Deputy Chief Justice Aswanto reading out the Court’s legal considerations at the ruling hearing of the material judicial review of Law No. 21 of 2008 on Sharia Banking, Wednesday (8/31/2022). Photo by MKRI/Ifa.
Wednesday, August 31, 2022 | 20:42 WIB
JAKARTA (MKRI)—The Constitutional Court (MK) ruled to reject the entire material judicial review petition of Law No. 21 of 2008 on Sharia Banking at a ruling hearing on Wednesday, August 31, 2022. Deputy Chief Justice Aswanto and Constitutional Justice Saldi Isra took turns reading out the Court’s legal considerations in Decision No. 65/PUU-XIX/2021.
The Court asserted that Article 1 point 12 and Article 26 paragraphs (1), (2), and (3) of the Sharia Banking Law had not led to legal uncertainty because the regulation of sharia principles in laws and regulations was appropriate and proportional. The proportionality of sharia principles was actually based on fatwa of the Indonesian Ulema Council (MUI) as a religious authority recognized by Muslims in Indonesia and was mandated by the state, Justice Saldi read. It was also carried out by organs representing state authorities in financial services or sharia banking, namely the Bank of Indonesia (BI) or the OJK (Financial Services Authority).
Sharia principles established through fatwas and issued by the institution authorized to determine fatwas (in this case the National Sharia Board of the MUI (DSN-MUI)) is a form of guarantee, protection, and legal certainty for Muslims who want a sharia-based economic life following Article 28D paragraph (1) of the 1945 Constitution. In this case, the state provides guarantee that sharia principles that underlie the formation of sharia banking regulations are the result of MUI fatwas by experts from various organizations with different backgrounds as well as input from a team of experts in banking, economics, accounting, capital markets, insurance, BI, OJK, law, and the Supreme Court. Thus, fatwas are determined from various points of view, which provides legal certainty and security for stakeholders in carrying out Islamic banking activities.
“The legislators have put something in the right position by submitting the determination of sharia principles to scholars who are experts in the field of sharia. Then put these principles in the legislation, namely PBI/POJK so that the sharia principles resulting from the fatwas of the ulama can apply and bind in general,” Justice Saldi said reading out the Court’s legal considerations alongside Chief Justice Anwar Usman and the other seven constitutional justices.
Justice Saldi also said the regulation of sharia principles through a fatwa by the DSN-MUI, which is then stated in a BI or OJK regulation, is the state’s effort to recognize, respect, protect, and facilitate Muslims in their worship according to their beliefs as per Article 29 of the 1945 Constitution. Therefore, the Petitioners’ argument on the unconstitutionality of Article 1 point 12 of the Sharia Banking Law along the phrase “based on a fatwa issued by an institution that has the authority to issue fatwas in the field of sharia” and the unconstitutionality of Article 26 paragraph (1) of the Sharia Banking Law along the phrase “sharia principles,” the unconstitutionality of Article 26 paragraph (2) of the Sharia Banking Law along the phrase “Sharia Principles as referred to in paragraph (1) are fatwaed by the Indonesian Ulema Council,” and the unconstitutionality of Article 26 paragraph (3) of the Sharia Banking Law were legally groundless.
“The Court concluded that it had the authority to hear the a quo petition; the Petitioner had legal standing to file the a quo petition; the subject matter of the petition was legally groundless in its entirety,” said Chief Justice Anwar Usman reading out the verdict.
Also read:
Stipulation of Sharia Banking Principles Challenged
Petitioner Revises Material Judicial Review Petition of Sharia Banking Law
House Explains MUI’s Authority Over Fatwa on Sharia Banking
Sharia Regulation Based on MUI Edict Guarantees Legal Certainty
BI: DSN MUI’s Fatwas Determine Sharia Banking Products
MUI’s Strategic Role in Sharia Banking
Fatwa MUI dalam Perbankan Syariah Sudah Tepat dan Proporsional
The material judicial review case No. 65/PUU-XIX/2021 on Sharia Banking Law was filed by Rega Felix. 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 believed 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 was not regulated in the a quo law. Instead, through Article 26 paragraphs (1), (2), and (3), it delegated the authority to form regulations to the MUI to issue a fatwa (edict), which was 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 seemed as if the OJK could forsake regulating those principles in a POJK (OJK regulation). This delegasi blangko and dualism of authority had 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 was common among conventional banks. This, he asserted, was 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 believed this had harmed his constitutional rights as a sharia banking customer.
He also argued that Article 26 of the a quo law “had forced” MUI, BI, or the OJK to regulate something that was supposed to be regulated in a law.
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 : Sri Pujianti
Editor : Nur Rosihin Ana
PR : Tiara Agustina
Translator : Yuniar Widiastuti (NL)
Translation uploaded on 9/7/2022 09:44 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, August 31, 2022 | 20:42 WIB 305