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The review of Act 21/2008 concerning Islamic Banking - Case No.93/PUU-X/2012 - entered the agenda for a briefing from the Petitioner, on Thursday (20/12) afternoon in the courtroom of the Constitutional Court (MK). Ija Suntana as Petitioner’s experts presented and explained some basic ideas related to the judicial review of Article 55 paragraph (2) and paragraph (3) of Islamic Banking.

IJA said philosophically legal substance of Islamic banking is dominated by Islamic business terms. Therefore, the IJA, it is appropriate to do Islamic banking settlement in the jurisdictions that charge substantially related matters Islamic values.

"If left to the justice system does not apply the rules of sharia, which will appear are discrepancies between the practices of contract dispute resolution," said Ija.

Other things, continued IJA, one of the absolute competence of religious courts are matters resolve economic disputes of sharia. Islamic banking is included in the section of the Islamic economy.

"Therefore, in addition to throwing absolute competence to direct the institutions written, in my judgment is a deviation from the principle of legal certainty. It is stipulated in Article 28D of the 1945 Constitution on human rights which guarantee legal certainty for citizens," said the Ija.

Ija said, when there are two courts are given the opportunity to be selected by the parties to the dispute, it will lead to a choice of forum in the case of the same substance.

"Then, because they were given the freedom to choose, it would lead to legal disorder or lawlessness. Otherwise it will lead to disparities in the decision, may also cause oddities, "added Ija.

Ija continued, when the decision was born of a religious court, while ruling B was born of the general court for the same case, there will be a rarity for the parties to accept the decision. "A court decision really different from the court B. Things like that will arise due to the choice of forum, "said Ija.

Furthermore IJA responses to the Article 55 paragraph (2) and paragraph (3) of Islamic Banking. He explained that in terms of Islamic law will cause ta’aradhul fair or two rules conflict when subsection (2) and paragraph (3) Islamic Banking Act still remained.

Next, IJA asserts that Article 55 paragraph (2) and paragraph (3) Islamic Banking Act violated Article 1 Paragraph (3) of the 1945 Constitution which states that Indonesia is a country of law. One of the characters of the rule of law is legal certainty.

"In addition, Article 55 paragraph (2) and paragraph (3) Islamic Banking Act contravenes Article 28D of the 1945 Constitution which states that one of the human rights, including Islamic banking customers secured by the rule of law," IJA pretext to the Assembly judges led by Judge Achmad Sodiki.

Meanwhile, Dedi Ismatullah, experts presented by Petitioner in his statement also said that Article 55 paragraph (2) and (3) of the Act against the Islamic Banking Law. 50/2009 related to the competence of the Religious. Competence of religious courts is a legal certainty for those who want to litigants in the matter of Islamic economics bank.

Dedi also linked a judicial matter to Article 29 paragraph (2) of the 1945 Constitution, "The State guarantees the independence of each resident to implement Sharia religious adherents." He said implementing Islamic economics in religious courts, it is a form of the implementation of Article 29 paragraph (2) 1945 Constitution.

"So the state has a duty to protect the legal rights of every citizen. Then the third, Article 28 Paragraph (1) of the 1945 Constitution, I think it is clear there about the rule of law. Then each person has the right to recognition and legal protection guarantee fair and equal treatment before the law," explained Dedi.

Agus Hariyadi from the Ministry of Justice and Human Rights also presented the trial. On that occasion, the government did not give information to the judges, but just listen to the testimony of two experts Petitioner. (Nano Tresna Arfana / mh)

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