Sharia Banking Law Reconstruction in Indonesia
Bustamar, Zainuddin and Aidil Alfin
Sharia Faculty of IAIN Bukittinggi
Jl. Paninjauan Garegeh Mandiangin Koto Selayan Bukittinggi, Indonesia
Keywords: Legal Development, Sharia Banking, Legal Reconstruction
Abstract: This article discusses the development and problematics of Sharia banking law in Indonesia and the urgency
of Islamic banking law reconstruction. The study was conducted by using an empirical normative method.
The research findings show that the regulation of sharia banking in Indonesia started from Law Number 7 of
1992, amended by Law Number 10 of 1998 and the latest Law Number 21 of 2008 concerning Sharia Banking.
Fundamental legal issues are the aqad formula, the aqad form, and the settlement of the sharia banking
disputes. Legal reconstruction is required to ensure the application of sharia principles in kaffah, both in
formulation and form of aqad, as well as in the settlement of sharia banking disputes.
1 INTRODUCTION
Stretching the rise of Islam in the early twentieth
century was identified as an attempt to position
modernization in the frame of Islam. In Huntington's
straightforward language, he is expressed as
acceptance of modernity, rejection of western culture,
and re-commitment to Islam as a comprehensive and
universal way of life in the modern world
(Huntington, 2001). Massively the rise of Islam is
accompanied by the symbolization of Islam in every
aspect of the life of Muslim society. In a variety
of literatures, this movement is known as
the Islamization movement in every aspect of life,
one of which is in the economic and banking fields
(Bustamar, 2011).
Discuss the Islamic financial system has begun
in Egypt since the 1960s (Triyanta, 2009). In the
1970s several Islamic countries had established banks
with the sharia system. The presence of Islamic banks
is supported by regulations made in the country
(Wibisono, 2009). The pioneering practice of sharia
banking in Indonesia actually started in the early
1980s, which was marked by discussions on Islamic
banks as the pillars of sharia economy that was held
through various forums by Islamic leaders, such as
Karnaen A Perwataatmadja, M. Dawam Rahardjo ,
AM. Saefuddin, M Amien Azis and so on (Aziz,
2001). This Islamic Bank is built based on three
philosophies of Islamic economic law, namely: God
(Allah), human and nature (Ridwan, 2016).
In formal juridical manner, the first sharia
banking institution in Indonesia was Bank Muamalat
Indonesia initiated by Majelis Ulama Indonesia
(MUI) in 1991 (Zulkifli at al., 2018) and effectively
operated in 1992 (Hasnita, 2012). The emergence of
this sharia bank then a positive response from the
government with the issuance of various regulations.
Started from the Legislation of Act Number 7 of 1992
concerning Banking, this Act served as the front gate
of bank operations with profit sharing system. This
law was then amended by Legislation Number 10 of
1998, explicitly mentions the term "bank based on
sharia principles" (Ridwan, 2016). Recently, Sharia
banking is regulated by Legislation Number 21 Year
2008. In addition to the regulation of the Act, the
National Sharia Council Fatwa (DSN) is also a
reference to provisions in Islamic banking
(Ramadhan, 2016).
The availability of adequate legal regulation is
very important considering the strategic role of sharia
banking as a part of the healthy national and dynamic
economic tools, therefore the regulation of sharia
banking should be developed in such a way that sharia
banking still exist in the dynamics of the development
that accompanies it.
The development of sharia banking law is done
within the framework of national law on three
1162
Bustamar, ., Zainuddin, . and Alfin, A.
Sharia Banking Law Reconstruction in Indonesia.
DOI: 10.5220/0009924211621168
In Proceedings of the 1st International Conference on Recent Innovations (ICRI 2018), pages 1162-1168
ISBN: 978-989-758-458-9
Copyright
c
 2020 by SCITEPRESS – Science and Technology Publications, Lda. All rights reserved

dimensions, namely the dimension of maintenance,
renewal, and refinement, (Ali, 1997) and by fulfilling
the four foundations of philosophical, sociological,
juridical and political. First, the philosophical
foundation contains moral or ethical values that
contain truth, justice, moral and other good values.
Secondly, the sociological foundation; that the law
should describe the common beliefs or legal
consciousness of society. The law is born and formed
in accordance with the living law in society, not just
record the state instantaneously (moment opname).
Third, the juridical foundation is the legal basis on
which the legislation is established. Fourthly, the
political foundation is a political policy that becomes
the next basis for the policy and management of state
government (Ridwan, 2016).
Borrowing Roscou Pound's thoughts on "law as
a tool of social engineering," which Mochtar
Kusumaatmadja developed in the law concept as a
"means" of renewal of society in Indonesia through
legislation (Nurani, 2009). According to Sunaryati
Hartono, it is carried out through the improvement
and development of law which covers the following
four things: (Hartono, 1991)
a) perfect (make something better)
b) change to be better and more modern.
c) hold something that hasn't existed before, or
d) eliminate
something in the old system,
because it is not
necessary and does not
match the new system.
This paper aims to track the development of law,
legal problems, and legal reconstruction efforts in
sharia banking that should be done. This discussion is
conducted by
an empirical normative method in order
to see the normative aspect of Islamic banking, legal
prolematics in the socio-political configuration, then
proceeded to illustrate the crucial matters relating the
reconstruction of sharia banking law as a solution.
2 METHOD
This paper will attempt to track the development
of sharia banking law, its legal problems, and legal
reconstruction efforts that should be carried out with
a normative empirical qualitative method. Through
this method, it will be seen the normative aspects of
sharia banking, it's legal problematic in the midst of a
vortex of socio-political configuration that
accompanied it, then continued by describing crucial
things to get attention in the reconstruction of sharia
banking law as a solution. Data is obtained through
sharia banking dispute cases who entered the
Bukittinggi Religion Court, contract documents at
Islamic banks and journals that supported this
research.
3 FINDING AND DISCUSSION
3.1 The Development of Sharia
Banking Law
Basically, sharia bank entities in Indonesia have
been started since 1983 through December Package
1983 (Pakdes 83) which contains a number of
regulations in the banking sector, one of which is a
rule that allows banks to give credit with 0% interest
(zero interest). Pakdes 83 was followed by the
October 1988 Package (Pakto 88) as a banking
deregulation that facilitated the establishment of new
banks, thus the banking industry experienced rapid
growth. (Djumhana, 2003)
The regulation on sharia banking in Indonesia
was first established in Law Number. 7 of 1992
entered into force on March 25, 1992 (State Gazette
of the Republic of Indonesia Number. 31 of 1992, a
upplement to the State Gazette of Number 3472),
which supersedes Law Number. 14 of 1967
Concerning the Principles of Banking.(Zulkifli at al.,
2018)
Substantially, this act focuses on regulating
conventional bank more that sharia bank. The word
'syaria bank' is not mentioned explicitly. This law
only states that banks may operate on the basis of
profit sharing. (Article 1 point 12 & Article 6 letter m
Law no. 7 of 1992) The absence of the word 'shari'ah'
or 'Islam' explicitly in this law is caused by the
unconducive political situation, after all, the
government at that time was still 'allergic 'with the
word' shariah 'or' Islam '. (Sutan Remy, 2015) Law
Number. 7 of 1992 is equipped with Government
Regulation (PP) Number. 72 Year 1992 Concerning
Bank Based on Profit Sharing Principle. Meanwhile,
some Muslims do not want to accept banks that use
the interest system (Anshori,2008). In addition, there
is also a debate about the presence of sharia banking
regulations in Indonesia, because this is inseparable
from the politics of law in Indonesia. More than that
there are regions that do not want to accept the
presence of Islamic banks such as Bali with the
Pancasila economy already sufficiently applied in
Indonesia. Which is based on one religion (Yasin,
2016).
Despite the fact that there are insufficient
regulations regarding Islamic banking in Law No. 7
of 1992, this regulation must be applied as part of the
New Order government's policy support for the
Sharia Banking Law Reconstruction in Indonesia
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presence of the concept of dual system banking in
Indonesia.
Law Number 7 Year 1992 was amended by Law
Number 10 Year 1998. In this Law, the existence of
Sharia Banking becomes more assertive and more
complete (exhaustive), more detailed legal basis and
types of businesses that can be implemented and
implemented by Islamic banks. Law Number. 10 of
1998 expressly uses the word sharia bank and clearly
stipulates that banks, both commercial and rural, can
operate finance based on sharia principles. (see
Article 1 point 12, Article 7 letter c, Article 8
paragraph (1 & 2), Article 11 paragraph (1) & (4a),
Article 13, Article 29 paragraph (3) and Article 37
paragraph (1) letter c ).
This law also provides a legal basis for the
permissibility of conventional banks to perform their
activities based on sharia principles in accordance
with sub-branch he provision of branch or sub-brance
offices by Bank Indonesia. (Article 6 Sub-Article m
of Law no. 10 Year 1998 About Banking) While
Rural Bank is still not allowed to run activities in
conventional and sharia simultaneously. Another
important aspect regulated in this Act is the granting
of authority for BI to supervise and the issue
regulations concerning sharia banks. Previously, this
authority was in the power of the finance ministry.
After 10 Years of Sharia Banking arranged
together in one law with conventional banking, In
2008 sharia banking has its own law with the
enactment of Law Number. 21 of 2008 on Sharia
Banking dated July 16, 2008. This law consists of 13
chapters and 70 articles. New aspects of this law are
related to corporate governance, prudential
principles, risk management, dispute resolution,
fatwa authority and sharia banking committees as
well as sharia banking development and supervision.
Bank Indonesia has a role to play in supervising and
regulating sharia banking in Indonesia, but in line
with the enactment of Law No. 21 of 2011, the
authority of supervising and move arrangement
becomes the duty and authority of the Financial
Services Authority (OJK). The presence of the
Islamic Banking Law has responded to the sense of
justice of Muslim communities in Indonesia. Besides
that this Act also responds to Law No.3 of 2006
concerning Religious Courts which gives authority to
the Religious Courts to resolve sharia economic
disputes (Mansyur, 2011).
Looking at the development of sharia banking
regulations above, it can be seen that at least the
existence of Islamic banking in Indonesia has gone
through three stages, namely the introduction stage of
"introduction" which is marked by the enactment of
Law No. 7 of 1992, the "recognition stage" which was
marked by the enactment of Law No. 10 of 1998, and
the "stages of purification" marked by the
promulgation of Law No. 21 of 2008 (Wirdyaningsih,
et al., 2005).
3.2 Problems of Sharia Banking Law
There are at least three fundamental legal issues
experienced by sharia economic institutions in
general and sharia banking in particular. Two of them
are related to aqad, the formulation of aqad and aqad
making, while the third is the problem of dispute
resolution of sharia banking.
According to Abdul Ghani Abdullah in the
matter of contract formulation, in the field, banks and
Islamic financial institutions do not have a standard
contract format. In practice, many sharia banks do not
consistently apply sharia engagements. "The most
common, initially murabaha contract, then turned
into ordinary contracts, both sale and purchase or
debt" (Abdullah, 2016). The inconsistency of the
form and implementation of this contract raises
disagreements about the murabaha ability in Islamic
financial institutions, because on the one hand the
practice of the contract is considered an excuse to
avoid interest. In addition, each Islamic financial
institution makes a contract in its own format which
sometimes seems to have no negotiation because it is
determined unilaterally (Arifa, at.al., 2018).
The second problem is that there is still no clarity
regarding the creation of sharia contract: whether it
should be notarial or just like an agreement in
insurance between the insurer and the insured. "There
should be standardization of contract formula, both
aqad format and aqad form (Abdullah, 2016). The
role of the notary in the making of sharia contracts is
very necessary in order to strengthen the treaty law in
sharia banking institutions such as contract aqad and
guarantee bindings.( Deni K. Yusup, 2017)
Aqad in sharia banking activities is certainly not
just an agreement between the parties whose
agreement becomes their achievements and
responsibility, but the contract is basically a part of a
legal relationship in the making and implementation,
not only will be accountable to the party horizontally,
also to God Almighty vertically. Therefore, the rules
of the contract must come from the Qur'an and Hadith
or the interpretation of the ulama against these two
sources (Yulianti, 2008), and follow the principle of
muamalah which, is extracted from its equivalents
such as: skill, justice, truth, willingness, efficacy, no
usury (Aryanti, 2017), no element of gambling
(maisir), not speculation (gharar), and does not
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contain anything harmful (dharar). (Zainuddin, at. al.,
2017)
All legally constituted contracts act as sharia
nash for those who hold contracts. A contract is not
only binding for the things expressly stated therein,
but also for everything according to the nature of the
contract required by the propriety, custom, and sharia
nash.( Article 44 and 45 of the Compilation of Islamic
Economic Laws)
Since aqad holds an important role in sharia
banking activities, it is reasonable to formulate aqad
strictly regulated, so that there is a clear standard
format so that the principle of certainty and simplicity
of law can be realized. Likewise, with the creation of
aqad, the regulation should strictly regulate whether
aqad should be made notarially or only as an
agreement in insurance between the insurer and the
insured. But if it is connected with the power of deed
Notarial deed is stronger because of its position as an
authentic deed. An authentic deed gives the parties
and their heirs or those who are entitled to them, a
perfect proof of what is contained therein.( Article
1870 of the Civil Code (BW))
The third problem is about dispute resolution.
Currently, there are many options to resolve sharia
economic dispute. Broadly speaking, the choice is
divided into two, namely the Non-litigation path and
litigation path. The Non-litigation path is not only the
National Shariah Arbitration Board (Basyarnas), but
it can also be through other alternatives out of court.
While the litigation path can be pursued through
Religious Courts and general courts (Article 1870 of
the Civil Code (BW).
On the other hand, the existence of dualism of
dispute settlement becomes a separate legal issue in
the regulation of sharia banking. In conducting the
activities of sharia banking, it does not rule out the
occurrence of a dispute or dispute between the parties
concerned. Disputes are unwanted circumstances by
every reasonable person of his mind (Sutiyoso, 2012).
The provisions of sharia banking dispute
resolution are regulated are regulated in Article 55
paragraph (1) that Settlement of Sharia Banking
disputes shall be conducted by courts within the
Religious Courts. However, in the clause of
paragraph (2) of this Article, it is stated that "In the
event that the parties have agreed to settle the dispute
other than as intended in paragraph (1), the dispute
settlement shall be conducted in accordance with the
contents of the Agreement. Furthermore, in paragraph
(3), the settlement of disputes as referred to paragraph
(2) shall not be contrary to Sharia Principles.
The explanation of paragraph (2) is deleted by
Decision of the Constitutional Court Number 93 /
PUU-X / 2012. What is meant by "settlement of
disputes carried out in line with the contents of the
Agreement" is the following efforts:
a) discussion;
b) banking mediation;
c) through the National Sharia Arbitration
Board (Basyarnas) or other arbitration
institutions; and / or
d) through a court within the General Courts.
The settlement rules aboveopen the opportunity
to choose the law and forum of dispute of dispute
resolution of sharia banking, the subtlety of Article 55
paragraph (2) provides the freedom for parties to
agree on the settlement of disputes outside religious
court. Although in the provisions of Religious
Judicial Law Number. 3 of 2006 stated that the sharia
economic dispute became the absolute competence of
PA, but in reality, very few parties are willing to bring
their sharia economic case to the Religious Court.
One example is the almurabahah financing aqad at
Bukittinggi Branch No. 1 Bank Syariah Mandiri. 01
December 03, 2013. At that time, it was made and
signed by the parties in front of the Notary Cahaya
Masita, SH., M.Kn. It was agreed that the settlement
of disputes was carried out by compromise, but if the
compromise was not successful, the parties agreed
that the settlement was held in the Bukittinggi
District Court, not a religious court as regulated in
Law No. 3 of 2006. Of course, this is also triggered
by the opportunities provided by the regulation of
Islamic banking itself.
3.3 Reconstruction of Sharia Banking
Law
Based on the three fundamental issues above, the
effort of reconstruction of sharia banking law through
State intervention, in this case, is absolutely
necessary. The presence of the state in the context of
the reconstruction of sharia banking law is based on
the idea that the state is the embodiment of people’s
will who can be a source of glue to the diversity of
people's aspirations. With its regulative authority, the
state is able to portray itself as a guarantor for the
upholding of community justice in exercising its
rights and obligations fairly (Ridwan, 2016).
According to Abdul Shomad, the life of the
banking products is financing because that is the
wheel of life of the banking world, as well as sharia
banking which also rely on its financing products in
order to still exist. In the financing product,
agreement contract is the most important key,
because the financing can only be implemented if
there is an underlying contract, in other words without
Sharia Banking Law Reconstruction in Indonesia
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any financing contract it will not be able to run
properly (Shomad,2003).
Therefore, the reconstruction of sharia contract
agreement is very necessary, considering the purity of
sharia banking has been damaged by certain things
that no longer in line with the the Qur'an and al-
Hadith and the ijtihad of the Islamic Jurists In
addition, the sharia contract should have a spirit of
preservation of religion, life, mind and property, and
descent, since these matters are dharuri part of Islam,
therefore the covenant must be based on the Quran
and Sunnah of the principle of contractual fairness,
social justice and permissibility must be contained in
the contract, (Shomad, 2003) not just wrapped with
shariah bundle when its content is contrary to the
teachings of sharia. Aqad should be made in the form
of a notarial deed to be stronger and have legal
certainty.
On the other hand, Shariah Aqad basically
contains three principles of Contractual Fairness,
Social Justice and Permissibility or ibahah (Kamali,
1989), Therefore, it needs a thinking for making
sharia bank contracts are genuinely sharia, not only
wrapped in sharia, in this case, it needs political will
and government political action as regulator.
It is similar with the legal provisions of Islamic
banking dispute settlement. The settlement of sharia
banking disputes has its own characteristics because
in general the dispute arises due to differences in
interpreting the aqad of shariah and breach of
contract dispute. The provisions concerning choice of
forum of sharia economic settlement shall be
reinforced by the imposition of Article 55 paragraph
(1) of Law Number. For the sake of the establishment
of sharia principles in kaffah, according to the opinion
of the author of paragraph (2) of this Article is not
necessary because of the potential to weaken the
existence of paragraph (1), besides Article 49 letter i
Law Number. 3 of 2006 has stipulated that the
settlement of sharia economic dispute is the absolute
competence of Religious Courts. According to Abdul
Gani Abdullah "What must be understood is that
religious courts do not seek sharia economic matters,
but are authorized by law," Law No. 3/2006 and Law
No. 50/2009 (Abdullah, 2016).
On the other hand, the reconstruction of sharia
financing law settlement law must also be
accompanied by legal material construction which
can be guided by Religious Judges in examining
sharia economic dispute. The existence of Perma
Number 2 Year 2008 on the Compilation of Sharia
Economic Law (KHES) needs to upgrade its legal
status to a higher form of legislation. According to
Friska Silvia Raden Roro, even though the judges in
the syaria eco-dispute ruling (7 of 9 cases studied)
have guided KHES as the material basis of its verdict,
it should be noted that KHES does not exclude the
Civil Code as a source of conventional civil law,
confusion between sharia economic law which is a
representation of divine revelation and sunnah Rasul
and the result of ijtihad of ulama with civil law BW
which tend to secular (Roro, 2017).
The crucial law reconciliation is the law of
dispute settlement of sharia economy. The
availability of a formal legal code for the settlement
of a sharia economic dispute is certainly a defining
pillar for the realization of fair judicial decisions.
Even though the Supreme Court has issued
Perma Number 14 Year 2016 Concerning the
Procedure of Sharia Economic Dispute Settlement
dated December 22, 2016, but when there are
indications that some things are Non-compliance
Sharia (Non Shariah Compliance) (Roro, 2017),
including: First, Perma is still subject to colonial
inheritance economic law namely the Herzein
Inlandsch Reglement, abbreviated as HIR, in the form
of procedural law in civil or criminal proceedings
prevailing in Java and Madura (staatblad) Number 16
Year 1848. Of course, the dispute of sharia economic
is no longer guided by the law of colonial inheritance.
Secondly, there is no detailed and sharia regulation
about the failure in contract implementation (breach
of contract) which causes the delay payment of
obligations. Thirdly, there is no rule about the process
of bankruptcy handling, so it cannot be used for taflis
(bankruptcy) problem handling, hence the
determination of bankruptcy of sharia economic
institution is still the authority of the Commercial
Court and has not become the authority of the
Religious Courts. According to Friska this will have
a systemic impact on the disparity of the decision on
the Court in particular, and the submission of the
procedural law in general (Roro, 2017).
4 CONCLUSION
From the explanation above, it can be concluded as
follows:
1. The development of sharia banking law in
Indonesia begins with Law Number 7 of 1992
on Banking, then amended by Law Number 10
of 1998 on Amendment of Law Number 7 of
1992, and the last by Law Number. 21 of 2008
concerning Sharia Banking.
2. There are three fundamental problems of shariah
banking law, namely the aqad formula of syaria
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banking, aqad form, and dispute resolution of
sharia banking.
3. Construction of sharia banking law should be
done in order to overcome various obstacles
faced by sharia banking The legal provisions on
aqad fomulation, aqad form and dispute
resolution of sharia banking, whether related to
material law and formal law must be
reconstructed properly to avoid the dualism of
rules law and security of the kaffah (totally)
adherence to the principles of shariah.
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