Hibah - Overview

Transcription

1. Hibah 1 of 16 PART A OVERVIEW 1 . Introduction 1.1 Compliance with Shariah requirement is a prerequisite in ensuring the legitimacy and integrity of Islamic financial products and services. In meeting this expectation, it is essential for an Islamic financial institution to establish sound operational framework and infrastructure to ensure that its conduct of Islamic financial transactions is consistent with Shariah. 1.2 The Shariah contract-based regulatory policy is intended to promote consistency of Shariah contract application in Islamic financial products and services. This policy is envisaged to strengthen legal certainty and Shariah compliance practices by an Islamic financial institution. 1.3 Hibah is a benevolent contract for the unilateral transfer of ownership of an asset, hereinafter referred to as a hibah asset from a donor to a recipient without any consideration. In the context of Islamic financial transaction, hibah may be arranged with other Shariah contracts or concepts, namely ijarah, mudarabah, musyarakah, wakalah and qard, referred to as hibah arrangements in Part B. An Islamic financial institution may grant hibah to its customer at its own discretion but subject to conditions specified by Shariah requirements. 1.4 In the case of a family takaful certificate and a personal accident takaful certificate effected by a takaful participant upon his life providing for the payment of takaful benefits upon his death, a takaful participant may nominate an individual to receive takaful benefits upon his death under the takaful certificate as a beneficiary under a conditional hibah, if the takaful participant wishes to do so in accordance with the requirements in Schedule 10 of the Islamic Financial Services Act 2013 (IFSA). 1.5 This policy document aims to– (a) provide reference on the Shariah rulings applicable to hibah; (b) set out key operational requirements for the implementation of hibah; and (c) promote end-to-end compliance with Shariah requirements, which further promote sound Islamic banking and takaful practices and safeguard consumer interests. 1.6 This policy document sets out the following: (a) salient features and essential conditions of hibah in Part B; and (b) regulatory and supervisory expectations for the operational requirements on governance and oversight, documentation, risk management, as well as business and market conduct in Part C. Issued on: 3 August 2016
2. Hibah 2 of 16 2 . Applicability 2.1 This policy document is applicable to all Islamic financial institutions as defined in paragraph 5.2. 2.2 For avoidance of doubt, this policy document complements and does not derogate from the requirements of Schedule 10 of the IFSA with regards to a nomination made by a takaful participant for an individual to receive takaful benefits as a beneficiary under a conditional hibah. 3. Legal provisions 3.1 The requirements in Part B of this policy document are specified pursuant to– (a) section 29(1) of the IFSA; and (b) section 33E(1) of the Development Financial Institutions Act 2002 (DFIA). 3.2 The requirements in Part C of this policy document are specified pursuant to– (a) sections 29(2), 57, 135(1) and 155 of the IFSA; and (b) sections 33E(2), 41, 42C(1) and 116 of the DFIA. 3.3 The guidance in this policy document is issued pursuant to section 277 of the IFSA and section 126 of the DFIA. 4. Effective date 4.1 This policy document comes into effect on 31 July 2018, except for paragraph 26 which takes effect immediately upon issuance of this policy document. 5. Interpretation 5.1 The terms and expressions used in this policy document must have the same meanings as assigned under the Financial Services Act 2013 (FSA), IFSA and DFIA, as the case may be, unless otherwise defined in this policy document. 5.2 For the purpose of this policy document– S” denotes a standard, an obligation, a requirement, specification, direction, condition and any interpretative, supplemental and transitional provisions that must be complied with. Non-compliance may result in enforcement actions; “G” denotes guidance which may consist of statements or information, intended to promote common understanding and advice or recommendations that are encouraged to be adopted; “Islamic financial institution” or “IFI” means– (a) licensed Islamic banks; (b) licensed takaful operators and professional retakaful operators; (c) licensed banks and licensed investment banks approved under section 15(1)(a) of the FSA to carry on Islamic banking business; and Issued on: 3 August 2016
3. Hibah 3 of 16 (d) prescribed institutions approved under section 33B(1) of the DFIA to carry on Islamic financial business. 5.3 A glossary of terms used in this policy document is set out in Appendix 2. 6. Related legal instruments and policy documents 6.1 This policy document must be read together with other relevant legal instruments and policy documents that have been issued by Bank Negara Malaysia (the Bank). Issued on: 3 August 2016