The constitutional justices presiding over the judicial review hearing of the Sharia Banking Law for case No. 65/PUU-XIX/2021, Wednesday (1/19/2022). Photo by Humas MK.
Wednesday, January 19, 2022 | 22:39 WIB
JAKARTA, Public Relations—The Constitutional Court (MK) held another material judicial review hearing of Law No. 21 of 2008 on Sharia Banking on Wednesday, January 19, 2022 in the panel courtroom. The case No. 65/PUU-XIX/2021 was filed by Rega Felix, who challenges Article 1 point 12 and Article 26 paragraphs (1), (2), and (3) of the Sharia Banking Law.
At the hearing chaired by Constitutional Justice Wahiduddin Adams, the Petitioner conveyed the revisions to the petition. He had affirmed the object of the issue and the discussion. He also said that all parts of the petition had undergone many changes.
Also read: Stipulation of Sharia Banking Principles Challenged
At the preliminary hearing on Thursday, January 6, 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, which has led to disharmony of the regulations on sharia banking as well as legal uncertainty.
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.
Due to the ambiguous interpretation of the regulation, 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.
Writer : Utami Argawati
Editor : Nur R.
PR : Tiara Agustina
Translator : Yuniar Widiastuti (NL)
Translation uploaded on 01/20/2022 10:08 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.
Wednesday, January 19, 2022 | 22:39 WIB 303