LAW STUDY OF SHARI’A BANKING DISPUTE SETTLING AUTHORITY (Islamic law analysis on the authority of Islamic Court, Common Court and National Arbitrary Body)

14 05 2009

Islamic Bank is a bank operated according to Islamic Shari’a Law principles or Interest-Free Bank, Lariba Bank, and Shari’a Bank. As conventional bank, shari’a bank is also operated by contract. A contract is a starting point or a law source of the shari’a banking operation in accordance with the requirements agreed by both parties. Beginning with the misperformance of one party leading to a dispute, although not all misperformance will create a dispute, but misperformance is the starting point of a dispute. So, the agreement related to the freedom of making contract in Islam plays an important role in shari’a banking. The right dispute settlement in shari’a banking will give satisfaction and bigger value of justice.

In Indonesia, dispute settlement in shari’a banking is regulated by Law no.30, 1999, about Arbitrary and Dispute Settlement Alternative: negotiation between the both parties or involving the National Shari’a Arbitrary Council. If negotiation and arbitrary do not work, the court is the last option. Law No.3, 2006 Chapter 49 about the change of the Law No.7, 1989 about Islamic Court and Law No.21, 2008 Chapter 55 Verse 1 & 2 about Shari’a Banking. The dispute settlement of the shari’a banking is optional, it means that the both parties are free to choose common court or Islamic court. What is the concept of the shari’a banking dispute settlement in Islam?

The study of the authority of the Islamic Court, Common Court and Arbitrary on the settlement of the dispute in the shari’a banking from Islamic law standpoint and its relation with the freedom of making contract, is a normative jurisdictional study, that is the study of examining normative jurisdiction from Islamic Law standpoint. The normative jurisdiction study could also be meant as a scientific research procedure to determine the truth based on the normative law logic.

The study concludes, that the Islamic court has the authority to settle the shari’a banking dispute from the Islamic law standpoint using these following steps: First, Reconciliation (al-Sulh); Second, Arbitrary (at-Tahkim) and the third, Court (al-Qodha). In Indonesia, there is no regulation on which court the shari’a banking dispute should be settled. Special court is needed (Islamic Court or Shari’a Commerce Court) to give better value of justice from Al-Qur’an and Al-Hadits standpoints. Meanwhile, the freedom of making contract according to Islamic Law means, that the freedom to choose which procedure or institution used for settling the shari’a banking dispute must be in accordance with the Islamic law.




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