The Norm Reconstruction of Verdict Execution of the National Sharia Arbitration Board to Sharia Economic Dispute in Indonesia

Abstract

Within the growth of sharia economic in Indonesia, a dualism of the sharia economic dispute settlement occurred along with the emergence of the disputes. According to Law No. 3 of 2006 on the Amendment of Law No. 7 of 1989 on the Religious Court, Law No. 21 of 2008 on Sharia Banking, and The Constitutional Court Decision No. 93/Puu-X/2012 declares that sharia economic dispute settlement is within the authority of the Religious Court. Meanwhile, according to Law No. 50 of 2009 on the Judicial Power, The execution of the National Sharia Arbitration Board (Basyarnas) verdict as part of sharia economic dispute settlement in Indonesia is the General Court’s authority. The Law that is overlapped indicates a conflict of norms on the Basyarnas verdict execution in which the philosophical, juridical, and sociological weakness, and the vague legal purposes occurred. Therefore, a reconstruction of norm on the Basyarnas verdict execution is needed.This paper examines three issues. First, why did the Article 59 Law No. 48 of 2009 is used as a reference for the Basyarnas verdict execution but the Article 49 Law No. 3 of 2006 and Article 55 Law No. 21 of 2008 are neglected. Second, was the norm of the Basyarnas verdict execution in accordance with the legal purposes. Third, how did the principles of the Basyarnas verdict execution influence sharia economic disputes in Indonesia.The method used in this study is a normative legal research using legislational, conceptual, philosophical, and comparative law approach. So, several findings are found. First, the use of Article 59 Law No. 48 of 2009 on the Judicial Power and the neglect of Article 49 Law No. 3 of 2006 on the Amendment of Law No. 7 of 1989 on the Religious Court and Article 55 Law No. 21 of 2008 on Sharia Banking as a reference for the Basyarnas verdict execution is based on philosophical, historical, political, and juridical argument. Second, the norm of the Basyarnas verdict execution relevance with the legal purpose is vague, as associated with justice, legal certainty and benefits aspects. Third, there are two legal principles to resolve conflicts on norms of the Basyarnas verdict execution, namely (a) the principle of consistency, and (b) the principle of the obligatory to avoid authoritarianism of the elite positive norm.

Keywords: Basyarnas Verdict Execution, Conflict of Norm, Reconstruction