah positions.
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There could even be “hikmah” in the Shariah position, which is arguably more
customer-friendly besides the provision that the late payment charge should not
exceed the capital amount and the fact that the amount in excess of ta’widh (i.e.
gharamah) is to be channelled to charity.

We now come to rule 12A itself. Under rule 12A, a judgment debt arising from a
financial transaction in accordance with Shariah carries a late payment charge from
the date of the judgment until the date of full satisfaction, at a rate determined by the
Chief Justice referred to in rule 12, not more and not less. The rule does not talk
about “not exceeding the rate aforesaid” as in rule 12. As emphasised earlier, it also
does not permit parties to agree between themselves beforehand as that would be
riba.

Having said that, the rule goes on to provide the conditions applicable. These
conditions are Shariah requirements which make a difference between Shariah and
conventional positions. The conditions are:
1. Even though the judgment debt carries a late payment charge at the rate
prescribed by the Chief Justice, (say, 4%) the judgment creditor is not
necessarily entitled to the full amount as in the case of conventional judgment
debt under rule 12. The judgment creditor is only entitled to the amount equal
to the ta’widh which may, usually, be less than the rate prescribed by the
Chief Justice.
2. In any event, the amount of late payment charge, should not be more than the
outstanding principal amount.
3. If the amount of ta’widh is less than the amount of the late payment charge,
the balance will be channelled to charitable institutions as may be determined
by the SAC.

Rule 12A(2)(b) explains what ta’widh is. Ta’widh means compensation for actual loss
and shall be calculated at the rate determined by the SAC. In other words, the
Shariah principle is that a judgment creditor is entitled to “actual loss” as late
payment charge. However, as “actual loss” is difficult to determine and as it is
important that there should be uniformity in the industry, the SAC decided that the
rate of actual loss should and could be determined by a third party, which, in the
context of Islamic banking is Bank Negara Malaysia. The SAC also decided that the
rate that could be used to determine the rate of actual loss is the “daily overnight
Islamic interbank rate” on the date of the judgment calculated monthly on daily rest
basis which is available in the Islamic Interbank Money Market (bnm.iimm.gov.my),
website. So, instead of trying to calculate the actual loss in every case, the lawyer or
bank officer need only to refer to the website to find out the rate on the day of the
judgment to determine the amount of actual loss.

The Shariah justification for late payment charge at the rate as may be determined
by the Chief Justice is arrived at by applying the Shariah principles of ta’widh and
gharamah. Ta’widh is the “actual loss” suffered by the judgment creditor as a result
of the delay in settlement of the judgment debt. It is assumed that the amount would
normally be less than the rate determined by the Chief Justice, even at 4%. As a
result, based on the principle of ta’widh alone, it would not be justifiable for the late
payment charge to be at 4%. So, the principle of gharamah was also brought in.
Gharamah is penalty for late payment resulting in financial loss to the judgment
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creditor. The idea here is to pressure or induce the judgment debtor not to purposely
delay the payment of Islamic banking judgment debt. That is a policy decision of the
Authority or Government to prevent the “evil” caused by the absence of such a
provision. So, the principle of gharamah is used to “top up” the rate of the late
payment charge so that it is equal to the rate determined by the Chief Justice,
applicable to conventional judgment debts. However, in Shariah the judgment
creditor is only entitled to ta’widh. What happens to the balance, where the ta’widh is
less than gharamah? Answer: to be channelled to charitable institutions determined
by the SAC.

To summarise the effects of the new rule:

1. Every judgment debt arising from an Islamic financial transaction carries a late
payment charge at a rate determined by the Chief Justice, say 4% per annum.
2. The “judgment debt” refers to the outstanding principal amountvii. The
outstanding principal amount is the balance due subject to ibra’, where
applicable, and does not include late payment charge prior to the date of
judgment and other costs. (This is explained in the Ruling of the SAC
reproduced above)
3. The late payment charge is arrived at by multiplying the outstanding principal
amount by the number of days of the delay from the date of judgment until the
date of full satisfaction at 4% per annum. That will give the amount of the late
payment charge, say RM10,000.00. This amount must not be more than the
outstanding principal amount, otherwise it would be limited to that amount.
4. Ta’widh is arrived at by multiplying the outstanding principal amount by the
“daily overnight Islamic interbank rate” on the date of judgment calculated
monthly on daily rest basis for the period of the delay. That will give the
amount of ta’widh, say RM6,000.00.
5. The difference between late payment charge and the ta’widh is the gharamah,
which is to be channelled to charitable institutions. (RM10,000.00 –
RM6,000.00 = RM4,000.00. In this example the RM4,000.00 is to be
channelled to charitable institutions.

Further details are to be found in the rulings of the SAC. The SAC delegates the
power to Shariah Committees/Shariah Advisors of the respective Islamic Financial
Institution (“IFI”) to determine suitable charitable institutions, including Baitul Mal, to
receive the gharamah. It stresses that it is the responsibility of the judgment creditor
to distribute the gharamah as provided by the rule and the ruling of the SAC. It is
also the responsibility of the judgment creditor to ensure that the distribution of
gharamah does not benefit the judgment creditor. Finally, every IFI under the
supervisory jurisdiction of Bank Negara Malaysia is required, from time to time, to
submit a report to Bank Negara Malaysia regarding its distribution of gharamah. In its
155th Meeting on 25th August 2011, SAC also decided that there is no Shariah
objection for the rule to be adopted by Arbitrators.

How will it work? I believe it should be something like this:

1. In the statement of claim arising from a financial transaction in accordance
with Shariah, the Plaintiff’s solicitor would include a prayer for “late payment
charge” instead of for “interest”.
2. The court, as usual would only record “O.I.T.” meaning “Order in terms” or
Order as prayed.
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3. Plaintiff’s Solicitor would draw up the draft Order of Court, which includes the
order for late payment charge.
4. The Registrar approves and issues the order.
5. Assuming that execution is carried out and the judgment debtor settles the full
judgment debt, including the late payment charge, then the judgment creditor
(IFI) will calculate the amount of ta’widh by referring to the website
(http://iimm.bnm.gov.my/). If the ta’widh is less than the late payment charge,
then the balance will have to be channelled to charity.
6. Even though power is given to the SAC to determine the charitable institutions
for the purpose, the SAC has delegated the power to the Shariah Committee
of each of the IFIs to determine them. The IFI, I believe, would place the
amount in an account and pay out to the charitable institutions periodically.
The rule is silent whether the amount should be paid periodically or as and
when it is available. It is also silent whether prior consent of the Shariah
Committee should be obtained regarding the amount to be paid and to which
particular charitable institution. I would suggest that for the sake of
transparency it would be better if the IFIs were to table their proposed
payments to the charitable institutions for approval by their respective Shariah
Committee before payment is made.

The rule is made on the basis that the judgment creditor is an IFI and that an IFI
would honestly comply with the rule regarding the portion to be paid out to charitable
institutions and not fraudulently embezzle it. A question may be asked: what if the IFI
embezzles it? The answer is simple: It would be a case of criminal breach of trust
and the law would take its own course. Besides, the IFI itself has its own system of
checking whether such a thing happens. I personally believe that we have to give the
IFIs a certain amount of trust. After all they are concerned that their business is
Shariah-compliant (that is why they choose Islamic banking instead of conventional
banking), then it follows that they would also ensure that just as they do not want to
“devour” riba, they would not want to “devour” the portion to be paid to charitable
institutions. It is no less haram than “devouring” riba. Another factor to be noted is
that IFIs are under the supervision of Bank Negara Malaysia.

What if the judgment creditor is an individual? Our hope is that if he is pious enough
to choose the Islamic financial transactions to avoid riba, he should also not want to
devour the property of charitable institutions. It is also hoped that solicitors will
explain the provision of the rule and the Shariah requirement to their clients. In any
event, I think there are not many such cases.

We have introduced something new, which no one had ever done, perhaps in the
history of the Shariah and common law. We cannot expect perfection. After all,
nobody had come up with an alternative, not to say a better one. Give it a few years.
During that period we will monitor how it works and make whatever improvement that
is necessary. Anyone who has an idea of how to improve it should contact the Law
Harmonisation Committee Secretariat of Bank Negara Malaysia or myself. Let us all
play a part in this amal jariah and in the development of Shariah, particularly
mu’amalat in this new millennium.

I hope that this innovation adds to the development of the rules of court as well as
the Shariah, particularly mu’amalat. Whichever way one looks at it, it is the first rule
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of its kind ever introduced in the long history of Shariah and common law. That is
harmonisation of laws. East and West have met? Rudyard Kipling and Samuel
Huntington may not be absolutely right after all.viii

NOTES
i
Even when we were drafting the rule, I had said that when the rule comes into force, “someone”
should write an article to explain it. However, when Miss Huma Sodhera, a Phd. Candidate from
Bangor University, Wales, UK and Visiting Fellow, ILSP, Harvard Law School (2012-2013) visited me
on the Aidil Fitri 1433 (19 August 2012) she convinced me that I should write it myself and I began
writing it the same evening. That was four days before my cervical surgery. I continued working on it
at Tanjung Roam, Ward 7 and finalised it later at Mawar Room, Ward 14, Kuala Lumpur Hospital. The
production of this rule (indeed the writing of this article) had involved experts from various disciplines
like common law lawyers, Shariah scholars, regulators, bankers and others. I am grateful to all of
them.
ii
For brevity, I will only be referring only RHC 1980.
iii
I happened to be the Secretary to the Sub-Committee that drafted the Rules of the High Court 1980,
The Subordinate Courts Rules 1980 and the Federal Court Rules 1980. I was then the Deputy
Registrar of High Court Malaya. The Sub-Committee consisted of the late Tan Sri Chang Min Tat,
then Supreme Court Judge, Mr. Lim Kean Chye, a lawyer from Penang and myself.
iv
At a seminar organized by the Association of Islamic Banking Institutions Malaysia on 8 May, a
bank officer complained that the courts were giving interest after judgment in cases arising from
Islamic banking as well. I replied to him: “Tell your lawyer not to pray for it. If he does, it would be
wrong for the court not to make an order for it as the rules applies to all judgment debts.”
v
That was the first of a joint meeting of the two SACs, hopefully a first step towards the establishment
of a single SAC.
vi
“Caj Lewat Bayar bagi Hutang Penghakiman
Kaedah-kaedah Mahkamah memberi kuasa kepada mahkamah untuk mengenakan faedah ke
atas semua hutang penghakiman. Memandangkan bahawa pengenaan faedah adalah dilarang
oleh Syarak, MPS dirujuk berhubung dengan kaedah caj lewat bayar yang selaras dengan hukum
Syarak yang boleh dilaksanakan bagi kes perbankan Islam

Keputusan

MPS dalam mesyuarat khas ke-13 bertarikh 25 Julai 2011 dan mesyuarat ke-115 bertarikh 25 Ogos
2011 telah memutuskan bahawa caj pembayaran lewat dalam hutang penghakiman boleh
dilaksanakan seperti berikut:
 Caj pembayaran lewat bagi hutang penghakiman boleh dikenakan oleh mahkamah dari
tarikh penghakiman dibuat sehingga hutang penghakiman tersebut diselesaikan pada kadar
yang diperuntukkan oleh kaedah-kaedah mahkamah. MPS memutuskan bahawa kadar tersebut
hendaklah ditentukan dengan menggunakan prinsip-prinsip ta`widh dan gharamah.

 Ta`widh merujuk kepada ganti rugi ke atas kerugian sebenar. Mengambil kira kesukaran dalam
menentukan jumlah kerugian sebenar dan keperluan kepada penyelarasan dalam industri, MPS
memutuskan bahawa kadar kerugian sebenar hendaklah ditetapkan oleh pihak ketiga. Dalam
konteks perbankan Islam, MPS memberikan mandat bagi menentukan kadar kerugian sebenar
tersebut kepada BNM selaku pihak berkuasa. MPS turut mengambil pendirian bahawa kadar yang
boleh diguna pakai bagi menentukan kerugian sebenar ialah kadar semalaman antara bank
 10

secara Islam (daily overnight Islamic interbank rate) seperti yang dipaparkan dalam laman
sesawang Islamic Interbank Money Market (bnm.iimm.gov.my), ditetapkan pada tarikh
penghakiman dibuat dan dikira secara bulanan berasaskan kaedah baki harian (daily rest basis).

 Gharamah merujuk kepada penalti yang dikenakan sebagai langkah pencegahan kepada
kelewatan pembayaran oleh penghutang. Dalam konteks ini, gharamah merujuk kepada
perbezaan antara caj pembayaran lewat dan ta`widh, iaitu lebihan sekiranya ta`widh kurang
daripada jumlah caj pembayaran lewat. Caj pembayaran lewat adalah ditentukan oleh kaedah-
kaedah mahkamah;

 Caj pembayaran lewat ke atas hutang penghakiman tidak boleh dikompaunkan;

 Pemiutang penghakiman hanya berhak menerima jumlah ta`widh sahaja. Sekiranya jumlah
ta`widh menyamai atau melebihi jumlah caj pembayaran lewat, keseluruhan jumlah caj
pembayaran lewat tersebut boleh diambil oleh pemiutang penghakiman. Sebaliknya, jika jumlah
caj pembayaran lewat melebihi jumlah ta`widh, lebihan tersebut perlu disalurkan kepada badan
kebajikan;

 Jumlah caj pembayaran lewat tidak boleh melebihi amaun baki pokok;

 Pengiraan caj pembayaran lewat bagi hutang penghakiman adalah dikenakan ke atas
jumlah asas penghakiman. Jumlah asas penghakiman adalah baki tertunggak tertakluk kepada
ibra’ sekiranya terpakai dan tidak merangkumi caj pembayaran lewat sebelum penghakiman dan
kos-kos lain;

 Berhubung isu pengurusan gharamah, MPS mengambil pendirian untuk memberikan mandat
kepada Jawatankuasa Syariah/Penasihat Syariah bagi menentukan badan-badan kebajikan yang
sesuai untuk menerima gharamah termasuk baitul mal. Penyaluran gharamah tersebut perlu
dilaksanakan oleh pemiutang penghakiman. Pemiutang penghakiman hendaklah memastikan
bahawa sebarang penyaluran gharamah kepada badan kebajikan tidak menghasilkan sebarang
bentuk manfaat kepada pemiutang penghakiman tersebut; dan

 Selain itu, institusi-institusi di bawah kawal selia BNM perlu menghantar laporan tentang
penyaluran gharamah yang telah dilaksanakan oleh institusi berkenaan dari semasa ke semasa.
vii
BNM’s Guidelines uses the term “basic judgment sum”. It refers to the same thing.
viii
As I am finalising this article, the LHC has come up with another draft to cover takaful cases. This
is because, the principle applicable to takaful is different from in Islamic banking cases.