Application Of Fatwa In Islamic Banking Cases In Indonesian Court

Abstract

Consumers of Islamic banking services generally expect that the operation of Islamic banking is in accordance with Islamic sharia, including matters involving the trials of banking cases in court. Therefore, this study is conducted to examine the extent of application of the DSN-MUI fatwa contained in OJK regulations in judges' decisions with regards to Islamic banking cases, as well as to examine the basis of judgment in decisions involving Islamic banking cases. In addition, this study also examines the implications of the judge's decision of not applying the fatwa on the development of Islamic banking in Indonesia. This study uses a qualitative approach involving court case documents as well as in-depth interviews with 12 respondents consisting of legal, banking, and Sharia experts. The findings of this study show that the basis used by Supreme Court judges in making decisions related to Islamic banking cases is guided by the achievement of legal purpose, i.e., by looking at the basis of justice, the basis of legal certainty, and the basis of legal usefulness. However, in the case of Islamic banking, there are two reasons for judges not applying the fatwa as contained in the OJK Regulation in court. The first reason is the substance of the law and the second reason is the legal structure in Indonesia. In order to strengthen Islamic Sharia law in the Indonesian legal system, the establishment of a Sharia economic institution and court system is necessary for ease of application and use of fatwas in addition to optimizing the opportunity to integrate the roles of OJK and DSN-MUI in the institution and court system.