ANALISIS TERHADAP PUTUSAN MAHKAMAH KONSTITUSI NO.

93/PUU-X/2012
TENTANG PENYELESAIAN SENGKETA PERBANKAN SYARIAH DI INDONESIA
Abstract
The result of the research showed about , The constitutional court in its decisions based
on article No.93/PUU-X/2012 only consent to a apart of it by stating the axplanation article
55,paragraph 2 of law NO.21/2008 on Sharia Banking is contrary 1945 constitution and non
binding. Afterwards regarding to legal consequens after the decisions based on article
No.93/PUU-X/2012 is the selection of the dispute settlement forum in non litigation which is not
only found in the explanation of artlice 55, paragraph 2 of law NO.21/2008 on Sharia Banking
but also used in settling the dispute such as consultation, negotiation,reconciliation, non banking
mediation,experts opinion, and so on, As long as it is agreed by conflicting parties. The
authority of district court in hearing Sharia Banking dispute is declared void.
The last is religious court is actually prepared in settling sharia bangking dispute since
has preparedness in legal provisions and regulations in supporting the decisions . the religious
administrative of justice , Bank Indonesia , supreme court and judicial commission consistenly
perform regular training , either domestically or abroad for the judges of religious court
throughout indonesia in order to improve the quality of religious court judges in understanding
sharia jurisprudence ,economy and the execution of religious court’s the decision. Based on
artcle 55 of law NO.21/2008 , On Sharia Banking should be revised so there will be no
overlapping authority which causes legal uncertainty. Those who are involved in sharia banking,
sharia banks, clients, and notaries who make sharia financial deeds should select and use
Religious Court as the settlement forum when there is the dispute after there is no agreement
after negotiation has been held between the conflicting parties.

LATAR BELAKANG/PENDAHULUAN
Perkembangan perbankan syariah yang pesat sejak tahun 1999 merupakan hasil dari
dukungan regulasi yang memadai yaitu Undang-Undang No 10 Tahun 1998 tentang Perubahan
Undang-Undang Nomor 7 Tahun 1992 dan Undang-Undang No 23 Tahun 1999 tentang Bank
Indonesia yang diperkuat oleh Undang-Undang No 3 Tahun 2004.
Sejak tanggal 16 Juli 2008, industry perbankan syariah Indonesia secara resmi memasuki
era baru sehingga Indonesia telah resmi memiliki regulasi perbankan syariah yaitu Undang-
Undang No 21 Tahun 2008 tentang Perbankan Syariah.
Pada Tahun 2012 terjadi permohonan uji materil pada Pasal 55 ayat 2 dan 3 UU No. 21
Tahun 2008 tentang Perbankan Syariah terhadap Pasal 28 ayat 1 UUD 1945 ke Mahkamah
Konstitusi yang dilakukan oleh Dadang Achmad.
Penjelasan Pasal 55 ayat 2 dan 3 menimbulkan ketidakpastian hukum yang memunculkan
mekanisme penyelesaian sengketa apabila terjadi sengketa
CONCLUSION
1. Considerations of the constitutional court judges through decision No.93/PUU-X/2012
are : The First, paragraph (2) of Law no.21 of 2008 concerning Sharis Banking is
contrary to the 1945 Constitution and does not have binding legal force and secondly, the
constitutional court affirms the authority of the religious court as mandated in article 55
paragraph (1) of the Sharia Banking law and article letter 49 letter (i) of the law no. 3 of
2006 concerning changes to law no. 7of 1989 concerning religious courts concerning
litigation dispute resolution.

2. The legal consequences arising after the issuance of the constitutional court decision
No.93 /PUU-X/2012 are : The First the choice of alternative dispute resolution forums is
no longer limited to those contained in the explanation of article 55 paragraph (2) of the
Islamic banking law that is, deliberation ,banking mediation,basyarnas and also courts in
the general court environment and there are still other non-litigation settlement forums
that can also be used as long as agreed by the parties such as
consulation,negotiation,conciliation,non-banking mediation,opinion or assessment expert,
and so on. Secondly,in particular the authority of the district court in adjudicating Islamic
banking disputes cannot be used anymore, but for basyarnas it can still be used as long as
agreed by the parties.

3. The religious courts are actually very ready in resolving Islamic banking disputes. This is
evidenced by : The first,the readiness of laws and regulations that have supported
religious justice. Secondly,the consistency of the religious courts Board,Bank
Indonesia,the supreme Court and the Judicial Commision in conducting regular and
periodic training both domestically and abroad to religious court judges throughout
Indonesia to improve understanding of Islamic law and economics. Third, regarding the
execution of decisions in the religious court, the parties need not worry because the
regilious court also hasthe power/authority which is : just like a district court in carrying
out he execution of the decision, both through the bailiffs themselves and using assistance
from other parties such as the police.

SUGGESTIONS

1. It is recommended that in the event of a Sharia banking dispute that cannot be

resolved through deliberation,the next forum for resolution is through the religious
court as determined by article 55 paragraph (1) of Law No.21 on Sharing Banking,
therefore to the public. Especially those who are muslim in order to use the religious
courts in resolving Islamic economics disputes and need to do a through
socialiazation of both supporting regulation such as the fatwa of the Indonesia Ulema
Council (MUI) which previously directed Sharia banking dispute resolution to the
 basyarnas settlement forum as well to the parties involved in the scope of Islamic
banking starting from the Islamic bank it self ,the customers, and also the notary who
made the Islamic financing deed to choose and place the religious court as the
primary choice for a settlement forum in the event of a dispute after not achieving
agreed through deliberation in advance.

2. It is recommended to parties who wish to use alternative dispute resolution forums

(non-litigation) so that they no longer shoose a court in the general court environment
(District Court) because it contradicts article 25 of Law No. 48 of 2009 concerning
Judicial Power, the parties can still use Basyarnas and can also choose other non-
litigation settlement forums sech as consultation,negotiation
(negotiation),conciliation,non-banking mediation, opinions or expert judgment,and so
on,because in addition to the fast process and in terms of cost, the non-litigation path
is also cheaper than the litigation path which will cost more and take a long process.

3. It is recomemmended to the directorate general of the religious courts (Badilag) as

authorized to conduct religious justice development in Indonesia to continue to
improve the quality of religious court judges in understanding and handling sharia
banking disputes and also immediately issuing Sharia special economic procedural
law,syariah banking secrecy settlement is still guided by the general civil procedural
law where the general civil procedural law has not been able to answer all the needs
of sharia banking cases,then the Badilag must also strengthen the authority of the
execution instutions in the religious court so that the parties can directly submit
request for execution of decisions of religious courts through the religious courts
themselves so that they no longer have to use the execution institutions in district
courts.