Regulatory issues in Takaful

The differences between Takaful and conventional insurance clearly have regulatory

implications. For example:

1) A Takaful operator has an obligation to ensure that all aspects of the insurance

operations are compliant with Shari‟a rules and principles. To do so, it will draw on in-

house religious advisers, commonly known as a Shari‟a board.

2) The Takaful operator will be representing to policyholders, either explicitly or

implicitly, that its operations are in accordance with Shari‟a rules and principles.

Some regulators would consider they had a responsibility to ensure that such

representations are well-founded.

3) In a Family Takaful plan there are generally no guarantees (i.e. they operate on a

„defined contribution‟ rather than a „defined benefit‟ basis). This implies that the risk

profile is different from the standard insurance product, where guarantees are

normally given in terms of maturity benefits, surrender benefits and death benefits.

This has implications both for capital adequacy and for disclosure to consumers.

4) The solvency regime needs to reflect the location of risk. For example, if there is a

deficit in the underwriting fund, how strong is the obligation on the operator to give an

interest free benevolent loan, and what account should be taken of this in the

solvency regime. This raises the issue in practice of whether liability can be extended

to policyholders‟ investment accounts.

5) Because policyholders share in any surpluses and, in principle, meet any deficits in

the underwriting pool, there is a need to determine how their shares should be

determined. At present different companies follow different policies in this respect.

6) Because investments must be Shari‟a compliant, a Takaful firm cannot invest in

conventional interest-paying bonds, or in certain types of equity (brewers being an

obvious example). There are also limitations on the use of derivatives, for example to
 hedge currency risk. The asset risk profile will therefore be different from that of a

conventional insurer.

7) Takaful firms might be on the wrong end of “a number of shortcomings” in audit

procedure. While we determined that the audit firms inspected had put in place

systems and processes in line with global best practices, some specific areas for

improvements were identified. Other than instances where there was insufficient

documentation for the audit evidence obtained, there were instances where the

necessary audit procedures and evidence were clearly not performed or obtained.

8) The restriction in Shariah regarding commercial conventional insurance has led to

the establishment of a number of Takaful (Islamic insurance) company worldwide

providing insurance coverage for the general public. In the majority of cases the

companies are run as limited companies owned by shareholders. Some Takaful

companies are also listed on the stock exchange, where their shares are actively

traded, and thereby going public.

9) Generally, many Takaful companies (especially those using the Mudaraba principle)

claim that their operations are based on the concept of mutual or co-operative

insurance as approved by the Muslim jurists. This claim is on the basis that:

o They receive the premium or contribution from the insured on the basis of the

Mudaraba principle, whereby the company becomes the entrepreneur

(Mudarib) and the insured party the capital provider (Rab al-Mal).

o The insured party agrees to donate a certain percentage (or in some cases as

in General Takaful the whole of the amount paid) of the premium/contribution

to a special fund used to pay compensation or benefits to contributors.

o Any surplus left in the fund after settlement of all claims is shared by the

company and the insured as profit in a ratio as agreed in the contract. An

insured party who has received compensation, the amount of which is greater

than what he could have received as a share of the surplus had he made no

claim, is not entitled to share such a surplus.

 o The company uses normal actuarial principles to calculate risk and premium.

Since this Takaful company operation is claimed to be based on the

Mudaraba principle, the question arises as to whether such an operation can

be considered to be Shariah-compliant.

10) In this case, the parties to the contract are the company (which is owned in most

cases by the shareholders) on the one hand and the group of the insured parties on

the other hand. In other words, the company does not belong to either the insured

parties or the contributors. In fact, the company is a separate legal entity distinct from

the shareholders. Since the operation of the Takaful company is based on the

Mudaraba principle (as claimed), the insured parties are considered capital providers

(arbab al-amwal), and the company as an entrepreneur (Mudarib). Therefore, both

the insured parties (Arbab al-amwal) and the company (Mudarib) according to the

scheme are entitled to share the surplus (or profit) in line with the contract, based on

an agreed ratio or percentage.

11) Compensation or benefits to the insured parties are paid from the amount in the

Takaful fund, receiving the money from the premium or contribution paid by the

insured, which agree to pay the whole amount (or part thereof) as a donation

(Tabarru‟). This Takaful operation up to this point, is Shariah-compliant, but the

Mudaraba contract should be examined in greater detail. Under the Takaful

operation, the money in the Takaful compensation fund belongs legally to the

company and not to the insured-cum-investors (as in the case of A Family takaful

fund), and it is claimed (in line with the tabarru‟ principle) that by making the donation

(Tabarru‟), that is when the insured pay the premium or contribution, an individual

insured party is considered to waive his/her right to the money paid. However, if a

general view of Shariah is to be relied upon with regard to all the insured parties as a

group, the whole amount collected by the Takaful fund (particularly in the case of the

general takaful i.e. the compensation fund) must be considered either as trust money
 or as a trust fund for the benefit of all the contributors. It can in no way be treated as

funds belonging to the Takaful companies.

12) Furthermore it is not lawful in Mudaraba to stipulate that either or both parties to the

contract should be entitled to a certain amount of guaranteed proceeds or benefits in

kind or money other than a share of the profit in an agreed ratio or percentage. If, for

instance, the investor / Mudarib should stipulate that he is to be guaranteed an

amount of money or benefit other than the share of profit, the contract becomes void,

because of the possibility that the venture might not yield a profit. This would badly

affect the interest of the party who is not entitled to such favourable treatment due to

the existence of the said unfair terms.

13) In a Takaful operation, there is seemingly a favourable stipulation for the benefit of

the investors/insured parties that in the case of certain events, they are entitled to an

agreed amount of compensation/benefits, or alternatively they may be helped to

discharge the specified civil monetary liabilities as listed in the contract. Technically

and legally this term in itself will render the Mudaraba contract void on the grounds of

unfair terms in the contract. In practice, however, the Takaful company agrees to the

insertion of such „unfair terms‟ because the company‟s actuaries have already

calculated (as is usual in conventional insurance) that under normal circumstances

there will be a surplus in the Takaful fund.

14) Thus such seemingly unfair terms are arguably not unfair to the Takaful Company

which is fully aware of the truth behind the matter. But the matter is not fully known to

the insured parties as individuals who will still hope to receive the benefits stated in

the contract. The Takaful Company knows from the very beginning that only a small

proportion of the insured will in the end claim benefits. There seems to be a

manipulation, some would argue, by the Takaful Company against the insured

parties, both as individuals and as a group.

15) In the case of the group, the accumulated contributions, which in fact belong to the

group (or at least held in trust for their benefit), will be shared in the end by the
 company after all claims are paid. As for an individual insured, there is uncertainty as

to whether he will receive the stipulated Takaful benefits. In the end, what is shared

by the Takaful Company is nothing other than the proportion of the group‟s money

left in the Takaful account. It is therefore like paying the Mudaraba profit from the

capital provided by the investors, a practice which is not acceptable according to the

rules of the Mudaraba contract. On top of that according to mudaraba principles, in

case of loss, the remaining capital of the mudaraba should be returned back to the

mudaraba investors, and not to be shared with the mudarib since what is supposed

to be shared is profit if there is any. This because in such a contract, the profit needs

to be paid or shared out of the actual profit (ribh) of the business. In the case of

Takaful, what is shared is a part of the capital left (after deduction made for payment

of claims) provided by all the insured as a group of investors (Arbab al-amwal). After

paying all the necessary claims, what normally happens is that the Takaful fund‟s

account would register a loss not a profit i.e. total amount of premium / contribution

paid (capital of the Mudaraba) minus total claims paid. This means that there is no

Mudaraba profit to be shared bearing in mind that profit is defined in Sharia law as

any amount in excess of the original amount of capital in Mudaraba.

16) In accordance with Mudaraba principles and rules, there is thus no profit to be shared

as the business registers a loss. This clearly shows that the Takaful Company shares

what it is not entitled to share according to the principle of the Mudaraba contract. It

seems that there is no real difference between a conventional insurance operation

and its Mudaraba-based Takaful counterpart in this particular aspect. Above all, both

are owned by a certain group of people who are there to make a profit from the

business based on contingencies.

17) This fact alone makes the mudaraba-based Takaful Company and its operations

doubtful if the test adopted for mutual or co-operative insurance is to be faithfully

applied. According to Abu Jayb in his book “al-Ta‟min bayn al-hazar wa‟l ibahah”,
 mutual or co-operative insurance is principally valid under the Shariah according to

nearly all modern Islamic jurists.

18) One major ground for the validity of truly mutual or co-operative insurance is based

on the Shariah principle that says uncertainty (Gharar) can be tolerated in Tabarru‟at

contracts (contracts without consideration) whereby the parties concerned do not

basically seek to gain from the arrangement as they do in normal commercial

contracts (Mu‟awadat).

19) Since mutual or co-operative insurance / Takaful is entered into on the basis of a

voluntary donation (Tabarru‟), as opposed to a contractual price or premium as in

conventional insurance, the rule of certainty can be relaxed because in agreeing to

the Tabarru‟, the parties are not really concerned about who gets what and at the

expense of whom since the core idea is to help one another in times of need, a true

spirit of solidarity and mutuality, which is generally absent in commercial dealings

where the prime motive is to make profit. The situation is akin, for instance, to when

one makes a donation or contribution to the tsunami relief fund. One does not expect

any particular return from one‟s donation. The intention is to help the victims of the

tsunami.

20) Additionally, in mutual insurance or Takaful, all contributors are partners in the

relevant entity having equal rights and obligations. The prime objective of the

arrangement is to provide help and assistance to all participating members.

Management of the entity is normally put in the hands of some of the members acting

on behalf on the rest. Salaried staffs, if any, are paid by the entity to run the same for

the benefit of all the members. Members of mutual or co-operative insurance

companies are owners of the entities, while at the same time receivers of benefits of

the coverage. It is thus unlikely that the entity will act in ways prejudicial to the

interest of its members.

21) In commercial insurance/ Takaful, the situation is different. When the insurance or

Takaful companies sell their products to the insured parties (who do not own the
 company), the companies‟ main concerns are to safeguard the interest of the

shareholders (who are in the business to make profit), and not, as a general rule, that

of the premium prayers or contributors or at least there is a conflict of interest

situation.

22) Although the commercial Takaful operation as is practiced today seems to be the

only viable Islamic alternative to conventional insurance, it is not fully conforming to

the rule or concept of al-Ta'min al-Ta‟awuni, or mutual or co-operative insurance.

Modern commercial Takaful companies are more akin to normal business ventures

whose prime objectives are to make profit based on contingencies. It is undeniable

that they have provided the society with an alternative, which is closer to the spirit of

the Shariah, compared with those products available under conventional insurance.

23) However, there remain some dubious elements in the Mudaraba-based Takaful

operation which needs to be tackled to make it fully Shariah-compliant. The

emergence of new Takaful models in some parts of the world, based on the true

concept of Takaful Ta‟awuni or mutual Takaful is something that must be welcomed

by all of us. The establishment of such mutual or co-operative societies providing

insurance or Takaful coverage to their members must be supported, primarily to

remedy the shortcomings of current Takaful operations, many of which are run on the

Mudaraba model.

24) Another alternative would be to run the Takaful operation on a basis similar to the

method applied in the running of Islamic unit trust companies, whereby the managers

of the fund are paid professional fees for the services rendered. The advantage of

this method is that it will make it clear that all funds collected belong to the

contributors/investors/insured as a group, and are held in trust for their benefit.

These are only examples, but they should be sufficient to indicate that regulatory regimes

developed for conventional insurance cannot necessarily be applied uncritically to Takaful.

SOURCE:

Issue 1-6

1. http://www.iaisweb.org/__temp/issues_in_regulation_and_supervision_of_Takaful.pd

f, pp. 8

issue 7

2. http://www.theislamicglobe.com/index.php?option=com_content&view=article&id=2

00:auditing-concerns-for-takaful-firms&catid=7:article&Itemid=38

issue 8-24

3. http://islamiclawoffinance.blogspot.com/2010/03/shariah-issues-in-takaful.html