TAKAFUL SEBAGAI ALTERNATIF KEPADA ‘AQILAH DALAM MENJELASKAN PAMPASAN KEPADA PIHAK KETIGA: PERBINCANGAN ISU-ISU FIQH BERBANGKIT

Since 1973, the rights of traffic accident victims inMalaysia have been protected by the law throughmandatory obligation to all vehicle owners to beinsured against third party risk since 1973. Despiteoffering a good service of preparing a promising fundas compensation for the injury or fatality inflictedupon third parties in traffic accidents, third partyinsurance is still considered haram (impermissible)by Islamic scholars due to its non-compliantoperation with several Islamic principles. As analternative, Takaful which is in line with the Islamic principle of mutual assistance has been financiallyinstitutionalised in 1984 in Malaysia. In terms of third parties in accident cases, many contemporaryscholars associate the concept of Motor Takafulwith ‘aqilah. Therefore this paper aims to study therelation between Takaful and ‘aqilah. Is Takafula compatible analogy (qiyas) to ‘aqilah or does itonly serve as an alternative to the institution whichis non-existent in the modern world as its form wasin the early days of Islam. Furthermore, severalissues relating to ‘aqilah’s role in paying diyat tothe third party is discussed such as the membershipof ‘aqilah. As Islamic scholars opine that ‘aqilah’smembers must be from the same religion, must the same requirement be applied to Takaful? Basedon comparative analysis, the study has shown thatalthough Takaful and ‘aqilah are based on mutualcooperation or al-tanasur principle, there aresignificant differences between the concepts of thesetwo institutions. Hence, Takaful is not analogical to‘aqilah but an alternative only. Therefore, Takafuloperation is not bound to all the rulings in ‘aqilah.This also denotes that Motor Takaful fund which iscontributed by the participants, be it Muslims ornon-Muslims may be used as compensation to thethird party on behalf of the negligence of any Takafulparticipants in their driving.