Petitioner Rega Felix explaining the subject matter of the petition virtually at the judicial review hearing of Law No. 16 of 2019 on Marriage to hear the expert for the Indonesian Ulema Council (MUI) as a Relevant Party, Wednesday (10/19/2022). Photo by MKRI/Ifa.

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Wednesday, October 19, 2022 | 15:57 WIB

JAKARTA (MKRI)—The Constitutional Court (MK) held a preliminary hearing for the judicial review of Article 25 of Law No. 19 of 2008 on Sovereign Sharia Securities (SBSN) and its elucidation for case No. 100/PUU-XX/2022 on Wednesday, October 19, 2022. The petition was filed by Rega Felix, an individual citizen.

At the hearing, the Petitioner argued that his rights had actually and could potentially be harmed by the enactment of Article 25 of the SBSN Law and its elucidation, which he claimed had allow the Government to cherry-pick sharia principles. This, he alleged, had eliminated his right to worship according to his faith and to fair legal certainty over sharia principles. He argued that the phrase ‘sharia principles’ in Article 25 of the SBSN Law was ambiguous.

“The multi-interpretive nature is clear when there is a question whether what is the plural is the institution that determines sharia principles or the substance of sharia principles. If the plural is the substance, of course the meaning of ‘sharia principles’ in Law No. 21 of 2008 is already plural without needing to be declared as ‘sharia principles,’” he said before Constitutional Justices Wahiduddin Adams (panel chair), Enny Nurbaningsih, and Arief Hidayat.

He argued that the meaning of ‘sharia principles’ based on the elucidation to Article 25 of the SBSN Law (“The institution with authority to determine fatwa in the area of sharia is the Indonesian Ulema Council (MUI) or any other institution as appointed by the Government”), refers to the number of institutions authorized to determine sharia principles. This shows that the plurality of sharia principles is determined by the plurality of the authorized institutions.

“The framework of Sovereign Sharia Securities (SBSN) is very ambiguous because the context is that the Government needs the legitimacy of sharia principles from religious authorities, but whether they have the legitimacy to stipulate sharia principles or fatwas is determined by the Government. Thus, it is actually the Government that has the legitimacy to determine the legitimacy of sharia principles,” the Petitioner explained.

He added that the ambiguity in the Government’s logic shows that it does not want to lose control over the people’s religious beliefs and made it so that people would not be confused about choosing a fatwa institution, the determination of sharia principles on sharia banking to be done by the MUI. Meanwhile, the Government is free to appoint the fatwa institution. This is contrary to the principle of equality before the law as referred to in Article 28D paragraph (1) of the 1945 Constitution.

“The fact is that after the appointment of a mass organization with the authority to issue fatwas, the public became confused. People began to question whether Islamic banking transactions are legal or not. The general practice that occurs is that there is no transfer of ownership rights or name transfer or registration to banks in Islamic banking transactions. However, the Petitioner doubts whether there is a solid legal basis because each institution gives a different interpretation,” he explained.

Therefore, in his petition, the Petitioner requests that the Court declare the phrase ‘sharia principles’ in Article 25 of the SBSN Law not legally binding as long as it does not mean ‘sharia principles’ and the phrase ‘or any other institution as appointed by the Government’ not legally binding conditionally as long as it is not interpreted as ‘the authority of the Indonesian Ulema Council as an institution authorized to stipulate fatwas in the field of sharia is temporary until the establishment of a state institution authorized to stipulate sharia principles in the field of sharia economics.’

Justices’ Advice

Responding to the petition, Constitutional Justice Enny Nurbaningsih asked him to add the article being petitioned and its elucidation in the subject of the petition. She also suggested that he add the Lawmaking Law in the part on the Court’s authority.

“Because it is related to the Court’s authority, only then do you draw conclusions regarding what is being reviewed here, i.e. Article 25 and its elucidation and touchstone. Please add this, including the new law,” she said.

Meanwhile, Constitutional Justice Arief Hidayat asked the Petitioner to build an argument against the a quo article. “Are Article 25 and the elucidation consistent, coherent, and correspond to, for example, Article 28E paragraphs (1) or (2) [of the Constitution]? If they are contradictory, what is the argument? Make a comparison to other countries,” he advised.

Before concluding the hearing, Constitutional Justice Wahiduddin Adams requested that the Petitioner submit the revised petition no later than Tuesday, November 1, 2022. “The revised petition, both hardcopy and softcopy, will be received by the Registrar’s Office no later than 13:30 WIB,” he said.

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

Translation uploaded on 10/20/2022 09:14 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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