A judicial review hearing of the Sharia Banking Law to examine the petition, Thursday (10/5/2023). Photo by MKRI/Ilham W.M.

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JAKARTA (MKRI) — The preliminary hearing of Article 19 paragraph (2) letter c of Law No. 21 of 2008 on Sharia Banking took place in the Constitutional Court (MK) on Thursday, October 5, 2023. The petition No. 118/PUU-XXI/2023 was filed by Lisa Corintina, a customer of the Wisma Metropolitan branch sharia unit of PT Bank CIMB Niaga Tbk.

Article 19 paragraph (2) letter c reads, “A Sharia (Islamic) Commercial Bank business shall include: distributing the revenue-sharing financing based on mudharabah, musyarakah, or other contracts that are not against the Sharia Principle.”

Through legal counsel Adhypratama Febriansyah Asshiddiqie, the Petitioner stated that the article has caused constitutional harm to her because it does not explain the musyarakah contract, which is in line with sharia principles, in detail. The ambiguity of the article has an impact on the practice of Islamic financial services in Indonesia; there are still Islamic financial services institutions that do not operate in conformity with sharia principles.

Interpretation of Musyakarah Contract

As a customer of Islamic financial services, the Petitioner feels she has not received financial services that are truly in line with Islamic sharia principles. “(The Petitioner) is a debtor and/or customer of the Wisma Metropolitan branch sharia unit of PT Bank CIMB Niaga Tbk. She feels that the financial services she have been using are not in line with sharia principles, because there are practices that are not in line with sharia principles in the application of musyarakah contracts by sharia financial service institutions for the public in general and especially the Petitioner as a user of sharia financial services,” explained Adhytpratama.

In her petitum, the Petitioner requests the Court to declare the Article 19 paragraph (2) letter c of the Sharia Banking Law unconstitutional and not legally binding. She also requests the Court to interpret the phrase “musyarakah contract” in Article 19 paragraph (2) letter c of the Sharia Banking Law.

Justices’ Advice

In response to the petition, Constitutional Justice Suhartoyo asked the Petitioner to recheck the posita. “Try to find the contrast between of Article 19 paragraph (2) letter c and Article 29 paragraph (2) of the 1945 Constitution or if there is another touchstone. The posita says that this norm does not specify the musyarakah contract, even though the norm [does not only concern] musyarakah contracts, but also mudharabah contracts and others. Is this the norm correct or is it Bank CIMB Niaga that lacks education?” he said.

Meanwhile, Constitutional Justice Enny Nurbaningsih questioned the Petitioner whether she wishes the phrase “musyarakah contract” or the entire Article 19 paragraph (2) letter c be reviewed. “From the beginning, it must be certain because what you have described here is actually that you feel that you have not received services in accordance with sharia, so if it is related to the issue of norm constitutionality, you must be cautious. So you [requests] the review of this norm’s constitutionality to the Constitutional Court. You must understand that the question before the Constitutional Court is not one of implementation. You must be able to distinguish that,” she said.

At the end of the hearing, the panel of justices informed the Petitioner that she would have 14 workdays to revise the petition and to submit it to the Registrar’s Office no later than Tuesday, October 18, 2023 at 09:00 WIB. 

Author       : Utami Argawati
Editor        : Nur R.
PR            : Muhammad Halim
Translator  : Nyi Mas Laras Nur Inten Kemalasari/Yuniar Widiastuti (NL)

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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