Implementation of Small Claim Procedure in Settlement of Sharia
Capital Market Dispute: An Effort to Create Legal Certainty and Its
Challenges
Ema Rahmawati, Man S. Sastrawidjaja, Efa Laela Fakhriah and Lastuti Abubakar
Faculty of Law, Universitas Padjadjaran, Bandung, Indonesia
Keywords: small claim procedure, sharia capital market, dispute.
Abstract: Capital market is an alternative of financing and investment. Indonesia acknowledges sharia capital market
as a part of general capital market system. If the civil claim arising out from the sharia transaction, dispute
can be settled in several procedures, i.e. through the Religion Court or ADR. Capital market litigation is
rarely found in practise due to several reasons: the formalistic of the procedures, indefinite period and the
complexity of issues. Since the competency of Religion Court to examine sharia economic dispute is
relatively new, the Supreme Court then issued Regulation No. 14 Year of 2016. Accordingly, the sharia
economic dispute can be examined through regular procedure or through small claim procedure (SCP). SCP
known as a simple examination provides a simple, prompt and low-cost procedure and legal certainty,
however its implementation in sharia capital market dispute might be different with the other economic
sharia dispute and it is important to be analyzes. This article will describe the implementation of SCP in
Religion Court, especially in examining sharia capital market [civil] dispute. It will also elaborate the
analysis of advantage and disadvantage in implementing SCP in sharia capital market [civil] dispute, the
challenge faced by the Religion Court.
1 INTRODUCTION
Due to the borderless human relation over the
world, economic transaction is unavoidable.
Economic transaction in a form of investment or
financing has growth rapidly over the years. Both
investment and financing has contributed to the
development of countries, including Indonesia. One
of the vessel in development of the investment and
financing is known as capital market.
In its expansion, investment proceeds at a rapid
rate and the capital stock grows quickly. But rapid
capital growth means that the amount of capital per
hour of labour is growing. Equipped with more
capital, labour become more productive. But the law
of diminishing returns begins to operate (Douglas
Mc Taggart (et.al), 2006). Thus, demonstrates the
economic principle is strongly dominates capital
market.
Although the capital market in Indonesia cannot
be classified as the main economic indicator, but
several facts have demonstrated the importance of
Indonesian capital market for the country’s
development. Positive performance occurs in the
domestic capital market. On the stock market, the
Composite Stock Price Index (CSPI) of the
Indonesia Stock Exchange showed an upward trend,
despite interspersed with some good turmoil arising
from the external and domestic environment. In the
range of 2004-2014, the JCI recorded a growth of
423%. Likewise, the IDMA Bond Index as an
indicator of developments in market prices of
Government Securities (SBN), has shown a stronger
movement with yields on SBN that are quite
attractive to investors. The number of companies
that utilize the stock market as a source of funding
also continues to increase, with the value of the
stock market capitalization that continues to grow.
Nevertheless, the outstanding value of corporate
debt continues to increase (FSA/OJK, 2015). Capital
market is expected to support banking system due to
the reason that capital market can provides short
term financing that banking can not provide.
Pursuant to its regulation, Law Number 8 of
1995 regarding Capital Market ("Capital Market
Law") defines formally the capital market as "the
activity concerned with the Public Offering and
Trading of Securities, Public Companies relating to
the issued Securities, as well as institutions and
Rahmawati, E., Sastrawidjaja, M., Fakhriah, E. and Abubakar, L.
Implementation of Small Claim Procedure in Settlement of Sharia Capital Market Dispute: An Effort to Create Legal Certainty and Its Challenges.
DOI: 10.5220/0009922910671074
In Proceedings of the 1st International Conference on Recent Innovations (ICRI 2018), pages 1067-1074
ISBN: 978-989-758-458-9
Copyright
c
 2020 by SCITEPRESS – Science and Technology Publications, Lda. All rights reserved
1067

professions that related to Securities.” The capital
market itself is a market for a variety of long-term
financial instruments that tradeable, such as notes
(bonds), equities (stocks), mutual funds, derivative
instruments and other instruments. The capital
market is a funding facility for companies and other
institutions (for example government, private sector
and others) and as a means of investing activities.
Thus, the capital market provides various means and
infrastructure of buying and selling activities and
other related activities. Financial instruments traded
in the capital market are long-term instruments (a
period of more than 1 year) such as stocks, bonds,
warrants, rights, mutual funds, and various
derivative instruments such as options, futures, and
others (IDX, 2018).
In its development, Indonesian capital market also
acknowledges sharia capital market as the part of the
general capital market system. Both Sharia capital
market system and conventional capital market
system are not distinctly separated, since currently,
both are governed by the same umbrella regulation,
namely Capital Market Law. Sharia capital market is
an activity in the capital market as regulated in the
Capital Market Law which does not conflict with
sharia principles. Thus, the Islamic capital market is
not a system separated from the general capital
market system. The sharia capital market is basically
not different from the conventional capital markets,
but there are some special characteristics of the
sharia capital market in applying the sharia
principles over its products and transaction.
Indonesian sharia capital market has growth in the
last two decades, as of the first issuance of Sharia
Reksadana in 1997. Since then, many sharia product
has launched and broader community pay more
attention to the sharia capital market (FSA MPPMS,
2015). In connection with the development plan of
sharia capital market, the legal system shall be
strengthened, both in material and formal laws. In
the context of formal law, the law enforcement shall
also be conducted in the event of dispute is occurred,
and it shall be resolved through dispute settlement.
As the consequence of its high risk and high return
characteristic, capital market is potentially arising
many legal disputes. If the civil claim arising from
the sharia transaction basis, such dispute can be
settled in several procedures, i.e. through the
Religion Court or through alternative dispute
settlement body. The Religion Court is entitled to
examine and render decision in respect of sharia
economic dispute. Up to this moment, capital market
civil claim through court is rarely found due to
several reasons, including the formalistic of the
procedures, indefinite period and the complexity of
issues filed by the party. Since the competence of
Religion Court to examine sharia economic dispute
is relatively new, the Supreme Court then issued an
implementing regulation, namely, Regulation No. 14
Year of 2016 regarding Settlement Procedures of
Sharia Economic Dispute. Under such Supreme
Court Regulation, the sharia economic dispute can
be examined through regular procedure or through
small claim procedure. The small claim procedure
known as a simple examination which provides a
simple, prompt and low-cost procedure in order to
obtain legal certainty for the disputing party,
however the implementation of such small claim
procedure in sharia capital market dispute might be a
little bit different if it compares to the other type of
economic sharia dispute and this is important to be
analyzes in serving an ease of doing business for
relevant parties and creating legal certainty in capital
market.
Accordingly, this article will describe several
issues regarding the implementation of small claim
procedure in Religion Court, especially in examining
sharia capital market [civil] dispute. Further, it will
also elaborate the analysis of advantage and
disadvantage in implementing the small claim
procedure in sharia capital market [civil] dispute,
including the challenge faced by the Religion Court
in create legal certainty.
2 IMPLEMENTATION OF SMALL
CLAIM PROCEDURE IN
EXAMINING SHARIA CAPITAL
MARKET [CIVIL] DISPUTE
Islam is Rahmatan lil’alamiin, which means
Islam is grace for all human, hence every principle
in Islam provides benefit for human. Guidance of
human relation named as muamallah, including in
economic activity. Investment as one of the form of
muamalah is very useful since it will bring high
capital gain. Capital market provides investment and
financing with high risk and high return. That is the
reason why capital market shall be perfectly
regulated. In the frame work of sharia capital
market, the comprehensive regulation shall be
applied, both basic sharia principle/laws and national
laws.
The application of sharia principles in the capital
market certainly originated from the Qur'an as the
highest source of law and the Haditsh of the Prophet
Muhammad. Furthermore, from these two sources of
law the ulamas conducted interpretations which
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were later called jurisprudence. One of the
discussions in jurisprudence is the discussion of
muamalah, which is the relationship between people
related to commerce. Based on that the Islamic
capital market activities are developed on the basis
of muamalah fiqh. There is a rule of muamalah fiqh
which states that basically, all forms of muamalah
may be carried out unless there is an argument
which prohibits it. This concept is the principle of
the Islamic capital market in Indonesia (IDX, 2018).
As an important Islamic Financial System, Islamic
Capital Market has witness a tremendous growth the
recent years. Basically, Islamic equity and SUKUK
together made up commodities being traded in
Islamic Capital Market. (Ahmad, Maiyaki, Yussof in
Ahmad Maudu Maiyaki, 2013).
Indonesian Sharia capital market recognizes
several sharia instrument, as follows: debt
instrument (mudharabah sharia bonds/SUKUK),
equity instrument (shares), and other instrument
(sharia reksadana, sharia exchange traded fund, EBA
Sharia, DIRE sharia). Sharia capital market shall be
conducted in accordance with the sharia principle in
capital market. Pursuant to Article 1 point 2 of FSA
Regulation No. 14/POJK.04/2015 regarding the
Application of Sharia Principle in Capital Market,
sharia principle in capital market is Islamic sharia
principle in activity of sharia capital market pursuant
to Fatwa of Dewan Syariah Nasional-Majelis Ulama
Indonesia, save as, that such Fatwa is not contravene
with such FSA Regulation and/or other FSA
Regulation based on Fatwa of Dewan Syariah
Nasional-Majelis Ulama Indonesia.General
Description of Sharia Capital Market.
2.1 General Review of Capital Market
[Civil] Dispute
As mentioned earlier, capital market is full of risk,
including financial and legal dispute risk. In
preventing both risk, the party in capital market
firstly applying risk management system, but
somehow in several cases, it cannot prevent the
occurrence of breach of law. Capital Market Law
stipulates the breach of law in capital market are:
administrative law, penal or criminal and civil law.
If the legal system in capital market running well
then no party will be threatened, but if the breach of
law is occurred, then it might threat other party, this
situation called as legal dispute. In order to maintain
legal certainty, legal dispute shall be legally settled.
The capital market is a complex activity which is
full of legal and economic (business) aspects, and
therefore capital market shall be highly regulated.
Although the role of the capital market towards
development is relevant, the legal dispute among the
parties is potentially occurred. This is a special
concern for business law practitioners and legal
academics.
There are various criticisms of dispute resolution
in the capital market, which are generally based on
the argument that there is no case in the capital
market that has been resolved through the court, the
indefinite long term and protracted process are some
of the reasons, as well as argument that the
Indonesian capital market is relatively new (Jusuf
Anwar, 2005). This clearly needs an improvement to
create legal certainty in law enforcement in
accordance with capital market objectives, whereas
to maintain a fair, orderly and efficient capital
market. The gap between the law in stipulation and
the law in reality shall be reduced.
A dispute is a conflict between rights and
obligations that must be resolved to restore the
situation to normal conditions, which is one of the
dispute resolution functions. In relation to the sharia
capital market dispute, following are the available
remedies that can be elected by disputed parties: 1.
Litigation, through regular formal procedure as
stipulated by Indonesian Civil Procedure, or small
claim procedure as stipulated by SCR No. 14/2016
jo. with SC Regulation No. 2 Year of 2015 re: Small
Claim Procedure (“SCR No.2/2015”), 2. Alternative
dispute resolution as Law No. 30 Year of 1999 jo.
Regulation of FAS (OJK) No. 1 Year of 2014 re:
Alternative Dispute Resolution Body (“RFAS
1/2014”) and other relevant regulation.
The formal procedure in settling the dispute
called as litigation. Litigation defined as: “1. the
process of carrying on a lawsuit the attorney advised
his client to make a generous settlement offer in
order to avoid litigation; 2. The lawsuit itself.”
(Bryan A. Garner (.ed), 2009).
Litigation in sharia capital market dispute is
entitled to be examined and rendered by the Religion
Court as its absolute competence. This is stipulated
under Article 49 paragraph (1) of the Law Religious
Courts as new extended authority. Such article states
that Religion Court in entitled and authorized to
examine, render and settle first instance court civil
claim among moslem in: a. marriage; b. legacy; c.
testamentary; d. grant; e. wakaf; f. zakat; h. sadaqah;
and i. sharia economic. Sharia economic is any
action or activity conducted in accordance with
sharia principle, inter alia: sharia banking, sharia
micro finance institution, sharia insurance, sharia
reinsurance, sharia reksadana, sharia bonds
(obligasi) and sharia MTN, sharia securities, sharia
financing, sharia pledge, sharia pension fund and
sharia business.
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The abovementioned is in line with Article 1 of
SCR No. 14/2016 which states that “Islamic
Economics is a business or activity conducted by
individuals, groups of people, business entities that
are legal entities or not legal entities in order to meet
commercial and non-commercial needs according to
sharia principles. The Sharia Economic dispute is a
case in the field of Islamic economics including
sharia banks, sharia microfinance institutions, sharia
insurance, sharia reinsurance, sharia mutual funds,
sharia bonds, commercial papers, sharia futures,
sharia securities, sharia financing, sharia pledge,
sharia financial institution pension funds, sharia
business, including commercial wakaf, zakat, infaq,
and shadaqah, both contingent and voluntary”.
Furthermore, if the sharia economic study viewed
from the general fiqih muamalah, than the sharia
economic is wider than what is stated in
abovementioned regulation. It shall including all
rights, object, ownership, agreement performed
under the muamalah principle (Ahmad Zaenal
Fanani, 2014).
Pursuant to the abovementioned, any sharia
economic dispute in capital market area such as
sharia reksadana, sharia bonds, sharia MTN, sharia
securities, sharia financing, sharia commercial
papers, sharia futures, sharia securities, sharia
financing and related sharia business, is entitled to
be settled through Religion Court.
2.2 Sharia Capital Market Dispute
Settlement through Regular
Procedure
The judicial is an obligation established by Allah
SWT and a Sunnah of the Prophet that shall be
applied. Then, it is an obligation to clearly
understand any dispute filed and execute it if it is
strongly true. That Summary Script of Al Qadla
Ummar Bin Khatab is basic principle in performing
litigation in Religion Court (H.M. Fauzan, 2015). It
stating that the judicial procedure is important in
settling dispute, especially in finding the truth. Now
days, it is known as litigation procedure.
Litigation Settlement of sharia capital market
dispute through regular formal procedure is
conducted in accordance with the Indonesia Civil
Procedure Law as general procedure. Civil
procedural law is procedure to enforce material civil
law through the decision of court judge. In other
words, civil procedural law is a regulation
determines how to guarantee the implementation of
material civil law. More concretely it is said that the
civil procedural law regulates how to file a claim of
rights, examines, renders and executes the court
decision. Other definition states that civil procedure
law is also called formal law, legal rules determine
and regulate how to exercise civil rights and
obligations as regulated in material civil law
(Sudikno Mertokusumo, 1998).
In the civil procedure law, disputing parties shall
have direct legal relation towards the disputed issue.
Under the civil procedure law, the initiative of claim
shall be brought by a party or several parties who
“feel” that their rights or interests are violated, such
party called as the plaintiff or the plaintiffs
(Retnowulan Sutantio et.al, 1997). The claimed
party is known as defendant.
In resolving disputes through the litigation process
based on civil procedural law in the District
Court/Religion Court, in general the civil cases are
divided into 3 phases, namely: a. Preliminary phase.
At this phase the actions taken are the preparation of
a lawsuit, the act of registering a lawsuit pursuant to
the relative and absolute competency, paying court
fees (down payment), administrative proceedings of
the court, the process of summoning parties to
scheduled hearings and others, b. Examination
phase. At this phase a trial is examined, namely the
reading / submission of a lawsuit, mediation efforts,
submission of answers, replik, duplik, verification of
proof, conclusions and the decision by the judge, c.
The Execution phase, namely the actions related to
the execution of the decision (execution) (Linda
Rachmainy, et.al., 2014). There are some legal
remedies available against such first instance court
decision, namely: a. Ordinary Remedy (Verstek,
Appeal, Kasasi); and b. Extraordinary Remedy
(Judicial Review and Darden Verzet). The time
period in examination through court is indefinite, but
the Supreme Court instructing the judge to examine
the civil claim in first instance court is not later than
6 (six) months. Pursuant to a research study, it is
concluded an important principle in sharia economic
dispute, the Islamic personality principle cannot be
applied, if parties (although non moslem) have
consent to be bound to sharia principles in their
transaction, then the voluntary submission principle
shall be applied (Ummi Azma, 2017). That is a
specific principle which different with the other
Islamic dispute, although such principle is quite
debatable in practice, since the purpose of Islamic
dispute settlement is to perform Islam in kaffah.
2.3 Sharia Capital Market Dispute
through Small Claim Procedure
Under SCR No. 14/2016, a lawsuit in a sharia
economic case can be filed orally or in writing in
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printed or electronically case registration. A case
examined using small claim procedure of sharia
economic cases is with a maximum value of Rp.
200,000,000.00 (two hundred million rupiahs).
Examination as mentioned above is examined refer
to SCR No. 2/2015, except specifically otherwise
under SCR No. 14/2016.
Referring to the requirements, lawsuit related to
default or unlawful acts in the capital market field,
can be examined and decided by a small claim
procedure, provided that it is not: a. cases where the
settlement of the dispute is carried out through a
special court as stipulated in the legislation; or b.
disputes over land rights, as stipulated in Article 3 of
SCR No. 2/2015. However, there are other principle
requirements that shall be fulfilled, namely: a. a
simple lawsuit is filed against a case of breach of
contract and / or unlawful conduct with a material
claim at the maximum amount of Rp. 200,000,000, -
b. that the parties to a small claim consist of plaintiff
and defendant who are respectively one party, unless
they have the same legal interest, c. against the
defendant whose place of residence is unknown, a
small claim procedure cannot be filed, d. plaintiff
and defendant in small claim lawsuit domiciled in
the same court jurisdiction, e. the plaintiff and the
defendant must attend directly to each trial with or
without being accompanied by an attorney (Ema
Rahmawati, 2018). Other important stipulation is the
examination of the lawsuit under the small claim
procedure shall be conducted not later than 25 days.
The procedure of the small claim procedure is
basically consist of 3 phases: a. The preliminary
phase: registration, appointment of judge,
examination of claim by single judge to decide
whether the claim is small claim or not, etc; b. The
examination phase: claim, mediation remedy,
verification of proof, decision; c. the Execution
phase. The only available legal remedy against the
decision is objection, and the decision of objection is
final and binding and there is no other legal remedy
available. Considering characteristics of disputes
and the parties in the capital market, it seems that the
use of this small claim procedure is very limited.
Reviewing the value of material claim at maximum
of Rp. 200,000,000, - is relatively small for
investment transactions in the capital market. Of
course this number only coverage small investors
and has not reached large investors. Furthermore,
restrictions on the requirements of the plaintiff and
the defendant shall in the same domicile/the same
court jurisdiction is also relatively difficult
requirements for disputes in the capital market. In
the era of online trading systems, each party majorly
come from a different legal domicile.
3 ADVANTAGES,
DISADVANTAGES OF SCP
AND CHALLENGE FACE BY
THE RELIGION COURT IN
EXAMINING SHARIA
CAPITAL MARKET DISPUTE
As mentioned earlier, there is a small number of
capital market cases examined and rendered by the
court. Many factors have contributed to such
circumstance. If there is no breach of law is
occurred, the capital market is in ideal performance.
The current problem is, there is breach of law occurs
but no party is intending to file for civil claim to
indemnify their loss. IPO cases of PT Krakatau
Steel, Tbk and PT Katarina Utama, Tbk are several
proofs reflecting the absence of civil claim in the
occurrence of breach of law (although currently the
shares of PT Krakatau Steel, Tbk. is listed in Jakarta
Islamic Index, those cases are not specifically sharia
capital market cases at the beginning).
Pursuant to a recent research, success in the field
of capital market litigation requires high analytical
skills not only in the field of law, but also in
economics and finance. Public companies that have
been involved longer in the capital market will
generally have better understanding of rules in the
capital market sector to protect their interests and
have more funds to hire the best legal consultants to
respond the lawsuit filed by the individual plaintiffs.
On the other hand, for individual shareholders, there
is small chance of having sufficient funds and
understanding of the law to defend their rights. Such
inequality will certainly affect the perception of
individual shareholders regarding the potential of his
victory in court (Pramudya A. Oktavinanda, 2015).
Theoretically, it is stated that if in the view of the
defendant, the plaintiff is expected to get a higher
winning number than the number predicted by the
plaintiff himself, then the defendant will likely
prefer to settle the case amicably since the litigation
costs are generally also greater compared to the
costs of resolving disputes amicably. The probability
of the plaintiff's victory will depend a lot on the
plaintiff's ability to prove the loss suffered along
with the legal basis that the defendant has breached
(the more complicated the issue, the more costs
needed), the defendant's ability to prove otherwise
(i.e. that the plaintiff's position is wrong or baseless),
and the ability of the judiciary to understand the
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complexity of the issues (because there is always the
possibility of the application of wrong regulation).
The cost component includes among others: court
fees, professional consultant fees (law, accountant,
finance, appraisal services), reputation fees, other
administrative costs, and opportunity costs from
other activities that can be carried out if the parties
no litigation is necessary (Pramudya A.
Oktavinanda, 2015).
Some studies have explained that the small claim
procedure is suitable for business disputes. The
mechanism of fast events suspected as measures to
encourage the acceleration of economic growth in
Indonesia to speed up dispute resolution and is able
to provide benefits to the community to get the
means of dispute resolution that is efficient and
effective in order to create justice implemented the
principle of simple, fast and inexpensive as stated in
Act OF and expected by the community as justice
seeker (Anita Afriana dan Efa Laela Fakhriah,
2016).
Referring to a small claim procedure if it is
applied in sharia capital market dispute, it certainly
has advantages and disadvantages. Small claim
procedure is provided specifically for simple cases
that use simple evidence and simple verification of
evidence. Meanwhile, in certain capital market
transaction usually involving large amount of fund,
such as initial public offering, bonds issuance and
etc. Accordingly, the small claim procedure is
suitable only for retail investor transaction case.
The advantages in applying the small claim
procedure in sharia capital market case, are: a.
definite and short period provided (no later than 25
days), so it accommodates prompt decision for the
disputing parties; b. the small claim procedure
applying simple procedure which commonly desired
by the disputing party [investor]; c. the available
remedy against the judge decision is objection, and
the decision of objection is final and binding, thus it
serves legal certainty to the disputing parties; d. the
small claim can be filed to any religion court over
the country, save as it fulfils the relative and
absolute competency; e. small claim procedure is
relatively less cost.
However, despite of the advantages in applying the
small claim procedure to sharia capital market
dispute, there are also some disadvantages, as
follows: a. limitation of claim amount is relatively
small for certain capital market transaction, and it
only covers retail consumer; b. simple verification of
proof might not be appropriate for examining more
complicated disputes; c. the limitation of number of
plaintiff and defendant cannot be applied in massive
transaction dispute; d. the civil claim cannot be filed
against the unknown domicile of the defendant; the
limitation of the same court domicile jurisdiction is
quite inflexible, considering that in this online
trading system era, parties can be connected over the
world.
Pursuant to the abovementioned, the implementation
of small claim procedure upon sharia capital market
dispute is one of milestone in creating ease of doing
business, hence it provides a simple, prompt and less
cost procedure desired by the parties, although in
certain requirement is not quite suitable for capital
market transaction. However there is a huge
challenge for the religion court in holding its
competency to examine and render decision
concerning the sharia capital market civil claim.
In connection with the competency of Religion
Court in examining and rendering the capital market
sharia dispute, it shall be considered the current
position of the Indonesian Religion Court. A study
has elaborated that the Religion Court has several
strengths, i.e. well human resources with high
knowledge of sharia, the Religion Court is available
in any city over the countries and it is easy to be
accessed, the majority religion of Indonesia is
Moslem and therefore the enthusiasm in applying
the Islamic principles is relatively high. Moreover,
despite of the above, the are several factors that
might be the lack factors in supporting the existence
of the Religion Court. Those are as follows: there is
no specific regulation of the sharia economic except
what is regulated under SCR No. 2 Year of 2008 re:
Compilation of Sharia Economic, majority of the
human resources in the Religion Court is having
sharia educational background and accordingly they
have less understanding in economic, both micro
and macro (Renny Supriyatni and Andi Fariana,
2017). Concerning that the sharia capital market is
also full of the financial aspects and not only sharia
aspects, this become of the challenge faced by the
Religion Court in relation to its competency in
examining sharia capital market case.
Some challenges are faced by the Religion Court
after the amendment of its competencies. The
following are the opportunity of Religion Court: a.
institutionally, the existence of Religion Court is
strengthened due to the additional of competencies,
accordingly, the position of Religion Court shall be
higher and at the same level with the other court; b.
the Religion Court shall prepare its human resource
to give best services especially the capability of
sharia economic knowledge; c. the Religion Court
shall improve the facility and infrastructure to be
ready to serve public more (Ahmad Zaenal Fanani,
2014).
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Based on the abovementioned description, it can
be concluded that the main challenge faced by the
Religion Court is the human resources issue. If the
challenges is perfectly responded by the Religion
Court by rapidly and constantly improving the
capability of the human resources both in procedural
and material law, the Religion Court is potentially
deemed to be one of the appropriate court to settle
the sharia economic dispute, including sharia capital
market dispute. The improvement is a must, since
sharia capital market dispute is full of sharia
economic aspect and legal aspect which
substantially dynamic and complex.
4 CONCLUSIONS
Sharia capital market dispute is one of the sharia
economic dispute that is entitled to be examined by
the Religion Court through regular procedure or
small claim procedure. Small claim procedure
pursuant to SCR No. 14/2016 jo. SCR No.2/2015 is
applicable in examining the sharia capital market
dispute through the Religion Court, upon certain
specific requirements, inter alia, maximum amount
of claim is Rp. 200.000.000,-, disputing parties shall
be in the same court jurisdiction, and the period of
examination is not later than 25 days, the only
available legal remedy is objection and the decision
of the objection is final and binding. This settlement
provides legal certainty due to its simple, prompt
and less cost procedure.
The advantages in applying the small claim
procedure in sharia capital market case, are: a.
definite and short period provided (no later than 25
days), so it accommodates prompt decision for the
disputing parties; b. the small claim procedure
applying simple procedure which commonly desired
by the disputing party [investor]; c. the available
remedy against the judge decision is objection, and
the decision of objection is final and binding, thus it
serves legal certainty to the disputing parties; d. the
small claim can be filed to any religion court over
the country, save as it fulfils the relative and
absolute competency; e. small claim procedure is
relatively less cost.
However, despite of the advantages in applying the
small claim procedure to sharia capital market
dispute, there are also some disadvantages, as
follows: a. limitation of claim amount is relatively
small for certain capital market transaction, and it
only covers retail consumer; b. simple verification of
proof might not be appropriate for examining more
complicated disputes; c. the limitation of number of
plaintiff and defendant cannot be applied in massive
transaction dispute; d. the civil claim cannot be filed
against the unknown domicile of the defendant; the
limitation of the same court domicile jurisdiction is
quite inflexible, considering that in this online
trading system era, parties can be connected over the
world. Further, huge challenges are faced by the
Religion Court in examining and rendering its
decision in sharia capital market dispute due to the
complexity of sharia economic aspect and legal
aspect.
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