Constitutional justices entering the courtroom for the judicial review hearing of the Sharia Banking Law for case No. 65/PUU-XIX/2021, Thursday (1/6/2022). Photo by Humas MK/Ilham W. M.

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Thursday, January 6, 2022 | 16:32 WIB

AKARTA, Public Relations—The Constitutional Court (MK) held the preliminary hearing of the material judicial review of Law No. 21 of 2008 on Sharia Banking on Thursday, January 6, 2022 in the plenary courtroom. The case No. 65/PUU-XIX/2021 was filed by Rega Felix.

At the hearing chaired by Constitutional Justice Wahiduddin Adams, the Petitioner asserted his constitutional loss due to the ambiguous sharia banking provision. He claimed that Article 1 point 12 and Article 26 paragraphs (1), (2), and (3) of the Sharia Banking Law allows the Indonesian Ulema Council (MUI) and the Bank of Indonesia (BI) or the OJK (Financial Services Authority) to delegate unspecified authority to a lower-level provision or what is known as delegasi blangko.

He believes that the a quo law in general only regulates sharia banking, but not the principles of transactions in sharia banking (especially ownership right). As such, sharia principles that must be regulated in a law is not regulated in the a quo law. Instead, through Article 26 paragraphs (1), (2), and (3), it delegates the authority to form regulations to the MUI to issue a fatwa (edict), which is then further regulated in a BI or OJK regulation after the enactment of Law No. 21 of 2011 on the OJK.

“Article 1 point 12 and Article 26 paragraphs (1), (2), and (3) of the Sharia Banking Law is multi-interpretive; how far is the delegated authority? Due to the vast principles of the Islamic law, there are overlaps between materials of the Law and those of the delegated provision. In addition, the Sharia Banking Law delegates the authority to two different institutions—the MUI, a nongovernmental institution, and BI or the OJK, state institutions—that have different lawmaking authority, where MUI stipulates sharia principles and BI or the OJK put them into regulations,” said the Petitioner, who appeared before the Court virtually.

Due to the ambiguity, he added, it seems as if the OJK could forsake regulating those principles in a POJK (OJK regulation). This delegasi blangko and dualism of authority have led to public perception of dichotomy between the state and religious law, compelling them to believe “it is better to follow religious law than state law.” On the other hand, he said, the practices of sharia banking constitute undisguised riba (usury) that is common among conventional banks. This, he asserted, is because there are many conflicting notions in the state law.

The Petitioner stressed that this must be addressed, or it would lead to the ruin of sharia banking due to weak foundation. He believes this has harmed his constitutional rights as a sharia banking customer.

He also argued that Article 26 of the a quo law “forces” MUI, BI, or the OJK to regulate something that is supposed to be regulated in a law.

“Whether [the UUPA (Aceh Government Law)] regulated sharia banking transactions clearly and provided fair legal certainty is a constitutional question that demands an answer, because if the answer is yes, the Sharia Banking Law would not need to regulate it, but if the answer is no, the Sharia Banking Law would need to regulated it so that it will become lex lex spesialis derogat legi generalis [(a special law that prevails)] over the UUPA,” the Petitioner said.

Therefore, in his petitum, the Petitioner requested that the Court order lawmakers to form a law that regulates material rights in sharia banking transactions or to amend the Sharia Banking Law in relation to that matter.

“[I request that the Court] declare Article 1 point 12 and Article 26 paragraphs (1), (2), and (3) of the Sharia Banking Law conditionally unconstitutional insofar as interpreted to mean: 1) The fatwa issued by the MUI is as legally binding as a law; 2) Sharia principles do not have to be regulated in a BI or OJK regulation as institutions that are authorized to regulate sharia banking following the law; 3) The materials on sharia principles regulated in the BI or OJK regulation constitute those of a law,” the Petitioner requested.

In response, Constitutional Justice Suhartoyo asked the Petitioner to make the petition brief so that it would be more easily understandable. “Simplify this petition. I think the substance and the Court’s jurisdiction can be simplified,” he said. He also advised the Petitioner to elaborate the core of the petition.

Meanwhile, Constitutional Justice Enny Nurbaningsih asked the Petitioner to express the gist of the petition. “Just the gist, take the points of the petition. There is no need to elaborate it so that it would not be vague,” she said. She also requested that the Petitioner make the petitum more concise.

Writer        : Utami Argawati
Editor        : Lulu Anjarsari P.
PR            : Tiara Agustina
Translator  : Yuniar Widiastuti (NL)

Translation uploaded on 01/07/2022 18:38 WIB

Disclaimer: The original version of the news is in Indonesian. In case of any differences between the English and the Indonesian versions, the Indonesian version will prevail.

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