The Litigation Aspects in Solving Banking Disputes in the Sharia Sector

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