Legal Construction of Islamic Banking Dispute Resolution through
Litigation in Indonesia and Malaysia
Tri Hidayati
1
and Muhammad Azam Hussain
2
1
Faculty of Sharia, Institut Agama Islam Negeri Palangka Raya, George Obos Street, Islamic Centre Area, Palangka Raya,
Central Borneo, Indonesia
2
School of Law, Universiti Utara Malaysia, 06010 UUM Sintok, Kedah, Malaysia
Keywords: Legal Construction, Dispute Resolution, Islamic Banking.
Abstract: This legal research was aimed to compare the legal construction occurred in the establishment of authorized
litigation institutions to resolve the Islamic banking dispute in Indonesia and Malaysia respectively. This
research used qualitative method with approaches of legislation, concept, and history. The result was both
countries had made legal construction processes in determining the jurisdiction of Islamic banking
authorities with slightly different dynamics and methods. The legal construction process in Indonesia
consisted of two phases. The first was positivization phase with the definition method and argumentum per
analogism. The second was deregulation phase with systematic and grammatical interpretation method.
Whereas Malaysia experienced two phases. First, it was the deregulation phase with systematic method and
principal verbal exposition method. Second, it was the institutionalization phase with systematic
interpretation method.
1 INTRODUCTION
The growth and development of Islamic economics
in Southeast Asia can be regarded as highly
advanced (Lebdaoui and Wild, 2016). The evident
can be seen from the increasing number of Islamic
financial institutions among others Islamic banking
in Malaysia and Indonesia. The development of
Islamic banking in Malaysia as well as in Indonesia
does not rule out the possibility of dispute escalation
that occurs in these banking institutions. There are
various problems that may arise in the practice of
Islamic banking between banks and customers
(Dolly, 2013, p.561). The possibilities of dispute are
usually in the form of a complaint due to
incompatibility between the reality and the offer or
not in accordance with the promised rules. It can
also happen because of the bureaucratic service and
flow that are not included in the draft of the contract.
Moreover, it can as well arise due to complaint
against the slow work process or any broken
commitment conducted by either party.
The principles of Sharia which become the basis
of Islamic banks are not only limited to ideological
foundations, but also as an operational basis (Umam,
2017, p. 391-412). Related to that matter, for Islamic
banks in carrying out its activities, it is not only as
business activities or products. Not only it should be
in accordance with the principles of Sharia, but also
it includes the created legal relationship and the
arising legal consequences. The settlement
mechanism is likewise included in this case if there
is a case of dispute between Islamic bank and its
customer.
Litigation is one of the instruments in resolving
the dispute of Islamic banking (Marcom and
Yaakub, 2015, pp.565-584). It is aside from the non-
litigation alternative institutions that become the
choice of many business people such as arbitration,
mediation, and so forth. Perdana (2009, p.8) argues
that the judiciary still needs to be retained as a
pressure valve in a legal and democratic state. It is
needed although it is only as a last resort institution
when the alternative dispute resolution institutions
still become the first resort. The availability of clear
and applicable regulation becomes very important so
that the process and result of dispute resolution of
Islamic banking through litigation can work
effectively and relevantly with Sharia principles
(Muhammed and Ali, 2017, p. 48-64).
The legal construction process in determining the
judiciary authorized in resolving the Islamic
Hidayati, T. and Hussain, M.
Legal Construction of Islamic Banking Dispute Resolution through Litigation in Indonesia and Malaysia.
In Proceedings of the Annual Conference on Social Sciences and Humanities (ANCOSH 2018) - Revitalization of Local Wisdom in Global and Competitive Era, pages 201-207
ISBN: 978-989-758-343-8
Copyright © 2018 by SCITEPRESS – Science and Technology Publications, Lda. All rights reserved
201

economic dispute becomes an important issue to be
noticed comparatively, including Islamic banking in
both Indonesia and Malaysia. These two countries
have experienced the dynamic phases of Islamic
economic law system formation classified as
revolutionary (Rahardjo, 2009, p. 17). There are
some previous studies such as Abdullah (2017, p.
276-286) and Rashid (2013) that have compared the
Islamic banking dispute settlement system between
Indonesia and Malaysia on mechanism and legal
framework in both countries. Therefore, this paper
will comparatively describe the method used in
constructing the law and legal substance of Islamic
banking law in both countries related to the
resolution of Islamic banking disputes through
litigation.
2 RESEARCH METHOD
This research is based normative method and used
legislation, concept, and history approaches. The
secondary data were analyzed qualitatively by using
systematic interpretation and historical
interpretations methods.
3 LITERATURE REVIEW
3.1 Legal Construction Methods
In the legal state system that followed the ideology
of positivism, it was required to provide a
guaranteed legal regulation and to make sure it was
able to be applied effectively. However, it was not
impossible that the rules made in written form
accommodated all the society problems which
tended to be dynamic. Frequently, there were some
rules found containing conflict between norms,
unclear norms, and legal vacuum. Therefore, it was
necessary to interpret and construct the law in the
frame of law formation or legal discovery
(Mertokusumo, 2009, p. 37). It was in line with
Jhering's opinion that law emerged from the moral
of spiritual and the culture of nation, then passed
through the process of legal reconstruction. Paul
Scholten who developed Jhering’s notion added that
in order to develop logical reasoning method,
construction method was the only decisive method.
There were three conditions offered by Scholten in
legal construction. First, the construction should
cover the entire field of related positive law. Second,
a logical contradiction within the law should be
avoided. Third, the construction must be equipped
with splendor requirements (Rahardjo, 1991, p.
103).
The method of legal construction or the
exposition method was one of the methods in legal
discovery. It was in addition to the interpretation
method generally used by judges (Butarbutar, 2011
and Muwahid, 2017), law researchers and others
related to cases and legislation (Mertokusumo, 2009,
p. 56 and 73). In this paper, the legal construction
was defined more as the process of establishing the
dispute resolution in the Islamic banking legal
system in litigation. It was implied to Indonesia and
Malaysia respectively since these countries were full
of dynamics in the determination of the authorized
judicature institution.
Interpretation method was could be collaborated
with legal construction method so that a new norm
or law could be established. Both interpretation and
construction are activities. Interpretation is the
activity of identifying the semantic meaning of a
particular use of language in context. Construction is
the activity of applying that meaning to particular
factual circumstances (Barnett, 2011, p. 66; Solum,
2011, p.95-96). Interpretation method consists of 1)
grammatical (Solum, 2013, p 67-75), an
interpretation according to daily language; 2)
historical, an interpretation based on law history; 3)
systematic, interpreting the law as a part of the
whole system of legislation; 4) teleological, an
interpretation according to the meaning/purpose of
society; 5) law comparison, an interpretation
conducted by comparing other pandect or other law;
and 6) futuristic, anticipative interpretation based on
the law which had not yet possessed a legal force
(ius constituendum) (Said, 2012, p.187-197). The
construction of this law could be conducted by using
logical thinking. The first was argumentum per
analogism or frequently called “analogy” towards
different but alike, akin or similar events arranged in
the constitution to determine and fill the legal void
that occurred. The second was the law constriction
towards general regulation with explanation or
construction by giving features applied to specific
events or legal relationships. The third was
argumentum a contrario or often called a contrario,
which meant interpreting or explaining constitution
based on the resistance of understanding between the
encountered concrete events and the events that had
been set in constitution ((Mertokusumo, 2009, p. 67-
78; Shidarta, 2016).
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3.2 Effectiveness of Law
In line with the legal construction requirements
emphasized by Scholten, the logical contradiction in
the law must be avoided in order that a definite law
was established and could be applied effectively in
the life of society in the form of behavior in
accordance with the law. In order to create a lawful
behavior, according to Lawrence M. Friedman in his
book Law and Society, cited by Soekanto (1993, p.
43), the effectiveness of a legislation was strongly
influenced by three factors, which was known as the
effectiveness of the law. The first factor was the
legal substance in which the legislation should be
clear, firm and consistent in its formulation (Manan,
2000, p. 225). The second was the legal structure,
comprising of institutions and law enforcement
authorities authorized to create, supervise and
uphold a regulation of applicable law. The third was
legal culture, as in the attitude of the law society in
which the law was implemented.
4 ISLAMIC BANKING DISPUTE
AND AUTHORIZED COURTS: A
LEGAL CONTRUCTION
4.1 Indonesia
Indonesia has experienced a legal construction
process in determining authorized court to resolve
the Sharia economy dispute. This construction
process could be classified into two phases:
positivization phase and deregulation phase. The
new phase of the Islamic banks development in
Indonesia began with the implementation of Act
Number 7 of 1992 concerning Banking. It
positivised the principles of Sharia economy through
dual system banking for conventional banks to run
their business based on "profit sharing principle"
(Articles 6 and 13) not yet called “shariah” (Duddy
Yustiady in Dewi. 2006, p. 58). The position of
Sharia banks was even stronger with the existence of
Act Number 10 of 1998 as amendment to Act
Number 7 of 1992 concerning Banking which
affirmed "Bank based on Sharia principles" Article 1
paragraph (3) and (4). It was implied to the rapid
growth and development of Islamic banks to this
day.
At this time, there has been no strict regulation
to regulate judicature institution authorized in
resolving the Islamic banking dispute. Religious
Court has not been authorized to handle this matter
because its authorization was limited by Article 49
of Act Number 7 of 1989 concerning Religious
Court. It could only handle matters of marriage,
inheritance, wills, grants/hibah, endowments/waqf
and alms/infaq among Muslim civilians (Anshori,
2009, p. 214). Islamic economics was classified as
muamalah or civil activity in general context. Civil
cases were one of the jurisdictions of General Court
(Article 50 of Act Number 2 of 1986 concerning
General Court). Through the definition and the
argumentum per analogiam methods, the word
"perdata" was linked with "muamalah" in Islamic
economy in which they had the same meaning
regarding to the relationship of human in privat law.
Based on the principle of muamalah, everything
was permitted until there was a proposition
forbidding it (opening system of Islamic economy
(Yasin, 2015, p.181-204). On this basis, to fill the
legal void, civil law was used in General Court to
resolve disputes related to Islamic Banking. In the
end, District Court was chosen to handle the Sharia
economic dispute in accordance to the clause
agreement approved by the parties. This condition
ran until 2006 by implementing amendment of Act
Number 7 of 1989 to Act Number 3 of 2006
concerning Religious Court. Finally, it had been
changed to Act Number 50 of 2009. The authority of
Religious Court expanded to the field of Islamic
economics including Islamic banking (Article 49
paragraph (i) and its explanation in Act Number 3 of
2006). As for the special area in Banda Aceh
Province, the authority was in the Sharia Court
(Basir, 2012, p.148).
The enactment of Act Number 3 of 2006
apparently could not escape from a conflict. In this
phase, the reconstruction of the law was re-
established due to the legal norm in Article 55
paragraph 2 of the Act Number 21 of 2008
concerning Sharia Banking. It was inconsistent with
Article 55 paragraph 1 of the Sharia Banking Law
and Article 49 letter i of Act Number 3 of 2006
towards the Amendment of Act Number 7 of 1989
concerning Religious Court which established the
settlement of Islamic banking dispute conducted by
Religious Court. Religious Court carried the duty
and authority to examine, decided upon and resolved
cases at the first level among Muslim civilians
(including persons or legal entities who voluntarily
submitted themselves to Islamic law even though
their religious status was not Islam) in the areas of:
marriage, divorce, repudiation, inheritance, bequest,
gift and Sharia economics (including Islamic
Banking). In the explanation of Article 55 paragraph
2 of Islamic Banking Act, it provided an opportunity
for the disputed parties to resolve their case outside
Religion Court if it was mutually agreed upon in the
contents of the contract. This provision was
considered to result in legal uncertainty since there
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203

was a dualism of authority between Religious Court
and District Court so that it may harm the interest of
the parties.
Therefore, systematic method and grammatical
interpretation method were used to describe legal
disorder and confusion caused by the provision of
Article 55 paragraph 2. It could be seen from the
Constitutional Court Decision Number 93/PUU-
X/2012 on 29 August 2013 concerning the
annulment of the Article
(www.mahkamahkonstitusi.go.id). The arguments
were as followed:
1. Islamic Banking used Sharia contracts. If the
dispute was brought to a General Court that did
not use Sharia rules and principles, there would
be a de-synchronization between the practices of
the contract with the resolution of the dispute
which was fatal to the court decision;
2. The existence of ta'arudh al-adillah. It was
regarding to the contradiction of two regulations
when paragraph (2) and paragraph (3) of a quo
constitution still existed generating in legal
uncertainty and contradicted the principles,
objectives and functions of Islamic Banking law
(Article 2 and 3) Article 28 D paragraph (1) of
the 1945 Constitution. Thus, it was undermining
the legal system of Sharia economy in national
legal system;
3. The emergence of chaos prior to or in practice of
the contract. It possibly happened when one
intended to sign a contract in a Sharia Bank; the
bank wanted a dispute resolution in the District
Court, whereas the client wanted to be settled in
Religious Court. Thus, it would certainly cause
problems in the contract;
4. The existence of forum choice. It emerged legal
disorder and decision disparity from two
different verdicts between Religious Court and
General Court.
Based on the decision of the Constitutional
Court, deregulation was carried out. The
cancellation of Article 55 paragraph 2 of the Islamic
Banking Act and constitutionally Religious Court
became the only judicial institution in the resolution
of Sharia economic disputes in Indonesia.
4.2 Malaysia
The legal construction process also took place in
Malaysia in two phases (Kassim, 2016, p.66-76). In
the first phase namely deregulation phase, the
settlement of Islamic banking disputes in Malaysia
prior to 2009 was within the jurisdiction of Civil
Court, not Sharia Court. The authority of Civil Court
was based on Court of Judicature Act 1964 (Act 91)
regulating the Civil Court expansive authority in
criminal law (section 22) and civil law (section 23
and 24).
The legal construction through systematic
method and principal verbal exposition method was
carried out through Article 121 (1A) Federal
Constitution (amendment in 1988). It determined the
judicial authorities for the courts existed in the
Constitution including Civil Court and Sharia Court.
Through this provision, Civil Court no longer had
the authority to deal with matters within the
authority of Sharia Court as it has been enacted
beforehand (Othman, 1996, p. 229 and Majid, 1997,
p. 112-147). It aimed to avoid any conflict of
decisions on cases made by the Court (Shuaib, 2008,
p. 50-51) so that Islamic principles could be applied
holistically (Towpek and Borhan, 2006, p. 83-84).
However, the provision of Article 121 (1A) was
causing a dualism of authority between Civil Court
and Sharia Court instead. According to Federal
Constitution in Paragraph 4 List I (Federal List), the
cases related to the Commercial law were included
under the authority of the Federation as well as
banking, as it was stated under Paragraph 7 in the
same list. Since Islamic banking and finance were
categorized under Commercial law, therefore it
became the authority of Civil Court (Suruhanjaya
Sekuriti Malaysia, 2009, p. 58). According to
Hassan (2008), there were several juridical
arguments that could be pointed out regarding the
authority of Civil Court against Islamic financial
disputes, namely:
1. Although the term "Islamic law" was
incorporated in the applicable laws of Malaysia,
it should be understood that its application was
limited to those who embraced Islam. Therefore,
the enforceability of Islamic law was very
limited, whereas in the Islam financial business
transactions, many people from various religious
backgrounds were involved. Even the number of
non-Muslims was relatively great in the
composition of customers in Islamic banking in
Malaysia.
2. The business of finance and banking was
managed by federal legislation, and so far, there
was no regulation regarding financial and
banking business in legislation in the state. That
was the reason why the state could not manage
financial and banking matters, thus only the
regulation that came from the state (federal
government) was nationally applicable.
Meanwhile, federal legislation (national) was
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attached by the provision that the financial and
banking business were subject to Civil law
regulation. Therefore, the dispute over Islamic
finance businesses would automatically fall
under the authority of Civil Court. On the
contrary, if this dispute was to be settled on
Sharia Court, substantial amendments should be
made. It happened because Sharia Court,
especially in its authority, was governed
autonomously by the state. Consequently, to
make an amendment, another amendment must
be made through state parliaments statewide, in
which in Malaysia there were 13 states plus a
special Federal Territory.
The above arguments used the method of
extensive interpretation, which meant interpreting
broadly the scope of trade including Islamic
banking.
For the above legal disorder, legal construction
was carried out in the second phase
(institutionalization). It was to create a special
judicature institution in the field of Islamic finance.
One of the recommendations of Malaysia Financial
Sector Masterplan 2001-2010 was the development
of Islamic banking and takaful system in Malaysia
supported by judicature institution specialized in
handling cases stated in related laws (Bank Negara
Malaysia, 2001, p. 79-83). In order to resolve the
disputes related to Islamic banking and finance so
that it could work effectively and consistently, it was
advisable to establish a special division in High
Court. The establishment of this division aimed to
ensure that the case was controlled by an expert
judge in a related field (systematic interpretation
method). At the same time, it encouraged lawyers in
order to have particular expertise in Islamic banking
and finance so that they were more likely to provide
advices and insights in the cases they handled.
The establishment of the Muamalat Court was in
accordance with the aspirations of the Kingdom to
promote Malaysia as the center of Islamic Banking
and Finance. As a result, a positive step has been
made by Department of Justice and Law by forming
a special section under Civil Court to deal with
Islamic banking and dispute related to financial
matter based on Practice Direction Number 1 of
2003, issued by the Chief Justice, Dato’ Haidar
Mohd Nor (as he then was). Since 2003, muamalat
disputes have been registered at High Court
Commercial Division 4 and were granted a special
reference code. Prior to this, the dispute resolved in
High Court Commercial Division 4 was a mixture of
Islamic banking and other commercial cases.
The special Muamalat Court started its first
operations in February 2009. In terms of structure,
Muamalat Court was a part of the Commercial field
of Kuala Lumpur High Court and was formed to
handle all issues related to Islamic banking and
finance (Chen, 2017, p. 133-156).
The Muamalat Court was comprised of the first
level (original jurisdiction) and the same appeal
level (appeal jurisdiction) as High Court in Malaysia
in accordance with the provision of Act 91. In
addition to the authority, this court also had
specialization in handling Islamic banking and
finance disputes. It shall be referred to Sharia
Advisory Council of Central Bank of Malaysia in
accordance with the provision of Section 56 Act 701
(The Central Bank of Malaysia Act 2009).
The establishment of the Muamalat Court was
also a practical approach to resolve debates
regarding the appropriate authority of Sharia Court
and a proper forum to deal with disputes concerning
Islamic finance. Thus, the establishment of
Muamalat Court was the best resolution in the
meantime in Malaysia by giving a special authority
in Islamic banking and finance.
5 CONCLUSIONS
The development of Islamic banking industry in
Indonesia and Malaysia has experienced
constructive law dynamics. On the basis of
consistency in running the principles of Islam that
has been conducted operationally up to the
mechanism of dispute resolution, it became the
reason why the legal construction and reconstruction
process has been gradually implemented. The
different methods that have been used in Indonesia
and Malaysia in constructing the law of court
jurisdiction in resolving disputes of Islamic banks
show the advantages and disadvantages of both.
This comparison is important not only for both
countries but also for the other countries to improve
the Islamic banking dispute resolution system by
taking the effective method of legal construction.
Indonesia is more progressively reformed the law in
determining the religious court jurisdiction of the
settlement of the Islamic economic disputes than
Malaysia, that is why Indonesia have a more
consistent and coherent court structure to deal with
cases involving Islamic banking system disputes.
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