LAWS OF MALAYSIA

Act 312

Takaful Act 1984

Date of Royal Assent 24-Dec-1984

Date of publication in the
Gazette 31-Dec-1984

An Act to provide for the regulation of takaful business in
Malaysia and for other purposes relating to or connected
with takaful.

[1st January 1985]

ARRANGEMENT OF SECTIONS

PART I

PRELIMINARY

1. Short title.

2. Interpretation.

3. Classification of takaful business, and construction of
references to matters connected with takaful.

PART II

CONDUCT OF TAKAFUL BUSINESS
General restriction on takaful operators

4. Requirements for carrying on business as takaful operator.

5. Holding out as a registered takaful operator.

6. Use of word “takaful”.

7. Examination of persons suspected of carrying on takaful

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business.

8. Registration of takaful operators by Director General.

9. Annual registration fees.

10. Conditions of registration.

11. Cancellation of registration.

12. Effects of cancellation of registration.

13. Deposits.

14. Bank covenants in lieu of deposits.

15. Register of takaful certificates.

16. Establishment and maintenance of takaful funds, and
allocation of surplus.

17. Requirements as to assets of takaful funds.

18. Restrictions on payment of dividends and grant of advance,
loan, credit facility, and financing facility.

19. Disclosure of interests by directors.

20. Requirements as to documents evidencing title to assets of
takaful funds.

21. Establishment and maintenance of takaful guarantee scheme
funds and payments of moneys out of the funds.

22. Enforcement of requirements as to registers of certificates
and takaful funds and payment of levies by operators.

23. Re-takaful.

24. Payment in Malaysian currency of solidarity moneys under
family solidarity certificates.

25. Assumption of risks by operator.

26. Mis-statement of age and non-avoidance of participation.

27. Control of forms of proposal, certificates and brochures.

28. Misleading statement, promise or forecast inducing person to
enter into contract of takaful.

29. Requirements as to prospectuses and statements of capital.

30. Opening of branch office.

31. Disqualification of managing director, director, chief
executive, principal officer or controller of an operator.

32. Duty to notify change of managing director, director, chief
executive or principal officer.

33. Power to inspect, to require information, etc.

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34. Change in control of operator.

35. Takaful agents and brokers.

36. Intermediaries in takaful transactions.

37. Licensing of brokers.

38. Adjusters.

39. Examination of person suspected of acting, holding out as
broker or adjuster.

40. Saving for validity of certificates.

PART IIA

INTERNATIONAL TAKAFUL BUSINESS

40A. Requirements for carrying on business as international
takaful operator.

40B. Registration of international takaful operators by Director
General.

40C. Minimum capital funds or net working funds.

40D. Power of the Minister to modify certain provisions to be
made applicable to an international takaful operator.

PART III

RETURNS, INVESTIGATIONS, WINDING UP AND
TRANSFERS OF BUSINESS

41. Annual accounts and audit.

42. Actuarial investigations and reports as to family solidarity
business.

43. Power to require returns under sections 41 and 42 to be
rectified.

44. Additional provisions as to returns under sections 41 and 42.

45. Returns of changes in registration particulars.

46. Investigation of affairs of takaful operator.

47. Powers of Director General to issue directions.

48. General provisions as to winding up.

49. Special provision for takaful operators directed to cease
takaful business.

50. Co-operative societies doing takaful business.

51. Schemes for transfer of business.

52. Confirmation of schemes.

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53. Documents to be filed when scheme confirmed.

PART IV

MISCELLANEOUS AND GENERAL

53A. Advice of Syariah Advisory Council.

54. Central Bank to be responsible for administration, etc. of this
Act, and Governor of Central Bank to be Director General of
Takaful.

55. Indemnity.

55A. Officers deemed to be public servants.

56. Annual reports.

57. Statistics.

58. Service of notices.

59. Secrecy and penalty.

59A. Exemption.

60. General provisions as to offences.

61. Compounding of offences.

62. Prosecution.

63. Jurisdiction of court.

64. Capacity of infant to participate.

65. Payment of family solidarity claim without probate, etc.

66. Knowledge of and statement by authoized agent to be
deemed knowledge and statement by operator.

67. Application of other laws.

68. Regulations.

69. Power to issue guidelines, etc.

First Schedule Malaysian assets authorized for deposits and takaful funds.

Second Schedule Returns by takaful operator.

PART I

PRELIMINARY

Short title. 1.   This Act may be cited as the Takaful Act 1984.

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Interpretation. 2.   In this Act, unless the context otherwise requires—

   “Accountant General” means the Accountant General,
Malaysia;

   “accounting period”, in relation to any takaful operator,
means the period for which the operator makes up the
accounts of the takaful business carried on by him in
Malaysia;

   “adjuster” means any person who for compensation, fee,
commission or salary investigates and negotiates settlement
of claims arising under takaful contracts, solely on behalf of
either the takaful operator or the participant;

   “broker” means any individual, firm or company who for
compensation as an independent contractor, in any manner
solicits, negotiates or procures takaful contracts or the
renewal or continuance thereof on behalf of the participant
other than himself;

Ord. 61/58.    “Central Bank” means the Central Bank of Malaysia
established by the Central Bank of Malaysia Ordinance
1958;

Act A699.

   “contribution” means takaful instalment payable by
participants;

Act 287.
Sabah 3/58.

Sarawak Cap. 66.

   “Co-operative Societies Act” means the Co-operative
Societies Act 1948, or the Co-operative Societies Ordinance
1958 of Sabah, or the Co-operative Societies Ordinance of
Sarawak, as the case may require;

   “Director General” means the Director General of Takaful
appointed under section 54;

   “family solidarity” means takaful for the benefit of the
individual and his family;

   “foreign company” has the meaning assigned to it by the
Companies Act 1965;

Act A1306.

   “foreign institution” means a foreign company which
carries on business outside Malaysia which is similar to the
takaful business as provided under this Act or a foreign
company which carries on any other financial business as
may be specified by the Director General;

Act A1306.

   “international takaful business” means takaful business in
currencies other than ringgit;

Act A1306.

   “operator” means a company or a society which carries on
takaful business registered under section 8 and includes an
international takaful operator registered under section 40B;

Act A1306.

   “participant” includes, where a certificate has been
assigned, the assignee for the time being and, where they are

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entitled as against the takaful operator to the benefit of the
certificate, the personal representatives of a deceased
participant;

   “principal officer” means a person, by whatever
designation called, appointed by a takaful operator and
charged with the responsibility of managing the affairs of the
operator;

   “qualified actuary” means a Fellow of the Institute of
Actuaries in England, or a Fellow of the Faculty of Actuaries
in Scotland, or a Fellow of the Society of Actuaries in
America, or such other person as may be prescribed by the
Minister;

   “regulations” means regulations made by the Minister
under this Act;

   “re-takaful” means an arrangement consistent with sound
takaful principles for re-takaful of liabilities in respect of
risks incurred or to be incurred by the takaful operator in the
course of his carrying on takaful business;

   “re-takaful’s deposit” means an amount deposited with or
retained by a takaful operator by way of security for the
performance by the re-takaful operator of contracts
undertaking liabilities incurred by the takaful operator;

   “statutory balance-sheet” and “statutory valuation” means
respectively a balance-sheet lodged with the Director
General in order to comply with subsection (1) of section 41,
and a valuation of which the results are shown in a valuation
balance-sheet lodged with him on an a actuarial investigation
made in order to comply with subsection (1) of section 42
and—

(a) any reference to the last statutory balance-sheet or to
the last statutory valuation shall be construed as
reference to that last prepared or made and not
superseded by the arrival of the data as at which
another is to be prepared or made; and

(b) any reference to there being shown in a statutory
balance-sheet or on a statutory valuation a surplus of
assets over liabilities of a takaful fund shall be
construed accordingly by reference to the prescribed
form of balance-sheet or valuation balance-sheet and
to the rules to be followed under this Act in preparing
it;

   “the Register” means the register of takaful certificates
established by a takaful operator under section 15;

   “takaful” means a scheme based on brotherhood, solidarity
and mutual assistance which provides for mutual financial

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aid and assistance to the participants in case of need whereby
the participants mutually agree to contribute for that purpose;

   “takaful benefits” includes any benefit, pecuniary or not
which is secured by a takaful certificate, and “pay” and other
expressions, where used in relation to takaful benefits, shall
be construed accordingly;

   “takaful business” means business of takaful whose aims
and operations do not involve any element which is not
approved by the Syariah;

   “takaful certificate” includes any contract of takaful for
family solidarity business or general business whether or not
embodied in or evidenced by an instrument in the form of a
certificate, and references to issuing a certificate shall be
construed accordingly. References to a certificate of a takaful
operator include any certificate in respect of which the
operator is under any liability, whether the certificates were
issued by the operator or the liability was transferred to the
operator from another;

   “takaful operator”, “international takaful operator”,
“takaful agent” and “takaful broker” means a person who
carries on takaful business as takaful operator, international
takaful operator, takaful agent and takaful broker
respectively.

Act A1306.

Classification of

takaful business, and
construction of

references to matters
connected with

takaful.

3.   (1)   For the purposes of this Act—

(a) takaful business shall be divided into two classes—

(i) family solidarity business which, in addition to all
takaful business concerned with solidarity
certificates shall include, in the case of any takaful
operator, any type of takaful business carried on as
incidental only to the operator’s other solidarity
business; and

(ii) general business, that is to say, all takaful business
which is not family solidarity business,

and the re-takaful of liabilities, under takaful
certificates shall be treated as takaful business of the
class and type to which the certificates would have
belonged if they have been issued by the re-takaful
operator;

(b) references to carrying on takaful business include the

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carrying it on through an agent, or as agent;

(c) the operation, otherwise than for profit, of a scheme or
arrangement relating to service in particular offices or
employments, and having for its objects or one of its
objects to make provision in respect of persons serving
therein against future retirement or partial retirement,
or against future termination of service through death
or disability, or against similar matters, shall not be
treated as carrying on the business of takaful; and

13/66. (d) no society registered under the Societies Act 1966
shall be deemed to be a takaful operator, and no agent
for such a society shall as such be deemed to be a
takaful agent; nor shall references in this Act to a
certificate or contract of takaful apply to any
certificate or contract whereby a takaful is effected
with such a society.

PART II

CONDUCT OF TAKAFUL BUSINESS

General restriction on takaful operators

Requirements for

carrying on business as
takaful operator.

4.   (1)   Subject to this Act, takaful business shall not be
carried on in Malaysia by any person as takaful operator
except—

Act 125. (a) by a company as defined in the Companies Act 1965;
or

Act 502. (b) by a society registered under the Co-operative
Societies Act.

  (2)   No such company or society shall carry on family
solidarity business or general business or both in Malaysia as
takaful operator unless—

(a) it is registered under this Act in respect of that class of
business or both;

(b) in the case of a company as defined in the Companies
Act 1965 and a society mentioned in subsection (1)
(b), it maintains at all times a surplus of assets over
liabilities of not less than the amount as may be
prescribed from time to time;

(c) it has the deposit required by this Act in respect of it;
and

(d) it is a member of a takaful association approved by the Act A620.
Note.

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Minister, provided that this paragraph shall not apply
until such an association is established.

  (3)   For the purposes of subsection (2) (b), the surplus of
assets shall be in the form of cash or securities specified in
the First Schedule, or any combination thereof.

  (4)   For the purposes of this section, the value of takaful
assets and liabilities may be determined on a basis to be
prescribed from time to time.

  (5)   A person who contravenes this section shall be guilty
of an offence and shall, on conviction, be liable to a fine not
exceeding eighty thousand ringgit, increased by sixteen
thousand ringgit for each day on which he is proved to have
done so, or to imprisonment for a term not exceeding twelve
months or to both.

Holding out as a

registered takaful
operator.

5.   Where any person holds himself out to be a registered
takaful operator in respect of family solidarity business or
general business or both where he is not registered under this
Act in respect of that business, that person shall be guilty of
an offence and shall, on conviction, be liable to a fine of
twenty thousand ringgit or to imprisonment for a term of
twelve months or to both, and to a daily fine of not
exceeding four thousand ringgit.

Use of word “takaful”. 6.   (1)   No person other than an operator registered under

this Act shall, without the written consent of the Director
General, use the word “takaful” or any of its derivatives in
any language, or any other word indicating that such person
carries on takaful business in the name, description or title
under which it carries on business in Malaysia or make any
representation to such effect in any bill head, letter paper,
notice or advertisement or in any other manner:

   Provided that nothing in this section shall prohibit a takaful
association from using the word “takaful” or any of its
derivatives in any language as part of its name or description
of its activities.

  (2)   Any person who contravenes the provision of
subsection (1) shall be guilty of an offence and shall, on
conviction, be liable to a fine of four thousand ringgit or to
imprisonment for a term of six months or to both and to a
daily fine of not exceeding four hundred ringgit.

Examination of

persons suspected of
carrying on takaful

7.   (1)   Where the Director General has reason to suspect or
believe that a person is carrying on takaful business without

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business. having been registered under this Act, he may call for or
inspect the books, accounts and records of that person in
order to ascertain whether or not that person has contravened
or is contravening any provisions of this Act.

  (2)   Any person who wilfully refuses to submit the books,
accounts and records or to allow the inspection thereof shall
be guilty of an offence and shall, on conviction, be liable to a
fine of twenty thousand ringgit or to imprisonment for a term
of twelve months or to both and to a daily fine of not
exceeding four thousand ringgit.

Registration of takaful
operators by Director

General.

8.   (1)   The Director General shall be responsible for the
registration of takaful operators and, subject to this section,
shall on the application of any company or society qualified
under subsection (1) of section 4 register with or without
conditions and on payment of the prescribed fees, the
applicant in respect of family solidarity business or general
business or both.

  (2)   An application to be registered in respect of family
solidarity business or general business may be made by a
company or society already registered in respect of the other.

  (3)   The Director General shall not be required to consider
an application unless it is made in writing and he has been
furnished with such documents and information as may be
prescribed or as he may in the particular case require.

  (4)   The Director General shall refuse to register an
applicant if, after appropriate inquiry, he is satisfied that the
name of the applicant is by its resemblance to the name of
any other body likely to deceive.

  (5)   The Director General shall also refuse to register an
applicant unless he is satisfied—

(a) that the aims and operations of the takaful business
which it is desired to carry on will not involve any
element which is not approved by the Syariah; and

(b) that there is in the Articles of Association of the
takaful operator concerned provision for the
establishment of a Syariah advisory body, as may be
approved by the Director General, to advise an
operator on the operations of its takaful business in
order to ensure that it does not involve in any element
which is not approved by the Syariah.

Act A1212.

  (6)   Where the Director General is satisfied that an
applicant has complied with all the requirements of this
section he shall refer the application to the Minister; and if
the Minister so directs, the Director General shall not register

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the applicant who shall be notified of the direction.

  (7)   The Director General shall not register an applicant in
respect of takaful business of either class until the
Accountant General certifies to him that the applicant has
made in respect of that business the deposit required by this
Act.

  (8)   The Director General shall cause notice of any
registration of a takaful operator to be published in the
Gazette.

Act A1306.

Annual registration

fees.
9.   (1)   Every operator shall pay such annual registration
fees as the Minister may prescribe.

  (2)   The Minister may prescribe different registration fees
for different classes of takaful business.

Conditions of

registration.
10.   (1)   The Director General may from time to time and as
he thinks fit—

(a) impose conditions of registration on an operator; or

(b) add to, vary, or revoke any existing conditions of
registration of an operator,

who is already registered under this Act in order for it to
remain so registered.

  (2)   Any operator who fails to comply with any of the
conditions imposed by the Director General under subsection
(1) shall be guilty of an offence and shall, on conviction, be
liable to a fine of twenty thousand ringgit and to a daily fine
of four thousand ringgit.

Cancellation of

registration.
11.   (1)   The Director General may by order cancel the
registration of an operator either wholly or in respect of a
class of business, as the case may be, if he is satisfied that—

(a) the operator is pursuing aims or carrying on operations
involving any element which is not approved by the
Syariah;

(b) the operator has not commenced business within
twelve months after being registered;

(c) the operator has ceased to carry on takaful business in
respect of any class of business;

(d) the operator has failed to maintain a surplus of assets
over liabilities in accordance with paragraph 4(2)(b),
or, in the case of an international takaful operator, the

Act A1306.

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international takaful operator has failed to comply
with the requirements of section 40C, as the case may
be;

(e) the operator has neglected or refused to observe an
order of the Director General to make good any
deficiency, whenever its takaful fund shall have
become impaired;

(f) the operator proposes to make, or has made any
composition or arrangement with its creditors or has
gone into liquidation or has been wound up or
otherwise dissolved;

(g) the operator is carrying on its business in a manner
likely to be detrimental to the interests of its
participants;

(h) the operator is unable to meet its obligations;

(i) the operator has failed to effect satisfactory re-takaful
arrangements;

(j) the operator is contravening or has contravened the
provisions of this Act or any of the regulations or any
conditions imposed or any directions given by the
Director General under this Act;

(k) the operator has been convicted of any offence under
this Act or any of its officers holding a managerial or
an executive position has been convicted of any
offence under this Act;

(l) the operator has furnished false, misleading or
inaccurate information, or has concealed or failed to
disclose material facts in its application for
registration; or

(m) it is in the public interest to cancel the registration.

  (2)   The Director General shall before cancelling any
registration under subsection (1) cause to be given to the
operator concerned notice in writing of his intention to do so,
specifying a date, not less than fourteen days after the date of
the notice, upon which the cancellation will take effect and
calling upon the operator to show cause to the Director
General why the registration should not be cancelled.

  (3)   Notwithstanding the fact that the registration of an
operator has been cancelled under this section, so long as the
operator remains under any liability in respect of Malaysian
certificates belonging to the class of takaful business to
which the registration relates, the operator shall take such
action as it considers necessary or as may be required by the
Director General to satisfy him that reasonable provision has

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been or will be made for that liability and that adequate
arrangements exist or will exist for payment in Malaysia of
contributions and claims on those certificates.

  (4)   When the Director General has cancelled a registration
under subsection (1) he shall forthwith inform the operator of
the cancellation.

  (5)   Any operator whose registration has been cancelled
pursuant to this section may within sixty days of being
notified in writing of the cancellation appeal against the
order of cancellation to the Minister whose decision thereon
shall be final.

  (6)   An order of cancellation made by the Director General,
or where there is an appeal, the decision of the Minister
confirming the order of cancellation shall not take effect
until the expiration of a period of fourteen days after the
operator has been informed in writing of the order or
decision.

Effects of cancellation

of registration.
12.   (1)   Where an order of cancellation becomes effective
under section 11—

(a) notice of the cancellation shall be published in the
Gazette; and

(b) the operator shall, as from the date of cancellation,
cease to carry on in Malaysia takaful business of the
class in respect of which its registration has been
cancelled under this Act, otherwise than by the
collection or receipt of contributions on Malaysian
certificates belonging to that class effected before the
date of cancellation of registration and subsection (2)
of section 4 shall not apply to the operator in respect
of the collection or receipt of those contributions.

  (2)   The provisions of subsection (1) (a) shall not prejudice
the enforcement by any participant or person of any right or
claim against the operator or by the operator of any right or
claim against any participant or person.

Deposits. 13.   (1)   An operator, while registered in respect of any

class of takaful business, shall at all times have in respect of
that business a deposit with the Accountant General of a
value of not less than the amount as may be prescribed by
the Minister.

  (2)   Any such deposit shall be made in cash or securities
specified in the First Schedule or partly in one way and
partly in the other; and any cash comprised in a deposit may

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be invested in such manner not contrary to the Syariah as
may be approved by the Director General.

  (3)   All incomes accruing in respect of a deposit shall be
payable to the operator making the deposit.

  (4)   A deposit made under this section in respect of any
class of takaful business shall be retained by the Accountant
General until either the operator ceases to be registered in
respect of that class of takaful business or the deposit is
required in the winding up of the operator, and if the
operator ceases to be registered as aforesaid, the deposit or
part of it may be further retained for the purpose of and in
accordance with any such provision for liabilities in respect
of certificates as is required by subsection (3) of section 11.

  (5)   If at any time a deposit under this section (other than a
deposit retained after the operator has ceased to be registered
as aforesaid) comprises assets other than Government
securities, and the value of those assets is less than the sum
prescribed by virtue of subsection (1) reduced by the value
of any Government securities comprised in the deposit, then
the Director General may by notice in writing direct the
operator to add thereto within twenty-eight days of the
service of the notice, cash or securities specified in the First
Schedule of a value not less than the difference.

  (6)   An operator which has made a deposit under this
section may at any time substitute for any assets comprised
in the deposit cash or securities specified in the First
Schedule, so long as the value of the deposit is not thereby
reduced to an amount below that which is required by this
Act.

  (7)   In the foregoing subsections “securities” (except in the
expression “Government securities”) includes any form of
investment not contrary to the Syariah, and “Government
securities” means securities of which the principal or profit is
charged directly or by way of guarantee on the Consolidated
Fund of the Federation or of any State, but no deposit shall
include—

(a) any shares in, or other securities of an operator
registered under this Act;

(b) except so far as a debt comprised in the deposit is
secured on land, any estate or interest in land; or

(c) any securities authorized in paragraphs 2, 3, 4, 5 and 6
of the First Schedule which the Minister on the advice
of the Director General and the Accountant General
declares in writing to the operator to be unsuitable for
the purposes of a deposit.

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  (8)   Where by virtue of subsection (7) (c) any securities
comprised in a deposit are declared unsuitable, the operator
shall within one calendar month of the securities being so
declared, substitute therefor such other securities as are
authorized by this section.

Bank covenants in lieu

of deposits.
Act 276.

14.   (1)   If in the case of any operator, a bank licensed
under the Islamic Banking Act 1983, makes with the
Government an agreement in a form approved by the
Director General, whereby the bank covenants with the
Government to deposit with the Accountant General a
specified sum in cash on account of the operator’s deposit
under this Act in respect of either class of takaful business,
and the covenant complies with any requirements the
Director General sees fit to impose as to the circumstances in
which that sum is to be deposited, then for the purposes of
this Act the operator shall be treated as having deposited
under section 13 a sum of cash equal to that so covenanted
for and the sum so covenanted for shall be recoverable
notwithstanding that no consideration is furnished on the
agreement.

  (2)   Any sum deposited by a bank in pursuance of an
agreement made under subsection (1) shall be dealt with
under or for the purposes of this Act as if it were a sum
deposited by the operator under section 13.

  (3)   This section shall not authorize an agreement to be
substituted under subsection (6) of section 13 for assets
comprised in a deposit.

Register of takaful

certificates.
15.   (1)   Every operator registered under this Act shall
establish a register of takaful certificates in such form as may
be prescribed and shall, other than any prescribed
exceptions, keep the Register at its principal place of
business in Malaysia.

  (2)   Subject to this section, there shall be entered in the
Register all Malaysian certificates of the operator, and no
certificate entered in the Register shall be removed from it so
long as the operator is under any liability in respect of the
certificate.

  (3)   An operator shall, at the request of any person having
an interest in any certificate of the operator, inform him
whether or not the certificate is entered in the Register.

  (4)   If the operator ceases to be registered under this Act in
respect of either class of takaful business, the Register shall
cease to exist as a statutory register under this Act of

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certificates belonging to that class of business and any
reference in this Act to certificates registered under this Act
shall be construed accordingly.

  (5)   Subject to subsection (4), the Register shall,
notwithstanding that the operator at any time ceases to carry
on in Malaysia either class of takaful business, continue to be
maintained by the operator for certificates belonging to that
class so long as the operator is under any liability in respect
of such certificates registered or required to be registered at
that time.

Establishment and

maintenance of takaful
funds, and allocation

of surplus.

16.   (1)   Every operator registered under this Act shall
establish and maintain in accordance with this section a
takaful fund in respect of the class or each of the classes of
takaful business carried on by the operator in Malaysia so far
as that business relates to Malaysian certificates.

  (2)   There shall be paid into a takaful fund all receipts of
the operator properly attributable to the business to which the
fund relates (including the income of the fund), and the
assets comprised in the fund shall be applicable only to meet
such part of the operator’s liabilities and expenses as is
properly so attributable.

  (3)   In the case of a fund established in respect of family
solidarity business, no part of the fund shall be allocated by
way of takaful benefits to participants, except with the
approval of a qualified actuary and out of a surplus of assets
over liabilities as shown on the last statutory valuation of the
fund and on the making of any such allocation that surplus
shall be treated for purposes of this section as reduced by the
amount allocated.

  (4)   In a winding up assets comprised in the deposit made
by an operator under this Act in respect of either class of
business shall be treated as assets of the takaful fund
established by the operator in respect of business of that
class, and subsection (2) shall apply to those assets
accordingly.

  (5)   A takaful fund established by an operator for any class
of business shall, notwithstanding that the operator at any
time ceases to carry on that class of business in Malaysia
continue to be maintained by the operator so long as the
operator is required by this Act to maintain the Register for
certificates belonging to that class.

Requirements as to

assets of takaful fund.
17.   (1)   The assets of any takaful fund under this Act shall
be kept separate from all other assets of the operator, and

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shall not include assets comprised in a deposit under this
Act, nor any amounts on account of goodwill, the benefit of
development expenditure or similar items not realizable apart
from the business or part of the business of the operator.

  (2)   Subject to section 24 the assets of any takaful fund
shall be such that—

(a) the value of Malaysian assets as specified in the First
Schedule, with any such additions as are permitted by
subsection (4), is not less than eighty per cent of the
total value of the assets of the fund; and

(b) the value of investments in securities of the Federal or
State Government issued in Malaysia is not less than
fifteen per cent of the total value of the assets of the
fund at any time.

  (3)   For the purposes of subsection (2) there may be added
to the value of items specified in the First Schedule the
amount or value of any assets of the fund of the following
descriptions:

(a) outstanding contributions on family solidarity
certificates on which future liabilities may be met out
of the assets of the fund;

(b) sums representing claim recoveries from re-takaful
operators in or outside Malaysia.

  (4)   The Minister may, in respect of assets of any takaful
fund, require an operator—

(a) not to make investments of a specified class or
description;

(b) to realise, before the expiration of a specified period or
such extended period as the Minister may allow, the
whole or a specified proportion of investments of a
specified class or description held by the operator
when the requirement is made.

  (5)   For the purposes of this section the assets from time to
time representing any re-takaful operator’s deposit held by
the takaful operator to meet liabilities of a takaful fund shall
be treated with the agreement of the re-takaful operator as
assets of the fund.

Restrictions on

payment of dividends
and grant of advance,

loan, credit facility,
and financing facility.

18.   (1)   No operator shall—

(a) pay any dividend on its shares until all its capitalized

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expenditure (including preliminary expenses,
organization expenses, share selling commission,
brokerage, amounts of losses incurred, and any other
item of expenditure not represented by tangible assets)
has been completely written off;

(b) grant an advance, a loan, a credit facility, or a
financing facility against the security of its own
shares;

(c) except in such special circumstances and in such
amounts as the Director General may allow, grant an
advance, a loan, a credit facility, or a financing
facility—

(i) to any of its directors other than an advance, a loan,
a credit facility, or a financing facility secured by a
certificate in name of the directors;

(ii) to a firm in which it or any of its directors has any
interest as partner, manager, or agent, or to an
individual for whom or a firm for which any of its
directors is a guarantor;

(iii) to a company in which any of its directors owns
twenty per cent of the voting shares or more;

(iv) to a company in which the operator owns twenty
per cent of the voting shares or more;

(v) to a company which owns twenty per cent of the
voting shares of the operator or more; and

(vi) to a company in which a company mentioned in
subparagraph (v) owns twenty per cent of the
voting shares or more;

(d) except in such special circumstances and in such
amounts as the Director General may allow, grant to a
person other than its employee or to any person
mentioned in paragraph (c) an unsecured advance,
unsecured loan, unsecured credit facility, or unsecured
financing facility;

(e) except in such special circumstances as the Director
General may allow, act as guarantor on an advance, a
loan, a credit facility, or a financing facility granted to
any person mentioned in paragraph (c); and

(f) except with the approval of the Director General,
pledge, mortgage or charge any of its assets or
securities.

  (2)   All the directors of the operator shall be liable jointly
and severally to indemnify the operator against any loss
arising from the making of an unsecured advance, unsecured

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loan, unsecured credit facility, or unsecured financing
facility.

  (3)   For the purposes of subsection (1), “director” shall be
deemed to include the wife, husband, father, mother, son, or
daughter of a director.

  (4)   For the purposes of this section and section 19,
“unsecured advance”, “unsecured loan”, “unsecured credit
facility”, or “unsecured financing facility” means
respectively—

(a) an advance, a loan, a credit facility, or a financing
facility made without security; or

(b) in the case of an advance, a loan, a credit facility, or a
financing facility made with security, any portion of
the advance, loan, credit facility, or financing facility
which at any time exceeds—

(i) the market value of the assets constituting the
security; or

(ii) the value of the assets constituting the security
assessed on a basis approved by the Director
General where he is satisfied that there is no
established market value.

  (5)   Nothing shall preclude the operator from investing its
fund in any manner allowed by the Syariah.

Disclosure of interests

by directors.
19.   (1)   Every director of an operator who in any manner
whatsoever has an interest, whether directly or indirectly, in
an advance, a loan, a credit facility, or a financing facility
from that operator shall as soon as practicable make to the
operator a declaration in writing as to the nature and extent
of his interest and the operator shall within seven days of its
receipt furnish copies of that declaration to the Director
General, its auditor, and all its directors.

  (2)   For the purposes of subsection (1), a general notice
given to the board of directors of an operator by a director to
the effect that he has an interest in a specified enterprise,
undertaking, firm or company and that he is to be regarded
as having an interest in an advance, a loan, a credit facility,
or a financing facility which may, after the date of the notice,
be granted to that enterprise, undertaking, firm or company
shall be deemed to be sufficient declaration of interest in
relation to an advance, a loan, a credit facility, or a financing
facility so granted if—

(a) it specifies the nature and extent of his interest in that
enterprise, undertaking, firm or company; and

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(b) at the time an advance, a loan, a credit facility, or a
financing facility is made, his interest is not different
in nature or greater in extent than had been specified in
the notice.

  (3)   Every director of an operator who holds an office or
possesses any property whereby whether directly or
indirectly a duty or an interest may arise in conflict with his
duty or interest as such the director shall declare at a meeting
of the directors of the operator the fact, nature, and extent of
the conflict which may arise.

  (4)   The declaration referred to in subsection (3) shall be
made at the first meeting of the directors held—

(a) after the person becomes a director of the operator; or

(b) (if already a director) after the person commenced to
hold office or to possess the property whereby the
conflict may arise.

  (5)   The secretary to the board of directors of the operator
shall cause to be brought up and read any declaration made
or notice given under this section at the next meeting of the
directors after the declaration is made or the notice is given
and he shall record the same in the minutes of that meeting.

  (6)   Any director or secretary to a board of directors who
acts in contravention of this section shall be guilty of an
offence and shall, on conviction, be liable to a fine not
exceeding twenty thousand ringgit or to an imprisonment for
a term not exceeding three years or to both.

Requirements as to

documents evidencing
title to assets of takaful

funds.

20.   (1)   Where an operator has established a takaful fund
under this Act, the operator shall secure that any documents
evidencing the operator’s title to assets of the fund or assets
falling within subsection (5) of section 17, so long as the
documents are held by or on behalf of the operator, shall be
kept in Malaysia or, if not so kept, shall be kept in the
custody of a person approved by the Director General, and at
a place and on terms so approved:

   Provided that the Director General may, in the case of an
operator being investigated under this Act or where the
Director General is satisfied that the affairs of an operator
are being conducted in a manner likely to be detrimental to
the interest of participants, or potential participants, direct
that all such documents be handed over to be kept by him or
by a person approved by him and at a place and on terms so
approved.

  (2)   An operator who has established a takaful fund shall
from time to time notify the Director General in writing the

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person having custody of any such document on behalf of
the operator.

  (3)   Any document kept by the Director General or by a
person approved by him pursuant to the proviso to
subsection (1) shall not be released except with the consent
in writing of the Director General.

  (4)   Any such document which is for the time being held
by or on behalf of the operator shall, within such period as
may be specified in the notice given in writing by the
Director General to the operator or to the person having the
custody of the document, be produced for inspection to the
Director General or a person nominated by him by the
person to whom the notice is given.

  (5)   A person who fails to comply with this section shall be
guilty of an offence and shall, on conviction, be liable to a
fine not exceeding four thousand ringgit, and to a daily fine
not exceeding two hundred ringgit.

Establishment and

maintenance of takaful
guarantee scheme

funds and payment of
moneys out of the

funds.

21.   (1)   There shall be established and maintained by the
Director General in accordance with this section, takaful
guarantee scheme funds in respect of general business and
family solidarity business respectively carried out by the
operator in Malaysia so far as the business relates to
Malaysian certificates.

  (2)   There shall be paid into the takaful guarantee scheme
funds through the Director General all such levies as may be
imposed on and collected from operators in such instalments
as the Director General may allow.

  (3)   Subject to any direction by the Minister the total
amount of levy shall not exceed one per cent of the annual
actual contribution of an operator in any one year assessable
on the general business, and in the case of family solidarity
business on any new business, carried out by the operator in
the previous year.

   In the case of an operator who has failed to submit his
statutory returns under section 41 by the due date, the
Director General may, for the purpose of calculating the
amount of levy payable by that operator, assess an amount to
be deemed to be that operator’s actual contribution income
for the preceding year and the amount so collected shall be
adjusted against actual contribution income shown in the
statutory returns when submitted.

  (4)   Any sum including any other moneys or income
received or paid into the takaful guarantee scheme funds
including any profit or dividends derived from any

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investment of any sum out of such funds may be withdrawn
and utilized from time to time with the approval and subject
to the direction of the Director General to meet the
administrative, legal, and other costs of maintaining and
administering such funds and the liabilities of any insolvent
operator as may be prescribed.

   For the purpose of this subsection an operator shall be
deemed to be insolvent if—

(a) at the close of the last accounting period for which
statements have been lodged with the Director General
under section 41 the operator is insolvent;

(b) winding up proceeding has been commenced against
the operator;

(c) a receiving order has been made against him by the
Court; and

(d) the operator has been declared a bankrupt.

  (5)   The Minister may at his discretion direct the Director
General at any time after the establishment of the takaful
guarantee scheme funds the discontinuance of the collection
of any sum by way of levy if he is satisfied that there is more
than adequate money in either or both of the funds to meet
the liabilities of any insolvent operator in accordance with
subsection (4), but may if circumstances warrant, direct the
Director General to resume the collection from operators in
respect of either or both of the takaful guarantee scheme
funds:

   Provided that the Minister may from time to time at his
discretion direct that this section shall not apply to certain
types of takaful business within any class or may apply only
with such exceptions, restrictions or on terms or for any
period or in any manner as he may prescribe.

  (6)   The Director General may appoint any suitable person
to assist him in the administration and distribution of the
takaful guarantee scheme funds.

  (7)   The moneys in the takaful guarantee scheme funds in
so far as they are not for the time being required to be
expended for the purposes of this section may be invested in
such manner as the Minister may approve and not contrary to
the Syariah and all income accruing in respect of such
investments shall be credited to the funds.

Enforcement of

requirements as to
registers of certificates
and takaful funds and

22.   (1)   If an operator defaults in complying with the
provisions of sections 15 to 21, the Director General may by
notice in writing require the operator to make good the

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payment of levies by
operators.

default.

  (2)   If the operator does not make good the default within
one month after the notice is given, the High Court may on
the application of the Director General make such order
against the operator or any director or officer of the operator
as the High Court thinks fit with a view to making good the
default and otherwise securing compliance by the operator
with sections 15 to 21.

  (3)   Nothing done under this section shall affect any
person’s liability for any offence against this Act.

Re-takaful. 23.   (1)   An operator shall have arrangements consistent

with sound takaful principles for re-takaful of liabilities in
respect of risks undertaken or to be undertaken by the
operator in the course of his carrying on takaful business.

  (2)   The Director General may by giving notice in writing
require an operator to produce for his inspection, within a
period specified in the notice, treaties on re-takaful, such
other detailed information pertaining thereto and any such
other re-takaful arrangements as he may in the particular
case require.

  (3)   A person who fails to comply with subsection (2) shall
be guilty of an offence and shall, on conviction, be liable to a
fine not exceeding two thousand ringgit, and to a daily fine
not exceeding one hundred ringgit.

Payment in Malaysian
currency of solidarity
moneys under family
solidarity certificates.

24.   (1)   In the case of a family solidarity certificate issued
to a participant who is a citizen, any solidarity moneys or
moneys payable on the surrender of the certificate shall,
notwithstanding anything in the certificate or in any
agreement relating thereto, be paid in Malaysian currency,
unless at the time of payment it is otherwise agreed between
the operator and the person entitled to payment.

  (2)   Where an operator satisfies the Director General as
regards any family solidarity certificate registered under this
Act by the operator that the solidarity moneys (including any
moneys payable under the certificate on a surrender) may not
under the certificate or any agreement relating thereto be
paid in Malaysian currency, then for purposes of subsection
(2) of section 17 there shall be disregarded such part of the
value of the assets of the relevant takaful fund as is equal to
the value of the operator’s liability in respect of the
certificate determined on a basis approved by the Director
General.

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Assumption of risk by

operator.
25.   (1)   Subject to subsections (2) and (3), no operator shall
assume any risk in respect of any general business unless and
until—

(a) the contribution payable is received by the operator or
is guaranteed to be paid by such person in such
manner and within such time as may be prescribed; or

(b) deposit of such amount as may be prescribed is made
in advance in the manner prescribed.

  (2)   Where the contribution payable pursuant to subsection
(1) is received by any person, including a takaful agent or a
broker, on behalf of an operator, such receipt shall be
deemed to be receipt by the operator for the purposes of that
subsection and the onus of proving that the contribution
payable was received by a person, including a takaful agent
or a broker, who was not authorized to receive such
contribution shall lie on the operator.

  (3)   Subsections (1) and (2) shall apply to such description
of general business as may from time to time be prescribed.

  (4)   Where any person, including a takaful agent or a
broker, receives on behalf of an operator a contribution on a
takaful certificate of a description for the time being
prescribed pursuant to subsection (3), such person shall
deposit with, or despatch by post to, the operator the
contribution so collected within such period as may be
prescribed in relation to certificates of that description.

  (5)   Any refund of contribution, in relation to a certificate
of a description as may be prescribed under subsection (3)
which may become due to a participant on account of the
cancellation of a certificate or alteration in its terms and
conditions or for any other reason shall be paid by the
operator directly to the participant and a proper receipt shall
be obtained by the operator from the participant and such
refund shall under no circumstances be paid or credited to
any other person, including a takaful agent or a broker.

  (6)   Any person who fails to comply with this section shall
be guilty of an offence and shall, on conviction, be liable to a
fine not exceeding five thousand ringgit.

Mis-statement of age
and non-avoidance of

participation.

26.   A takaful certificate shall not be called in question by
reason only of a mis-statement of the age of the participant in
the case of the family solidarity business.

Control of forms of 27.   (1)   The Director General may by notice in writing

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proposal, certificates
and brochures.

require an operator to submit to him the forms of proposal
and certificates for the time being in use by the operator, and
any brochure which is for the time being in use there by the
operator for describing the terms or conditions of, or the
benefits to be or likely to be derived from, certificates; and
where the whole or part of any such forms or brochure is not
in the National Language or English there shall be submitted
with it a translation in the National Language or English.

  (2)   A requirement under this section, unless it is otherwise
provided therein, shall apply to all such forms and brochures
as aforesaid coming into use after the making of the
requirement and before the Director General notifies the
operator that the requirement is withdrawn.

  (3)   If it appears to the Director General, after affording the
operator an opportunity to make representations orally or in
writing that any such form or brochure as aforesaid
contravenes or fails to comply with any provision of this Act,
or is in any respect likely to mislead, he may by notice in
writing direct the operator to discontinue the use of the form
or brochure either forthwith or from a date specified in the
notice.

  (4)   For each occasion on which any operator uses a copy
of a form or brochure in contravention of subsection (3), the
operator shall be guilty of an offence and shall, on
conviction, be liable to a fine not exceeding four thousand
ringgit.

  (5)   In this section, “brochure” includes any leaflet, circular
or similar advertising matter, whether printed or not.

Misleading statement,

promise or forecast
inducing person to

enter into contract of
takaful.

28.   Any person who, by any statement, promises or
forecasts which he knows to be misleading, false, or
deceptive, or by any fraudulent concealment of a material
fact, or by the reckless making (fraudulently or otherwise) of
any statement, promise or forecast which is misleading, false
or deceptive, induces or attempts to induce another person to
enter into or offer to enter into any contract of takaful with
an operator shall be guilty of an offence and shall, on
conviction, be liable to a fine not exceeding twenty thousand
ringgit or to imprisonment for a term not exceeding one year
or to both.

Requirements as to

prospectuses and
statements of capital.

Act 125.

29.   (1)  (a)   In any case where, under section 39 or 42 of
the Companies Act 1965, it is unlawful to issue, circulate or
distribute a prospectus relating to a company without a copy
of it being first delivered for registration under that Act, it
shall also be unlawful, in the case of a company registered or

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intended to be registered as an operator under this Act, to do
so without the prospectus having been sanctioned by the
Director General; and any person knowingly responsible for
the issue, circulation or distribution of a prospectus in
contravention of this subsection shall be guilty of an offence
and shall, on conviction, be liable to a fine not exceeding
twenty thousand ringgit.

  (b)   In this subsection, “prospectus” includes any
documents to which the expression applies in the said section
39 or 42.

  (2)   Where a notice, advertisement or other official
publication of a company registered or intended to be
registered as an operator under this Act, contains a statement
of the company’s authorized share capital, and does not state
therewith how much of that capital has been subscribed and
how much is paid up, the company shall be guilty of an
offence and shall, on conviction, be liable to a fine not
exceeding four thousand ringgit.

Opening of branch

office.
30.   Except with the prior approval in writing of the Director
General, no operator shall open a branch office.

Disqualification of
managing director,

director, chief
executive, principal

officer or controller of
an operator.

31.   (1)   Without prejudice to anything contained in the
Companies Act 1965, any person who is a managing
director, director, chief executive, principal officer or
controller of an operator shall cease to hold office—

(a) if he becomes bankrupt;

(b) if he assigns his estate for the benefit of his creditors
or makes an arrangement with his creditors pursuant to
any law relating to bankruptcy; or

(c) if he is convicted of an offence involving dishonesty
or fraud.

  (2)   Any person who contravenes subsection (1) shall be
guilty of an offence and shall, on conviction, be liable to a
fine not exceeding two thousand ringgit.

Duty to notify change
of managing director,

director, chief
executive or principal

officer.

32.   An operator shall give notice in writing to the Director
General of the fact that any person has become or ceased to
be its managing director, director, chief executive, or
principal officer before the expiration of a period of fourteen
days from the day following that on which that fact or matter
comes to the operator’s knowledge.

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Power to inspect, to
require information,

etc.

33.   (1)   The Director General may from time to time
inspect under conditions of secrecy the books, accounts and
transactions of any operator and of any of its branch officers.

Act A699.

  (2)   For the purposes of an inspection under subsection (1),
the operator shall allow the Director General access to its
books, accounts and documents and shall give such
information and facilities as may be required to conduct the
inspection:

   Provided that the books, accounts and documents shall not
be required to be produced at such times and at such places
as shall interfere with the proper conduct of the normal daily
business of that operator.

  (3)   Where the Director General is of the opinion that it is
necessary for any of the purposes of this Act to do so, he
may by notice in writing require any director, officer or
representative of any operator to—

(a) furnish him with any information; or

(b) appear before him,

in connection with any matter related to any business carried
on by that operator in or outside Malaysia in the manner and
to the extent, and in the case of an appearance before him, at
the time and place, specified in the notice.

  (4)   Any person who refuses to allow an inspection under
subsection (1), or fails to comply with any provision of
subsection (2) or any requirement of the Director General
under subsection (3), shall be guilty of an offence and shall,
on conviction, be liable of a fine not exceeding twenty
thousand ringgit and shall also be liable to a further fine not
exceeding five thousand ringgit for every day during which
the offence is continued.

Change in control of

operator.
34.   (1)   There shall be no change in the control of an
operator incorporated in Malaysia or registered as a society
in Malaysia unless the Director General has given approval
in writing for such change.

  (2)   In this section, “control” means the possession,
directly or indirectly, of the power to direct or cause the
direction of the management and policy of the operator.

Takaful agents and

brokers.
35.   (1)   No person shall carry on takaful business in
Malaysia as takaful agent for an operator not entitled under
this Act to carry on the business in question in Malaysia; and

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a person contravening this subsection shall be guilty of an
offence and shall, on conviction, be liable to a fine not
exceeding twenty thousand ringgit increased by four
thousand ringgit for each day on which he is proved to have
done so, or to imprisonment for a term not exceeding twelve
months or to both.

  (2)   Subject to subsection (3), no takaful broker shall in the
course of his business as such negotiate any contract of
takaful with an operator other than an operator entitled under
this Act to carry on the business in question in Malaysia, and
no person in Malaysia shall solicit takaful business for an
operator not entitled to carry on that business in Malaysia;
and a person contravening this subsection shall be guilty of
an offence and shall, on conviction, be liable to a fine not
exceeding eight thousand ringgit or to imprisonment for a
term not exceeding six months or to both.

  (3)   The references in subsection (2) to a contract of takaful
and to takaful business shall not apply to re-takaful.

  (4)   Section 33 shall apply to takaful agents and to takaful
brokers.

Intermediaries in

takaful transactions.
36.   (1)   Any person who—

(a) invites another person to make an offer or proposal or
to take any other step with a view to entering into a
contract of takaful with an operator; and

(b) is connected with that operator as provided in the
regulations,

is required to give the prescribed information with respect to
his connection with the operator to the person to whom the
invitation is issued.

  (2)   Any person who fails to comply with this section shall
be guilty of an offence and shall, on conviction, be liable to a
fine not exceeding four thousand ringgit or to imprisonment
for a term not exceeding six months or to both.

Licensing of brokers. 37.   (1)   No person shall act or hold himself out as a takaful

broker unless he is the holder of a licence as a takaful broker
granted by the Director General and is a member of an
association of takaful brokers approved by the Minister.

  (2)   The Director General shall not be required to consider
an application for a licence under this section unless he has
been furnished with such documents and information as may
be prescribed or he may in the particular case require.

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  (3)   In granting a licence under this section the Director
General may impose such conditions as he thinks fit and may
at any time add to, vary or revoke such conditions.

  (4)   Every licence under this section shall be granted for a
period of twelve months and on the payment of the
prescribed fees.

  (5)   The Director General may revoke any licence granted
under this section if he is satisfied that any of the conditions
imposed on the licence has been breached or it is in the
interest of the public to do so.

  (6)   A person who contravenes subsection (1) shall be
guilty of an offence and shall, on conviction, be liable to a
fine not exceeding eight thousand ringgit, increased by two
thousand ringgit for each day on which he is proved to have
done so or to imprisonment for a term not exceeding six
months or to both.

Adjusters. 38.   (1)   No person shall act or hold himself out as an

adjuster unless he is the holder of a licence as an adjuster
granted by the Director General and is a member of an
association of adjusters approved by the Minister.

  (2)   The Director General shall not be required to consider
an application for a licence under this section unless he has
been furnished with such documents and information as may
be prescribed or he may in the particular case require.

  (3)   In granting a licence under this section the Director
General may impose such conditions as he thinks fit and may
at any time add to, vary or revoke such conditions.

  (4)   Every licence under this section shall be granted for a
period of twelve months and on the payment of the
prescribed fees.

  (5)   The Director General may revoke any licence granted
under this section if he is satisfied that any of the conditions
imposed on the licence has been breached or it is in the
interest of the public to do so.

  (6)   Nothing in this section shall apply to—

(a) an advocate and solicitor and members of other
professions who act or assist in adjusting takaful
claims as an incident to the practice of their
professions and who do not hold themselves out as
adjusters;

(b) an adjuster of maritime losses;

(c) an employee of an operator who, in the course of his

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employment, acts or assists in adjusting takaful claims
and who does not hold himself out as an adjuster.

  (7)   Every adjuster shall within one month after the end of
each quarter of the year submit to the Director General a
quarterly report in the prescribed form of all losses which are
the subject of adjustments effected by him.

  (8)   Sections 30 and 33 shall apply to adjusters.

  (9)   A person who contravenes subsection (1) shall be
guilty of an offence and shall, on conviction, be liable to a
fine not exceeding twenty thousand ringgit, increased by four
thousand ringgit for each day on which he is proved to have
done so, or to imprisonment for a term not exceeding twelve
months or to both.

  (10)   Where a person fails to submit a report as required by
subsection (7), he shall be guilty of an offence and shall, on
conviction, be liable to a fine not exceeding twenty thousand
ringgit and to a daily fine not exceeding two hundred ringgit.

Examination of person

suspected of acting,
holding out as broker

or adjuster.

39.   (1)   When the Director General has reason to suspect or
believe that a person is acting or holding himself out as a
takaful broker or an adjuster without a licence granted under
this Act, he may call for or inspect the books, accounts and
records of that person in order to ascertain whether or not
that person has contravened or is contravening any
provisions of this Act.

  (2)   Any person who wilfully refuses to submit the books,
accounts and records or to allow the inspection thereof shall
be guilty of an offence and shall, on conviction, be liable to a
fine of twenty thousand ringgit or to imprisonment for a term
of twelve months or to both and to a daily fine not exceeding
four thousand ringgit.

Saving for validity of

certificates.
40.   Nothing in this Part shall operate to invalidate any
takaful certificate.

PART IIA

INTERNATIONAL TAKAFUL BUSINESS

Requirements for

carrying on business as
international takaful

operator.

40A.   (1)   No person, other than a takaful operator
registered under section 8, shall carry on or transact or hold
himself out as carrying on or transacting international takaful
business unless that person is—

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(a) a company as defined in the Companies Act 1965; or

(b) a foreign institution,

and registered under this Part to carry on such business.

  (2)   Any person who contravenes subsection (1) commits
an offence and shall, on conviction, be liable to a fine not
exceeding eighty thousand ringgit, increased by sixteen
thousand ringgit for each day on which he is proved to have
done so, or to imprisonment for a term not exceeding twelve
months or to both.

Registration of

international takaful
operators by Director

General.

40B.   (1)   A company or a foreign institution making an
application for a registration under this Part shall make such
application in writing to the Director General and shall
supply—

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(a) a copy of the memorandum of association and articles
of association or other instrument under which the
company or the foreign institution, as the case may be,
is incorporated, duly verified by a statutory declaration
made by a senior officer of the company or of the
foreign institution, as the case may be; and

(b) such other document or information as may be called
upon by the Director General.

  (2)   An application to be registered in respect of family
solidarity business or general business may be made by an
international takaful operator already registered in respect of
the other.

  (3)   The Director General shall not be required to consider
an application under this Part unless he is satisfied that the
aims and operations of the international takaful business
which it is desired to carry on does not involve any element
which is not approved by the Religion of Islam.

  (4)   Where the Director General is satisfied that an
applicant has complied with all the requirements of this
section and of section 40C, the Director General shall refer
the application to the Minister and unless the Minister directs
otherwise, the Director General shall register the applicant in
respect of family solidarity business or general business or
both—

(a) subject to payment of the fees prescribed under section
9; and

(b) with or without conditions as he may impose under
section 10.

  (5)   The Director General shall cause notice of any

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registration of an international takaful operator to be
published in the Gazette.

Minimum capital

funds or net working
funds.

40C.   (1)   No person shall be registered under section 40B
nor shall such person registered thereunder carry on business
in Malaysia without the written consent of the Director
General if—

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(a) in the case of a company, its capital funds unimpaired
by losses or otherwise is less than the minimum
amount; or

(b) in the case of a foreign institution, its net working
funds unimpaired by losses or otherwise is less than
the minimum amount.

  (2)   For the purposes of this section—

   “capital funds” means paid-up capital and reserves and any
other sources of capital as may be defined and computed in
such manner as may be specified by notice in writing by the
Director General;

   “minimum amount” means such amount of capital funds or
such amount of net working funds to be maintained by an
international takaful operator as may be prescribed by the
Minister on the recommendation of the Director General by
notification in the Gazette; and

   “net working funds” means such net liabilities of the
foreign institution outside Malaysia as may be defined and
computed in such manner as may be specified by notice in
writing from time to time by the Director General.

  (3)   The prescription of the minimum amount to be
maintained under subsection (2) shall be complied with
within such uniform period of grace being not less than three
months as may be specified in the notification.

  (4)   Any person who contravenes this section commits an
offence and shall, on conviction, be liable to a fine not
exceeding eighty thousand ringgit, increased by sixteen
thousand ringgit for each day on which he is proved to have
done so, or to imprisonment for a term not exceeding twelve
months or to both.

Power of the Minister

to modify certain
provisions to be made

applicable to an
international takaful

operator.

40D.   (1)   For the avoidance of doubt, it is declared that a
takaful operator or an international takaful operator shall, in
respect of the international takaful business carried on by it,
be subject to the provisions of this Act and any provisions of
this Act which apply to a takaful operator shall apply to an
international takaful operator as if the references therein to a

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takaful operator were references to an international takaful
operator.

  (2)   The Minister may, on the recommendation of the
Director General, in respect of the international takaful
business carried on by a takaful operator or an international
takaful operator, by order published in the Gazette make
such modifications to any provisions of this Act as he may
deem fit.

PART III

RETURNS, INVESTIGATIONS, WINDING UP AND
TRANSFERS OF BUSINESS

Annual accounts and

audit.
41.   (1)   An operator registered under this Act shall prepare
the statements of account and other statements required by
Part I of the Second Schedule and lodge them with the
Director General (together with any prescribed fee) and Part
III of that Schedule, so far as relevant to those statements,
shall have effect with respect to their form and contents and
to the time and manner in which they are to be lodged.

  (2)   An operator registered under this Act shall have its
accounts audited for each accounting period for which
statements of account are prepared in accordance with
subsection (1), and when those statements are lodged with
the Director General there shall be lodged with them a
certificate of the auditor as required by Part I of the Second
Schedule.

  (3)   The audit required by subsection (2) shall be made by
a person who—

(a) has a place of business in Malaysia;

(b) is for the time being authorized under section 8 of the
Companies Act 1965, to be the operator’s auditor or an
auditor of companies generally; and

(c) has for the time being the approval of the Director
General to act for the purposes of this section.

  (4)   The documents to be lodged with the Director General
under this section for any accounting period of an operator
shall be accompanied by copies of any report submitted to
the members of the operator with respect to that period and
(if it is not among the documents so lodged) by any
statement of accounts so submitted with respect to that
period; but references in this Act to documents lodged with
the Director General shall not be taken to include documents

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required by this section to accompany documents so lodged.

  (5)   Where any report or statement referred to in subsection
(4) is in a language other than the National Language or
English, the copy required by that subsection shall be in the
National Language or English and shall be certified to be a
true translation of the original by the translator.

Actuarial

investigations and
reports as to family
solidarity business.

42.   (1)   Subject to this section, an operator registered under
this Act in respect of family solidarity business shall have an
investigation made by a qualified actuary into the financial
condition of that part of the takaful fund of its family
solidarity business specifically allocated for payment of
takaful benefits and a report thereon made to it by the
actuary, and shall be lodged with the Director General
(together with any prescribed fee) such abstract of the
actuary’s report and certificate relating thereto and such
statements as to that business as are required by Part II of the
Second Schedule and Part III of that Schedule, so far as
relevant to those documents, shall have effect with respect to
their form and contents and to the time and manner in which
they are to be lodged.

  (2)   Investigations under subsection (1) shall be made
annually at the end of each accounting period as the operator
may determine.

  (3)   References in this Act to documents lodged with the
Director General shall not be taken to include documents
required by this section to accompany documents so lodged.

  (4)   Where an operator registered under this Act in respect
of family solidarity business—

(a) has an actuarial investigation made into the family
solidarity business for which it maintains a takaful
fund under this Act (whether with or without any other
family solidarity business carried on by it); and

(b) the investigation is not made to comply with
subsection (1) or with any provision as to returns in
the law relating to takaful in a country outside
Malaysia, but the results of the investigation are made
public,

then the operator shall, as to the lodging of documents with
the Director General, comply with the requirements of
subsection (1) as in the case of an investigation under that
subsection.

Power to require

returns under sections
43.   (1)   If it appears to the Director General that any

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41 and 42 to be
rectified.

document lodged in accordance with sections 41 and 42 is in
any particular unsatisfactory, incomplete, inaccurate or
misleading or that it does not comply with the requirements
of this Act, the Director General may by notice in writing
require such explanations as he considers necessary to be
made by or on behalf of the operator within such time (not
less than fourteen days) as is specified in the notice.

  (2)   The Director General may, after considering the
explanations referred to in subsection (1), or if such
explanations have not been given by or on behalf of the
operator within the time specified in that subsection, reject
the document or give such directions as he thinks necessary
for its variation within such time (not less than one month) as
is specified in the directions.

  (3)   Directions given under subsection (2) with respect to
any document may require such consequential variations of
any other document lodged by the operator under sections 41
and 42 as may be specified in the directions.

  (4)   Where directions are given under subsection (2), any
document to which they relate shall be deemed not to have
been lodged until it is re-submitted with the variations
required by the directions, but the operator shall be deemed
to have submitted the document within the time limited by
the Second Schedule if it is re-submitted as aforesaid within
the time limited by the directions.

Additional provisions

as to returns under
sections 41 and 42.

44.   (1)   Any participant of an operator shall have a right,
on applying to the operator, to be sent by the operator at an
address supplied by him copies of documents lodged by the
operator to comply with section 41 or 42, and to have the
copies despatched not later than fourteen days after the
operator receives the application:

   Provided that the right shall not extend to any document
excepted from this subsection by Part I of the Second
Schedule, or to a document of any other description except
the last lodged of that description.

  (2)   Any person shall have the right, on payment of the
prescribed fee, at any time during working hours of the
office of the Director General, to inspect at that office any
document lodged by an operator to comply with section 41
or 42 and any document required by subsection (4) of section
41 to accompany the documents so lodged, and make a copy
of the whole or any part of it:

   Provided that the right shall not extend to any document
excepted from this subsection by Part I of the Second
Schedule, or to documents of any other description lodged

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more than ten years previously.

  (3)   In any proceedings a certificate signed by the Director
General that a document is one lodged by an operator to
comply with section 41 or 42, or one that accompanied
documents so lodged, shall be admissible as evidence of the
facts certified.

  (4)   Where an operator fails to comply with section 41 or
42, the operator shall be guilty of an offence and shall, on
conviction, be liable to a fine not exceeding twenty thousand
ringgit and to a daily fine not exceeding two hundred ringgit.

Returns of changes in

registration particulars.
45.   (1)   Subject to subsection (3), where an operator is
registered under this Act in respect of either class of takaful
business, the operator shall from time to time, until the
operator ceases to be so registered, notify the Director
General in writing of any change affecting the operator’s
registration particulars, and shall do so within three months
of the change taking place.

  (2)   Where the change consists in the amendment of any
document, or the replacement of any document by a new
document, the operator shall furnish the Director General
with a copy of the document showing the amendments or, as
the case may be, with a copy of the new document.

  (3)   This section shall have effect subject to any prescribed
exceptions, and the Director General may in any particular
case dispense (either unconditionally or subject to any
conditions) with the furnishing of information under this
section about any matter.

  (4)   In this section “registration particulars” means the
documents and information furnished by the operator to
comply with subsection (3) of section 8 or in the case of an
international takaful operator, subsection 40B(1) when
applying to be registered in respect of the class of business in
question, or furnished by the operator to comply with this
section in respect thereof.

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Investigation of affairs

of takaful operator.
46.   (1)   The Director General may institute an investigation
into the whole or any part of the business carried on by an
operator registered under this Act, if it appears to the
Director General—

(a) that the operator is or likely to become unable to meet
its obligations;

(b) that the operator has failed to comply with any
provisions of this Act relating to takaful funds;

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(c) that the operator, having been given notice under
section 33, has not, within one month thereafter
furnished the required information fully and
satisfactorily;

(d) that the operator has failed to comply with any
provisions of section 41, 42 or 45;

(e) that the expenditure or any class of expenditure
incurred in procuring, maintaining or administering
any takaful business of the operator is unduly high in
relation to the income derived from contributions;

(f) that the method by which any income or expenditure
of the operator is apportioned between takaful funds or
between a takaful fund and any other fund or account
is inequitable; or

(g) that any information in the possession of the Director
General calls for such an investigation.

  (2)   Before instituting an investigation under this section,
the Director General shall serve on the operator a notice in
writing specifying that before the completion of any
investigation under this section the operator shall not under
any circumstances save with the prior written approval of the
Director General dispose of any assets vested in or accruing
to the operator.

   Notwithstanding the generality of the above for the
purpose of this section, assets include but are not limited
to—

(i) immovable assets any land, building and
fixtures;

(ii) movable assets any furniture, equipments ,
books, periodicals and any
other movable items, any
motor vehicles, vessels,
ships, aircrafts and other
means of conveyance of
whatever description
including any tractor,
bulldozers and any other type
of light and heavy machinery
as well as tools and
appliances;

(iii) investments any federal, state and local
government securities
including securities of any
quasi-government bodies or
agencies;

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(iv) company and other
investments

any stocks and shares
whether quoted in any stock
exchange or unquoted;

(v) cash any cash deposited in any
bank, lending institution or
placed with any other bodies
or agencies for whatever
period either on current or
deposit account including any
determinable amount of cash
in hand;

(vi) other assets any outstanding
contributions, commission
and other debts or payment
due and payable and rights
contractual or otherwise
accruing to or vested in the
operator.

  (3)   The Director General may himself make the
investigation or may appoint an inspector to make it and
report the results of it to him.

  (4)   The Director General may appoint an auditor (other
than the auditor who prepares statements of account or other
statements of the operator under section 41), an actuary, or
any other suitable person to be an inspector to carry out the
investigation under this section and the cost of such an
investigation shall be paid by the operator.

  (5)   In making an investigation under this section, the
Director General or inspector may require—

(a) the operator, or any person having the custody thereof
on behalf of the operator;

(b) any person who is or has at any time been or acted as a
director, actuary, auditor, officer, servant or agent of
the operator; or

(c) any past or present participant of the operator,

to produce for his inspection, and allow him to have access
to and to copy the whole or any part of, any books, accounts,
records, or other documents of the operator, whether kept in
Malaysia or elsewhere (including documents evidencing the
operator’s title to any assets):

   Provided that a requirement under this subsection shall
extend only to documents relating to business carried on by
the operator in Malaysia, or evidencing the operator’s title to
assets held for the purposes of any such business.

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  (6)   In making an investigation under this section, the
Director General or inspector may require any such
individual as is specified in subsection (5) to attend before
him and be examined on oath with respect to the operator’s
business, and for the purposes of this subsection may
administer oaths.

  (7)   If any person refuses or fails, when required to do so
under subsection (5) or (6), to produce any document in his
custody or power or to attend for or submit to examination
by the Director General or inspector, or to answer any
question put to him on such examination, the Director
General or inspector may certify the refusal under his hand
to the High Court; and the High Court may thereupon
enquire into the case, and after hearing any witnesses who
may be produced against or on behalf of the alleged offender
and after hearing any statement which may be offered in
defence, punish the offender in like manner as if he had been
guilty of contempt of the High Court.

Powers of Director

General to issue
directions.

47.   (1)   Where the Director General is satisfied that the
affairs of an operator are being conducted in a manner likely
to be detrimental to the public interest, the interests of the
participants, or the interests of the operator, the Director
General may issue such directions to the operator as he
considers necessary and may in particular require the
operator—

(a) to take such action or engage such management
personnel as may be necessary to enable the operator
to conduct its business in accordance with sound
takaful principles;

(b) to remove any of its directors whom the Director
General considers not a fit and proper person to
remain a director;

(c) to take action as to the disposal or recovery of its
assets;

(d) to take steps for the recovery by the operator of sums
appearing to the Director General to have been
illegally or improperly paid;

(e) to cease renewal or cease issue of certificates of the
classes of business to which the direction relates;

(f) to make such arrangements with respect to re-takaful
as the Director General specifies.

  (2)   The Director General may modify or cancel any
direction issued under subsection (1) and in so doing may
impose such conditions as he thinks fit.

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  (3)   An operator who fails to comply with any direction
issued under subsection (1) shall be guilty of an offence and
shall be liable, on conviction, to a fine not exceeding twenty
thousand ringgit or to imprisonment for a term not exceeding
six months or to both and to a further fine of four thousand
ringgit for every day during which the offence is continued
after conviction.

General provisions as

to winding up.
48.   (1)   The persons who may petition under the
Companies Act 1965 for the winding up of an operator
registered under this Act, or for the continuance of the
winding up of such an operator subject to the supervision of
the Court, shall include the Director General.

  (2)   The Director General shall be a party to any
proceedings under the Companies Act 1965, relating to the
winding up of such an operator, and the liquidator in such a
winding up shall give him such information as he may from
time to time enquire about the affairs of the operator.

  (3)   For the purposes of any proceedings under the
Companies Act 1965, for the winding up of such an operator
by the Court, the contingent and prospective liabilities of the
operator in respect of certificates shall, in determining
whether it is unable to pay its debts, be estimated in
accordance with the regulations; and evidence that the
operator was insolvent at the last accounting period for
which statements of account have been lodged with the
Director General under section 41 shall be evidence that the
operator continues unable to pay its debts.

  (4)   If the Minister submits to the Rules Committee
proposals for making special provision under section 372 of
the Companies Act 1965, in relation to operators registered
under this Act or any description of such operators, the
Committee may by rules under that section give effect to the
proposals, either as submitted or subject to such
modifications as the Committee thinks fit.

  (5)   Proposals under subsection (4), and rules made by
virtue thereof, may provide for modifying or excluding, in
relation to operators so registered, provisions of Part X of the
Companies Act 1965, requiring the holding of meetings or
otherwise relating to the procedure in a winding up.

  (6)   In the winding up of an operator registered under this
Act, subsection (2) of section 291 of the Companies Act
1965 (which applies bankruptcy rules in the winding up of
insolvent companies) shall not apply to the valuation of
liabilities in respect of certificates; but in any such winding
up, whether the operator is insolvent or not, those liabilities

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shall be estimated in accordance with the regulations and, as
regards matters not fixed by the regulations, on a basis
approved by the Court:

   Provided that in a member’s voluntary winding up the
basis to be adopted as regards matters not fixed by the
regulations may be approved by the Director General instead
of by the Court.

  (7)   References in this section to an operator registered
under this Act shall extend also to an operator which has
ceased to be so registered but remains under any liability in
respect Malaysian certificates.

Special provision for

takaful operators
directed to cease
takaful business.

49.   (1)   Where the Director General gives an operator a
direction under subsection (1) (e) of section 47, the operator
may be wound up by the Court under the Companies Act
1965 as if it has suspended its business for a whole year (or,
in the case of a winding up under Division 5 of Part X of that
Act as if it had ceased to carry on business).

  (2)   Where the Director General gives an operator a
direction as aforesaid but, on a petition for the operator to be
wound up by the Court, the Court is satisfied that the
operator will be able to pay its debts in full within twelve
months or such longer period as the Court thinks reasonable,
the Court may (if it thinks fit) order the affairs of the
operator to be wound up only as regards the takaful fund
maintained for the class of business to which the direction
relates.

  (3)   An order under subsection (2) for a limited winding up
shall be of the same effect as an order for the operator to be
wound up generally, except so far as this section otherwise
provides.

  (4)   Where such an order is made, the powers of the
liquidator shall be exercisable only for the purpose of
applying the assets of the relevant takaful fund (including the
deposit under this Act) in discharging the liabilities to which
they are applicable, together with the costs, charges and
expenses incurred in the winding up; but the operator shall
from time to time, as the Court may direct, make such
additions to those assets as are required to secure that they
are sufficient for the purpose or shall, if the Court so directs,
discharge any of those liabilities out of other assets.

  (5)   In the winding up of an operator under such an order,
the Companies Act 1965 shall have effect subject to the
following modifications:

(a) section 214 (or, as the case may be, section 316) and

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other sections so far as they relate to contributories
shall not apply;

(b) section 222 shall apply after, as it applies before, the
making of the winding up order, and subsection (3) of
section 126 shall not apply; and

(c) sections 223, 224, 272, 283 and 293 to 299 shall not
apply.

  (6)   Where such an order is made, the Court may at any
time, on the application of the liquidator or of any person
who might petition for the operator to be wound up,
substitute an order for the operator to be wound up generally,
and give such directions as the Court thinks fit as to matters
in progress under the previous order, and, subject to any such
directions, the winding up shall for all purposes connected
with the substituted order be deemed to have commenced at
the time of the application for that order.

Co-operative societies

doing takaful business.
50.   (1)   Where a society registered under the Co-operative
Societies Act, is an operator registered under this Act, no
proceedings for the dissolution or winding up of the society
shall be taken under Part VII of that Act except with the
consent of the Director General and in accordance with such
conditions, if any, as he sees fit to attach to that consent.

  (2)   Notwithstanding—

(a) section 57 of the Co-operative Societies Act 1948, or
section 59 of the Co-operative Societies Ordinances of
Sabah and Sarawak, as the case may be; or

(b) subsection (1) of section 314 of the Companies Act
1965,

any such society which is an operator registered under this
Act shall be deemed to be an unregistered company within
the meaning of Division 5 of Part X of the Companies Act
1965, and may be wound up by the Court accordingly under
that Act:

   Provided that in any such winding up—

(a) the provisions of the Companies Act 1965 shall apply
with the substitution for references to the Registrar of
Companies and the register under that Act of
references to the Registrar and register under the Co-
operative Societies Act; and

(b) the provisions of the Co-operative Societies Act,
which govern the disposal of any surplus, shall apply,
subject to any necessary modifications, as they apply
where a society is wound up under that Act.

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  (3)   Where a society has ceased to be an operator registered
under this Act, but remains under any liability in respect of
Malaysian certificates, this section shall apply as if the
society were an operator so registered.

Schemes for transfer

of business.
51.   (1)   The whole or part of the takaful business of an
operator registered under this Act may be transferred to
another operator registered in respect of the class or classes
of business to be transferred, if the transfer is effected by a
scheme under this section, but shall not be transferred except
by such a scheme:

   Provided that no scheme shall transfer any takaful business
of society registered under the Co-operative Societies Act
except to another society so registered, nor transfer to such a
society any business except that of another.

  (2)   Any operator registered under this Act shall by virtue
of this section have power to make such a transfer by a
scheme under this section, and the directors shall have
authority on behalf of the operator to arrange for and do all
things necessary to give effect to such a transfer; and this
subsection shall apply notwithstanding the absence of the
power or authority under the constitution of the operator or
any limitation imposed by its constitution on its powers or on
the authority of its directors.

  (3)   A scheme under this section may provide for the
business in question to be transferred to a body not registered
as an operator under this Act in respect of the relevant class
of business (including a body not yet in existence), if the
scheme is so framed as to operate only in the event of the
body becoming so registered.

  (4)   A scheme under this section for the transfer of any
takaful business may extend to the transfer with it of any
other business not being takaful business, where the other
business is carried on by the operator as ancillary only to the
takaful business transferred.

  (5)   A scheme under this section may include provisions
for matters incidental to the transfer thereby effected, and
provision for giving effect to that transfer, and in
particular—

(a) for any property, rights or liabilities of the transferor
(including assets comprised in a deposit under this Act
or in a takaful fund) to vest, by virtue of the scheme
and without further or other assurance, in the
transferee; and

(b) for the registration by the transferee of certificates, for

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the amounts to be included in respect of those
certificates in the transferee’s takaful fund and for
other matters arising under this Act out of the transfer.

  (6)   A scheme under this section shall be of no effect
unless confirmed by the High Court, but may be prepared
and submitted for confirmation to the High Court by any of
the operators concerned; and if so confirmed, the scheme
shall have effect according to its tenor notwithstanding
anything in the foregoing sections and be binding on any
person thereby affected.

Confirmation of

schemes.
52.   (1)   Before an application is made to the High Court for
confirmation of a scheme under section 51—

(a) a copy of the scheme shall be lodged with the Director
General together with copies of the actuarial and other
reports (if any) upon which the scheme is founded;

(b) not earlier than one month after the copy is so lodged
notice of the intention to make the application
(containing such particulars as are prescribed) shall be
published in the Gazette and in not less than two
newspapers approved by the Director General; and

(c) for a period of fifteen days after the publication of the
notice a copy of the scheme shall be kept at each
office in Malaysia of every operator concerned, and
shall be open to inspection by all members and
participants of such an operator who are affected by
the scheme.

  (2)   The Director General may cause a report on the
scheme to be made by a qualified actuary independent of the
parties to the scheme and, if he does so, shall cause a copy of
the report to be sent to each of the operators concerned.

  (3)   Copies of the scheme and any such report as is
mentioned in subsection (1) (a) or (2), or summaries
approved by the Director General of the scheme and any
such report, shall, except so far as the High Court upon
application made in that behalf otherwise directs, be
transmitted by the operators concerned, at least fifteen days
before application is made for confirmation of the scheme, to
every participant affected by the scheme.

  (4)   An application to the Court with respect to any matter
connected with the scheme may, at any time before
confirmation by the Court, be made by the Director General
or by any person who in the opinion of the Court is likely to
be affected by the scheme.

  (5)   The Court may confirm the scheme without

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modification or subject to modifications agreed to by the
operators concerned, or may refuse to confirm the scheme.

  (6)   The operators concerned shall be jointly and severally
liable to reimburse to the Director General any expenses
incurred by him under this section in connection with any
scheme or proposed scheme (subject to any order of the
Court as to costs); and a scheme shall include provision as to
how that liability is, as between the operators, to be borne.

Documents to be filed

when scheme
confirmed.

53.   (1)     (a)   Where by a scheme under section 51 takaful
business of an operator is transferred to another, the
transferee shall within one month after the scheme takes
effect, lodge with the Director General—

(i) statements of the assets and liabilities of each operator
concerned as at the time immediately before the
transfer, signed on behalf of the operator and, in the
case of the transferor, indicating whether the transfer
is of the whole of the transferor’s business and, if not,
the extent to which the transferor’s assets and
liabilities relate to the business transferred;

(ii) a copy of the scheme as confirmed by the Court, and a
certified copy of the order of the Court confirming the
scheme;

(iii) copies of any actuarial or other reports upon which the
scheme was founded (being reports made since a copy
of the scheme was lodged under subsection (1) of
section 52); and

(iv) a statutory declaration made by the chairman of
directors of the transferee, or by its principal officer,
fully setting forth every payment made or to be made
to any person whatsoever on account of the transfer,
and stating that, to the best of his belief, no other
payment beyond those so set forth has been, or is to
be, made on account thereof by or with the knowledge
of any operator concerned.

  (b)   In paragraph (a) (iv) references to the making of a
payment include references to the transfer of property or
rights of any description.

  (2)   On the confirmation of a scheme under section 51 each
of the operators concerned shall (unless it is an
unincorporated company) file a copy of the scheme with the
Registrar of Companies or, in the case of societies registered
under the Co- operative Societies Act, with the Registrar
under that Act.

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PART IV

MISCELLANEOUS AND GENERAL

Advice of Syariah
Advisory Council

53A.   (1)   A takaful operator, a takaful agent, a takaful
broker or an adjuster may seek the advice of the Syariah
Advisory Council on Syariah matters relating to its or his
takaful business and the takaful operator, takaful agent,
takaful broker or adjuster shall comply with the advice of the
Syariah Advisory Council.

Act A1212.

  (2)   An association—

(a) whose members are takaful operators, takaful agents,
takaful brokers or adjusters; or

(b) whose members are insurance companies, insurance
agents, insurance brokers or insurance adjusters, some
of whom are operating takaful business,

may seek the advice of the Syariah Advisory Council on
Syariah matters relating to the takaful business of its
members and the association and its members who are
operating takaful business shall comply with the advice of
the Syariah Advisory Council.

  (3)   In this section, “Syariah Advisory Council” means the
Syariah Advisory Council established under subsection 16B
(1) of the Central Bank of Malaysia Act 1958.

Central Bank to be

responsible for
administration, etc. of

this Act, and Governor
of Central Bank to be

Director General of
Takaful.

54.   (1)   The Central Bank shall be responsible for
administering, enforcing, carrying out and giving effect to,
the provisions of this Act and the Governor of the Central
Bank shall be the Director General of Takaful and shall
exercise, discharge and perform on behalf of the Central
Bank, the powers, duties and functions conferred on the
Director General under this Act.

Act A737.

  (2)   In the exercise of his functions the Director General
shall act in accordance with any general directions of the
Minister.

  (3)   In the exercise of his functions under sections 18, 30,
34, subsection (3) of section 37, subsection (3) of section 38
and section 47 the Director General shall first consult the
Minister and shall act in accordance with any directions
given by the Minister.

  (4)   If the Director General (or the acting Director General
for the time being during a vacancy or during the absence or
incapacity of the Director General) is not a qualified actuary,
the Minister shall arrange for the services of a qualified

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actuary to be available at all times for the purposes of
advising in relation to matters arising under this Act.

  (5)   Without prejudice to the provisions of subsection (6),
the Director General may appoint any officer of the Central
Bank to exercise or perform all or any of the powers, duties
or functions of the Director General under this Act.

Act A699.

  (6)   The Director General may authorize or appoint any
person to assist him in the exercise of his powers or
performance of his duties or functions under this Act either
generally or in any particular case.

Indemnity. 55.   The Director General, any officer of the Central Bank

appointed under subsection (5) of section 54, any person
appointed under section (3) of section 46, or any person
authorized or appointed under subsection (6) of section 54
shall not be liable for anything done or omitted to be done in
good faith in the exercise of any power or the performance of
any function or duty conferred or imposed by this Act or any
regulations made thereunder.

Act A699.

Officers deemed to be

public servants.
F.M.S. Cap. 45.

55A.   For the purposes of this Act, the Director General, any
officer of the Central Bank appointed under subsection (5) of
section 54, any person appointed under subsection (3) of
section 46, and any person authorized or appointed under
subsection (6) of section 54 shall be deemed to be public
servants within the meaning of the Penal Code.

Act A699.

Annual reports. 56.   (1)   Not later than the end of April in any calendar year

the Director General shall prepare and submit to the Minister
a report on the working of this Act during the preceding
calendar year.

  (2)   The Director General shall include in his report under
this section for any year, copies or summaries of documents
lodged with him in that year under sections 41 and 42, other
than documents excepted from subsections (1) and (2) of
section 44, and may include copies or summaries of
documents accompanying those lodged as aforesaid; and he
may also include in the report such notes on any such
documents or summaries as he thinks fit, and copies of any
correspondence between him and the operator about any
such documents lodged by or received from the operator.

  (3)   On receiving a report under this section, the Minister
shall lay a copy of it before each House of Parliament.

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Statistics. 57.   (1)   Regulations may provide for the collection by or
on behalf of the Director General, at such intervals or on
such occasions as may be prescribed, of statistical
information as to such matters relevant to takaful as may be
prescribed, and may provide for the collection and use of
such information for any purpose, whether or not connected
with takaful.

  (2)   Such regulations may make provision for requiring
operators, takaful brokers and adjusters to furnish to the
Director General, in the prescribed form, such information as
may be prescribed.

  (3)   No use shall be made of any information obtained by
or on behalf of the Director General by virtue only of this
section except in a form which does not disclose the affairs
of any particular person.

Service of notices. 58.   A letter containing a notice or other document to be

served by the Director General under the Act shall be
deemed to be addressed to the proper place if it is addressed
to the place in Malaysia which the addressee last indicated to
the Director General as his address or to the addressee’s
latest address in Malaysia known to the Director General.

Secrecy and penalty. 59.   (1)   Except for the purposes of this Act or of any

criminal proceedings under this Act, no person appointed to
exercise any powers under this Act shall disclose any
information with respect to any individual business or the
affairs of any individual participant of an operator which has
been obtained in the course of his duties and which is not
published in pursuance of this Act.

  (2)   Any person knowingly contravening the provisions of
subsection (1) shall be guilty of an offence and shall, on
conviction, be liable to a fine not exceeding twenty thousand
ringgit or to imprisonment for a term not exceeding one year.

Exemption. 59A.   The Minister may, on the recommendation of the

Director General, if he considers it consistent with the
purposes of this Act, by order published in the Gazette,
exempt with or without conditions, any takaful operator,
international takaful operator or person from all or any
provision of this Act.

Act A1306.

General provisions as

to offences.
60.   (1)   Any person who—

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(a) signs any documents lodged with the Director General
under section 41 or 42, or under subsection (1) (a) (i)
of section 53; or

(b) furnishes the Director General with any information
under or for the purposes of any other provision of this
Act,

shall use due care to secure that the document or information
is not false in any material particular; and if he does not use
care in this behalf and the document or information is false
in a material particular, he shall be guilty of an offence and
shall, on conviction, be liable to a fine not exceeding twenty
thousand ringgit or to imprisonment for a term not exceeding
six months or to both.

  (2)   Any person who breaches any duty imposed on him by
or by virtue of this Act or any regulations made under this
Act as being or having been an operator, takaful broker or
adjuster shall be guilty of an offence and shall, in a case
where no other penalty is provided for by this Act or
regulations made under this Act, be liable on conviction to a
fine not exceeding two thousand ringgit and to a daily fine
not exceeding two hundred ringgit.

  (3)   Where an offence under this Act is committed by any
company or body corporate, any person who at the time of
the commission of the offence is a director, manager,
secretary or other similar officer of that company or body, or
is purporting to act in that capacity, shall be guilty of the
offence, unless he proves that he exercised all such diligence
to prevent the commission of the offence as he ought to have
exercised, having regard to the nature of his functions in that
capacity and to all the circumstances.

  (4)   Where an offence under this Act is committed by a
company or body corporate, being an offence consisting in
the breach of a duty imposed only on companies and bodies
corporate, any individual guilty of the offence (whether by
virtue of subsection (3) or otherwise) shall on conviction be
liable to imprisonment for a term not exceeding six months
in addition to or in substitution for any fine.

  (5)   For the purpose of any proceedings under subsection
(1) (a) a document purporting to be signed by any person
shall be presumed to have been signed by him, unless the
contrary is proved.

Compounding of

offences.
61.   The Minister may prescribe the offences which may be
compounded under this Act or the regulations made
thereunder and the manner in which the offences may be
compounded.

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Prosecution. 62.   Any prosecution in respect of any offence under this

Act or any regulation made under this Act may be conducted
by the Director General or any person authorized in that
behalf by the Director General.

Jurisdiction of court. 63.   Notwithstanding the provisions of any written law, a

court of a Magistrate of the First Class shall have jurisdiction
to try any offence under this Act and to award the full
punishment for any such offence.

Capacity of infant to

participate.
64.   A person under the age of eighteen years shall not have
the capacity to enter into a contract of takaful.

Payment of family

solidarity claim
without probate, etc.

65.   (1)   When a participant, in relation to any family
solidarity certificate or solidarity certificates, dies and on his
death takaful benefits are payable under the certificate or
certificates, the operator may make payment to a proper
claimant such sum of the solidarity moneys as may be
prescribed without the production of any probate or letters of
administration and the operator shall be discharged from all
liability in respect of the sum paid.

  (2)   If, in any case mentioned in subsection (1), estate duty
is leviable in Malaysia on any such solidarity money, the
operator may notwithstanding—

7/11. (a) Section 50 (ii) of the Estate Duty Enactment 1941 of
the Federated Malay States; or

Sabah Cap. 42. (b) subsection (1) of section 35 of the Estate Duty
Ordinance of Sabah,

pay to a proper claimant such sum as may be prescribed to
be paid under subsection (1) without the solidarity moneys
being included in the schedule or certificate mentioned in the
sections referred to in paragraphs (a) and (b):

   Provided that before making any payment under this
subsection the operator shall give not less than fourteen
days’ written notice by registered post to the Collector of
Estate Duty with such particulars as he may require.

  (3)   Where a sum is paid under subsection (2) on account
of any solidarity moneys and the solidarity moneys are not
within twelve months after the payment is made included in
the schedule or certificate referred to in subsection (2), the
operator shall deposit the balance with the Treasury; but
before refunding such balance to the operator on his

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application to pay to the person entitled to the balance, the
Treasury may apply the whole or part of the sum deposited
in paying any unpaid estate duty leviable on the death.

  (4)   In this section, “proper claimant” means a person who
claims to be entitled to the sum in question as executor of the
deceased, or who claims to be entitled to that sum under the
relevant law.

Knowledge of and

statement by
authorized agent to be

deemed knowledge
and statement by

operator.

66.   (1)   A person who has at any time been authorized as
its agent by a takaful operator and who solicits or negotiates
a contract of takaful in such capacity shall in every such
instance be deemed for the purpose of the formation of the
contract to be the agent of the operator and the knowledge of
such person relating to any matter relevant to the acceptance
of the risk by the operator shall be deemed to be the
knowledge of the operator.

  (2)   Any statement made or any act done by any such
person in his representative capacity shall be deemed, for the
purpose of the formation of the contract, to be a statement
made or act done by the operator notwithstanding any
contravention of section 28 or any other provision of this Act
by such person.

  (3)   This section shall not apply—

(a) where there is collusion or connivance between such
person and the proposed participant in the formation of
the contract; or

(b) where such person has ceased being its agent and the
operator has taken all reasonable steps to inform or
bring to the knowledge of potential participants and
the public in general the fact of such cessation.

Application of other

laws.
Act 125.
Act 136.
Act 89.

Ord. 49/58.
Act 287.

Sabah 3/58.
Sarawak Cap. 66.

67.   (1)   Where there is any conflict or inconsistency
between the provisions of this Act and those of the
Companies Act 1965, the Contracts Act 1950, the Insurance
Act 1963, the Road Traffic Ordinance 1958 and the Co-
operative Societies Act, the provisions of this Act shall
prevail.

  (2)   Without prejudice to the generality of subsection (1),
for the avoidance of doubt, it is hereby declared that the
provisions of the Insurance Act 1963 shall not apply in
relation to a company or society registered under this Act
and carrying on any business which is insurance business
within the meaning of same under the Insurance Act 1963,
and the provisions of all written laws shall apply to such
company or society and to such a business as if it is a

Act A620.

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company or society authorised by law to carry on such
business and issue any policy or certificate required under
any written law in relation to such business.

Regulations. 68.   The Minister may make regulations for carrying into

effect the objects of this Act, and for prescribing anything
which under this Act is to be prescribed.

Power to issue
guidelines, etc.

69.   The Director General or the Minister may, from time to
time, issue such guidelines, circulars or notes as the Director
General or the Minister may deem expedient or necessary for
carrying into effect the objects of this Act.

Act A1306.

FIRST SCHEDULE

[Sections 4 (2) (c), 13 (2), (5) and (6), 17 (3) and (4)]
MALAYSIAN ASSETS AUTHORIZED FOR DEPOSITS AND

TAKAFUL FUNDS
Act 275. 1.   Investment certificates issued under the Government

Investment Act 1983, or any other securities of which the
principal is charged directly or by way of guarantee on the
Consolidated Fund of the Federation or of any State.

2.   Shares in, or securities of, a body incorporated in
Malaysia, which are listed by any stock exchange approved
under the Securities Industry Act 1983.

3.   Shares in, or securities of, a society registered under the
Co-operative Societies Act.

4.   Estates or interests in land in Malaysia and, up to the
value of that security, advances, loans, credit facilities or
financing facilities secured on any such estate or interest.

Act 102.
Act 276. 5.   Any Malaysian currency, and any amount payable in that

currency which is held on current account or any deposit
account in Malaysia with a bank licensed under the Banking
Act 1973 or the Islamic Banking Act 1983 or such other
financial institutions as may be prescribed.

6.   Such other loans or investments in or connected with
Malaysia as may be prescribed.

SECOND SCHEDULE

[Sections 41 (1) and (2), 42 (1), 43 (4), 44 (1) and (2)]
RETURNS BY TAKAFUL OPERATOR

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PART I

DOCUMENTS TO BE LODGED YEARLY

1.   (1)   An operator, to comply with subsection (1) of
section 41, shall lodge such statements of account and other
statements as are mentioned in this paragraph.

  (2)   There shall be lodged for each accounting period—

(a) by an operator registered in respect of family solidarity
business revenue accounts of the business of the
operator, and by an operator registered in respect of
general business a revenue account in respect of that
business; and

(b) by any operator a profit and loss account for the whole
of the operator’s business,

together with separate balance-sheets, as at the end of that
accounting period, for each class of takaful business in
respect of which the operator is registered.

  (3)   There shall be lodged—

(a) by an operator registered in respect of family solidarity
business, statements for each accounting period
giving, as regards certificates belonging to that class of
business, particulars—

(i) as to the issue of new certificates during the period;

(ii) as to the termination or reduction of the liability, or
of the takaful contributions or certificates during
the period, and transfers of certificates to or from
the Register during the period; and

(iii) as to certificates in force at the end of the period;

(b) by an operator registered in respect of general
business, statements for each accounting period giving
as regards certificates belonging to that class of
business particulars as to contributions and claims; and

(c) by an operator registered in respect of either class of
business, a statement for each calendar year giving
particulars as to the assets held at the end of the year
as assets of the takaful fund maintained for that class
of business.

  (4)   Regulations may modify subparagraph (3) (c) so that it
requires statements of the assets of a takaful fund to be made
for parts of a calendar year instead of the whole year.

  (5)   The statement required by subparagraph (3) (c) shall
be excepted from subsections (1) and (2) of section 44.

2.   (1)   With any accounts and balance-sheet lodged under

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paragraph 1 there shall be lodged a certificate of the auditor
signed by him and stating whether in his opinion—

(a) the accounts and balance-sheet are in accordance with
this Act;

(b) the balance-sheet truly represents the financial position
of the operator; and

(c) the books of the operator have been properly kept and
record correctly the affairs and transactions of the
operator:

   Provided that where the audit does not extend to the
whole business of the operator the certificate of the
auditor shall, as regards paragraphs (b) and (c), be
given subject to the appropriate limitation.

  (2)   The certificate of the auditor shall also state—

(a) that the operator has, during the relevant accounting
period, complied with the provisions of subsection (2)
(b) of section 4;

(b) whether in the relevant accounting period any part of
the assets of the takaful fund or funds maintained
under this Act has been applied in contravention of
section 16, and whether during that period section 17
has been complied with in relation to those assets and
any assets falling within subsection (5) of section 17;

(c) as regards the documents evidencing the operator’s
title to any such assets whether he has inspected such
of those documents as are held by or on behalf of the
operator within Malaysia, and whether he has received
satisfactory information as to the whereabouts and
custody of any others, specifying whether the operator
is complying with the requirements of section 20;

(d) whether all necessary and proper apportionments have
been made in preparing the accounts and balance-
sheet, and have been made in an equitable manner; and

(e) such other contravention of the Act as may be
discovered in the course of the audit.

PART II
DOCUMENTS TO BE LODGED ON ACTUARIAL INVESTIGATION

OF FAMILY SOLIDARITY BUSINESS

3.   (1)   An operator registered in respect of family solidarity
business, in order to comply with subsection (1) of section
42 in the case of any actuarial investigation, shall lodge such
documents as are mentioned in this paragraph.

  (2)   There shall be lodged an abstract of the actuary’s

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report, which shall be signed by the actuary and shall
include—

(a) a summary and valuation of the certificates as at the
date of the investigation; and

(b) a valuation balance-sheet as at that date of the business
to which the report relates.

  (3)   There shall be lodged a certificate by the actuary,
signed by him, that he has satisfied himself as to the
accuracy of the valuations made for the purposes of the
investigation and as to their being made in accordance with
this Act, and as to the accuracy of the data on which they are
based:

   Provided that, if the actuary is not a permanent officer of
the operator, the certificate by the actuary shall, so far as it
relates to the accuracy of the data on which the valuations
are based, be given and signed by or on behalf of the
operator’s principal officer in Malaysia, and the actuary shall
in his part of the certificate state the precautions taken by the
actuary to ensure the accuracy of the data.

  (4)   There shall be lodged statements signed by the actuary
analysing as at the date of the investigation the position as
regards certificates and contributions of the business to
which the report relates.

PART III
LODGEMENT, FORM AND CONTENTS

4.   (1)   A document to be lodged by an operator shall be
lodged by sending to the Director General five copies, of
which (unless the document itself is required by this
Schedule to be signed) one copy at least shall be signed by
two of the operator’s directors and by or on behalf of the
operator’s principal officer in Malaysia.

  (2)   The persons signing any balance-sheet shall certify
that in their belief the assets set forth in the balance-sheet are
fully of the value stated in the balance-sheet, less any
investment reserve fund taken into account; and they shall
also either certify that in the relevant accounting period no
part of the assets of the takaful fund maintained under this
Act has been dealt with in contravention of section 16, and
during that period section 17 has been complied with in
relation to those assets and any assets falling within
subsection (5) of section 17, or state the exceptions.

  (3)   The persons signing a balance-sheet in respect of
family solidarity business shall certify that in the relevant
accounting period the provisions of subsection (3) of section
65 with respect to deposits of balance of solidarity moneys

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with the Treasury have been complied with.

5.   (1)   Subject to subparagraph (2), a document shall be
lodged within six months after the relevant date, or within
such longer period as the Director General may allow (but
not exceeding nine months from the relevant date); and for
this purpose the relevant date is the date to which the
document relates or, in the case of an account or statement
for an accounting period, the end of that period:

   Provided that the Director General, upon being satisfied
that the affairs of any operator are being conducted in a
manner likely to be detrimental to public interest, the
interests of the participants, or the interests of the operator,
may in any such case specify a period shorter than six
months for the purposes of this subparagraph.

  (2)   Any such statement of the assets of a takaful fund as is
required by subparagraph (3) (c) of paragraph 1 shall be
lodged within three months of the date to which the
statement relates.

6.   A document shall be in the National Language or
English, and shall (as regards all five copies) be either
printed or, with the permission of the Director General,
produced by other mechanical means approved by him.

7.   Where by this Schedule a document is required to be
signed by or on behalf of the operator’s principal officer, it
shall, if not signed by that officer, be signed by one of the
operator’s officers in Malaysia who is for the time being
notified to the Director General as having authority for the
purposes of this Schedule to sign in place of the principal
officer.

8.   (1)   Subject to the following subparagraphs, a document
shall be in the prescribed form and contain the prescribed
particulars, and be prepared in accordance with the
regulations (including regulations for the way in which any
valuation is to be made or in which any item is to be dealt
with).

  (2)   The Director General may in any particular case permit
such departure as he thinks fit from any requirement of the
regulations under subparagraph (1), if he is satisfied that the
purpose of the document in question will nevertheless be
substantially fulfilled.

  (3)   Without prejudice to subparagraph (2), where an
abstract is to be lodged of an actuary’s report on an
investigation made otherwise than to comply with subsection
(1) of section 42, the abstract may conform with the
regulations under subparagraph (1) subject to any
modifications which the Director General may approve,

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Incorporating latest amendment Act A1306 - Takaful (Amendment) Act 2007

having regard to the purpose of the actuary’s investigation
and the form and contents of his report.

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