Applicant: Contrary Article 55 paragraph (1) and of paragraph (2) of Islamic Banking Act
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Preliminary examination No. 21/2008 concerning Islamic Banking - Case No. 93/PUU -X/2012 - held by the Constitutional Court (MK) on Friday (5/10) morning. Petitioner is H. Lina Ahmad (59) a director who lives in Bogor. Applicant testing out Article 55 paragraph (1), paragraph (2) and paragraph (3) of a quo to Article 28D paragraph (1) of the 1945 Constitution.

The applicant is a customer of Bank Muamat Indonesia, Tbk. Bogor branch, has entered as notarial contract. 09-34 dated July 2009 and updated by Al-Musharaka financing agreement (on the extension of the period and the change assurance) with No. 14 dated March 8, 2010. The agreement between the applicant with the Bank Muamalat Indonesia, Tbk. Bogor branch, in akadnya contains one clause that if there is a dispute, then resolved by the District Court (PN).

However, what happened next, raised issues related to the content of Article 55 paragraph (1), paragraph (2) and paragraph (3) of Islamic Banking. Article 55 paragraph (1) Law no. 21/2008 states, "Sharia Banking Dispute resolution by the Court in a religious court." Of Article 55 paragraph (2) of Law no. 21/2008 states, "In the event that the parties have a dispute settlement pledge made in accordance with the contents of the contract." Whereas Article 55 (3) reads, "The settlement of the dispute referred to in subsection (2) must not conflict with the principles of Shariah."

According to the applicant, there was contradictory between Article 55 paragraph (1) of paragraph (2) of a quo. That paragraph (1) expressly set if there is a dispute in Islamic Banking, it must be implemented in a religious court.

While subsection (2), according to Petitioner, gave preference to the party to a contract to choose to be implemented in the jurisdictions where else, if there is a dispute in Islamic banking.

"So it can be assumed the parties may choose whether to take on the religious court or in the Court of General Jurisdiction. Even in other courts were given discretion by Article 55 paragraph (2) Islamic Banking Act, provided that specified in the contract, "said the applicant.

"So with the existence of Article 55 paragraph (2) of a quo clearly is absolutely no rule of law as guaranteed by the 1945 Constitution. Clearly, Article 55 paragraph (2) is so contrary to Article 28D paragraph (1) of the 1945 Constitution, "added the Applicant.

Petitioner explained, because of the absence of legal certainty with the inclusion of paragraph (2) Article 55 of the Islamic Banking Act, also spawned fears in this Act so it was to be subsection (3) Article 55 of the Islamic Banking Act.

"Actually, subsection (3) Article 55 of the Islamic Banking Act do not need to rise if there is no clause (2) Article 55 of the Islamic Banking Act," said the applicant.

Petitioner is said again, that reflects the rule of law as guaranteed to Article 28D paragraph (1) of the 1945 Constitution, the clause (2) Article 55 of the Islamic Banking Act shall be declared to have binding legal force. (Nano Tresna Arfana / mh/Yazid.tr)


Sunday, October 07, 2012 | 17:57 WIB 287