Tuesday, June 03, 2008

Q&A: How to dispose of shares?

Question: I recently found out that owning shares in PLC companies is haram according to the Shariah, if I have already purchased shares in such companies based upon the fatawa of some mufti's who don' t understand the reality of these companies then how can I dispose of them? Is it allowed to sell them?

Answer:

This matter has been explained by Sheikh Taqiuddin an-Nabhani in the book'The Economic System of Islam' page 162-163, in the english translation. The following is the text:

"The above discussion raises questions about the Muslims who buy shares of these companies, associate in establishing them, or hold shares due to their subscription in such companies. Was their action haram, even though they were ignorant of the divine law (hukm shar'i) at the time of their subscription into these companies? Or if some scholars, who did not understand the reality of the share stock company, and gave them a fatwa (of permission) with regard to them, are these stocks and shares which are owned by them halal properties, even though they were earned by a void transaction in Shar'a? Or are they haram, and accordingly not legally owned by them? And are they allowed to sell these shares to (other) people or not? The answer to these questions is that ignorance of the divine law (hukm shar'i) is not an excuse, because it is compulsory upon every Muslim to learn about that which he needs in his life of the divine laws (Ahkam Shari'ah) so that he can carry out all his actions according to the divine law. If that law is one of those laws which are usually unknown for such persons, then he is not blamed for that action and it would be a valid action for him, even though it is invalid in Shar'a. This is because "The Messenger (SAW) heard Mu'awiya ibn Al-Hakam praying for someone who sneezed while he was in prayer. After they finished the prayer, the Messenger of Allah (SAW) taught him that speaking during the prayer would nullify it, and praying for the one who sneezes nullifies the prayer, but he (Messenger of Allah (SAW) did not order him to perform the prayer again." This is the meaning of what was narrated by Muslim and An-Nisai' from Ata'a ibn Yasar. This is because the rule (not talking during the prayer) is usually unknown to a person and so the Messenger of Allah (SAW) excused him and considered his prayer valid. The prohibition of the share stock companies in view of the Shar'a is one of the rules whose like is unknown to many Muslims and so their ignorance can be excused. The action of those who took partnership in them is considered valid, though the companies are invalid, like the prayer of Mu'awiya ibn al-Hakam which is considered valid though he did something in it that invalidates it, as he did not know that talking during prayer invalidates it. The fatwa given by the scholars also takes the rule of ignorance with respect to the one who seeks the opinion. However, the scholar who gives the opinion is not excused because he did not exhaust his effort to understand the reality of the share stock companies before he gave an opinion about them.

With regard to the ownership of the shares by the shareholders, it is a valid ownership and these shares are halal properties so long as Shar'a judged that their action was valid. It is not invalid as they are excused for being ignorant of its invalidity. Selling these shares to Muslims, however, is not allowed, because in Shar'a they are invalid currency notes and the allowance of their ownership is incidental, based upon ignorance (of the hukm) that was excused. When the divine law about it becomes known, then it becomes a haram property that is not allowed to be sold or bought, nor can one delegate other (Muslims) to sell it for him.

The way to dispose of these shares which were owned due to the ignorance of the divine law is to dissolve the company or transform it into an Islamic company. Alternately one can find a non-Muslim who considers the shares of the share stock company allowed and delegate him to sell the shares on his behalf and then receive the subsequent proceeds.

It was reported from Suwaid ibn Ghafalat "that Bilal said to 'Umar bin Al-Khattab: “Your administrators ('ummal) take wine and pigs as kharaj.” He said, “Don't take (these things) from them, but delegate them to sell them and take their price” narrated by Abu 'Ubayd in Al-Amwal. No one denied this action from 'Umar, though it would have been denied if it disagreed with Shar'a, so it became Ijma. Wine and pigs are of the properties of the dhimmis and cannot be properties for Muslims. When they wanted to give them to Muslims in exchange for jizya, 'Umar ordered Muslims not to accept it, but to delegate them to sell them and take the proceedings. Since shares are of the Capitalists properties are haram and cannot be of the properties of Muslims, when passed to Muslims hands, it is not valid for Muslims to take them. Instead they have to delegate to them their sale. Just like the right of Muslims in jizya and kharaj has been confirmed in wine and pigs, and 'Umar allowed them to let the dhimmis sell them on their behalf, it is also the right of Muslims in these shares that they are allowed to delegate the dhimmis to sell (the shares) for them."

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