The Litigation Aspects in Solving Banking Disputes in the Sharia Sector

Hasyim Sofyan Lahilote ,Wulanmas Apg Frederik ,J Ronald Mawuntu ,Abdurrahman Konoras

doi:10.7176/ppar/9-8-07

Abstract

The expansion of authority, duties, and functions of the Religious Judicature, has led the authority of the Religious Judicature are not solely in charge of the conventional fields, such as marriage, divorce, inheritance, grant ( hibah) , charity ( zakah), and others, but the authority in the field of Islamic economics, particularly Islamic banking as well. Disputes between Islamic Banking and its customers are mostly caused by customers’ default towards agreement provision, the Financing Agreement to the detriment of the Islamic Bank. The default litigant from an offense under the substance of Financing Agreement that can be through by litigation in the Religious Judicature or non-litigation as through Basyarnas. This research is about the competence of Religious Judicature in resolving disputes Islamic Banking as a normative legal research using several approaches including legislation approaches. The research found that the settlement of Islamic banking dispute in Indonesia has external and internal constraints. External constraints, such as lack of harmonization among legislation, it even contradicts one another. Then, internal constraints such as the lack of the Religious Judicature judges understanding on various aspects of Islamic Banking, because those are relatively new, while the judges mostly experienced in resolving divorce, inheritance, grants ( hibah ), endowments ( waqaf ), and so forth. The results of this study recommend the need for harmonization and synchronization between legislation related to the drafting, moreover, a new procedural law of Religion Judicature in lieu of procedural law based HIR / RBg and increasing the ability of the Judges in reforming Islamic law through the Judge's decision are necessary. Keywords: Religious Judicature, Islamic Banking, Authority. DOI : 10.7176/PPAR/9-8-07 Publication date : August 31 st 2019

Highlights

Article 49 point h explains that the "Islamic Economics" is an action or business activities are carried out according to the following Islamic principles: a
Conventional banks regulated in Act Number 7 of 1992 on Banking, that is not as Islamic banking, is based on the principle of profit sharing, Article 6 point m of Act No 7 of 1992 on Banking, stated that " Commercial Bank business provides financing for customers based on the principle of profit sharing in accordance with the provisions set by Government Regulation."3 Government regulations here mean Government Regulation No 72 of 1992 on Banking based upon the Profit Sharing Principle,4 of Act No 7 of 1992 on Banking
Act Number 48 of 2009 on Judicial Power, specifies in Article 58 that " dispute resolution attempt of the civil code can be done outside the State Court through arbitration or alternative dispute resolution."9 According to Article 58 of Act Number 48 of 2009 on Judicial Power, dispute settlement can be reached through arbitration and alternative dispute settlement

Summary

Introduction

The source of the Religious Judicature authority in resolving disputes and Islamic Banking, set in the legislation, namely Article 55 paragraph (1) of Act Number 21 of 2008 on Islamic Banking, which states that "the Settlement of Islamic Banking is done by the court within the Religious Court. The Constitutional Court decision according to Eddie Hudiata,6 raises the problem of the new law such as lack of legal certainty for the parties that will settle the Islamic Banking disputes through non-litigation ways.

Results

Conclusion