Proceeding i coffees 2018 final edition
PROSIDING
SEMINAR INTERNASIONAL
FAKULTAS HUKUM - UNIVERSITAS LAMPUNG
“International Conference on Fundamental Rights (I-COFFEES)”
Bandar Lampung, 7 September 2018
Penerbit:
Fakultas Hukum - Universitas Lampung
PROSIDING SEMINAR INTERNASIONAL FAKULTAS HUKUM - UNIVERSITAS LAMPUNG “International Conference on Fundamental Rights (I-COFFEES)” 2018
Committee: Chairman: Dr. Rudi Natamiharja, S.H., DEA.
Secretaries: Rudy, S.H., LL.M., LL.D. Ria Wierma Putri, S.H., M.Hum. Rehulina, S.H., M.H. Treasuries: Nenny Dwi Ariani, S.H., M.H.
Program Commiittee Chairs: Yunita Maya Putri, S.H., M.H. Rohaini, S.H., M.H., Ph.D. Dewi Septiana, S.H., M.H. Yulia Kusuma Wardani, S.H., LL.M. Fathoni, S.H., M.H. Syamsir Syamsu, S.H., M.H. Public Relation: Dr. Yusnani Hasyim Z, S.H., M.Hum. Dr. Nikmah Rosidah, S.H., M.H. Desy Churul Aini, S.H., M.H. Siti Khoiriah, S.H., M.H. Publicity Committees: Defri Liber Sonata, S.H., M.H. M. Iwan Satriawan, S.H., M.H. Dr. Erna Dewi, S.H., M.H. Marlia Eka Putri, S.H., M.H. Steering Committee: Prof. Dr. Muhammad Akib, S.H., M.H. Prof. Dr. Sanusi Husin, S.H., M.H.
Prof. Dr. Yuswanto, S.H., M.Hum. Prof. Dr. Heryandi, S.H., M.S. Prof. Dr. Sunarto, S.H., M.H.
Article Reviewer: Prof. Dr. Muhammad Akib, S.H., M.H. Dr. Tisnanta, S.H., M.H. Dr. Muhammad Fakih, S.H., M.H. Dr. Nunung Rodliyah, S.H., M.H. Dr. Wahyu Sasongko, S.H., M.H. Dr. F.X. Sumarja., S.H., M.H. Dr. Hamzah, S.H., M.H. Ria Wierma Putri, S.H., M.Hum. Bayu Sujadmiko, S.H., M.H., Ph.D. Editor: Prof. Dr. Heryandi, S.H., M.S. Prof. Muhammad Akib, S.H., M.H. Dr. Rudi Natamiharja, S.H., DEA. Rudy, S.H., LL.M., LL.D. M. Iwan Satriawan, S.H., M.H. Accommodations Committee: Yulia Neta, S.H., M.H. Martha Riananda, S.H., M.H. Siti Azizah, S.H., M.H. Muhammad Farid, S.H., M.H. Publisher: Fakultas Hukum Universitas Lampung Address of Publisher: Jl. Prof. Dr. Soemantri Brojonegoro, No. 1 Bandar Lampung, 35145 Telp. 0721 704623 Fax. 0721 709911 Email: i.coffes@unila.ac.id
st
1 edition, Januari 2019 Hak cipta dilindungi undang-undang. Dilarang memperbanyak karya tulis ini dalam bentuk apapun Tanpa ijin tertulis dari penerbit
ISBN : 978-602-61528-1-7
Welcoming Address
The First International Conference on Fundamental RightsI heartily welcome you for the prestigious occasion of our Faculty. The idea of putting the researchers, academics and practitioners of an educational institution is so inspiring: what was once planted as a sapling is now all grown into a large tree. Here I can see a blend of extraordinary and educated people who have made this day arrive; they have come to us from each and every corner of the city.
This year, I find it to be my pleasure to address you people who are the minds of today and the responsible citizens of tomorrow. I and whole of our dedicated Committee team appreciate the efforts put in by researchers, academics and practitioners to come and presented each of paper that will be published. So, here I feel privileged to extend my warm welcome to all who are constantly extending their support and love to fulfil I- COFFEES.
The committee have received 146 paper proposals and we accepted 128 papers, but unfortunately only 63 papers will be presented during the conference, encompassing 12 themes relating with fundamental rights.
Taking further, I on the behalf of everyone present here, heartily welcome all the presenter and participant, the guest of honour, and all the keynote speaker. I am especially thankful to Prof. Yushiro Kusano, Dr. Kyaw Nyi Nyi, Ph. D., MHRD, MSc., Prof. Dr. M. Idriss Fassasi, LL.M., Prof. Hikmahanto Juwana, S.H., LL.M., Ph.D., and Prof. Muhammad Akib for accepted our request and readily agreed when he looked at today's event and its program. So, I hope for everyone to have an endeavors and life experiences from I-COFFEES.
Bandar Lampung, 7 September 2018 Chef Committee, Dr. Rudi Natamiharja, S.H., DEA.
TABLE OF CONTENTS
Business & Economic Rights
Building a Non-Bank Islamic Business Based on Sharia Economic Law .......................1 Lina Maulidiana Management of Sharia Mutual Fund in Islamic Economic Law of Indonesia (Study Collective Investment Contract (CIC) Mutual Fund) ........................................... 16
Nunung Rodliyah and Ade Oktariatas K
Implementation of the Rights of Businesses and Economic in the Globalization .......................................................................................................... 30
Suyatno
Constitutional Democracy & Election
Threshold the Presidential Nomination in 2019 Elections ............................................... 45
Eka Mandayanti
The Election Organizers Ethics Council of Republic of Indonesia (DKPP RI): New Chapter of Ethical Court and Democracy ................................................................ 58
Ferry Fathurokhman
Critiquing the Problem of Threshold Against the Constitutional Rights of Political Parties in Proposing a Candidate For President and Vice President .............. 67
Ricca Anggraeni, Cipta Indralestari Rachman and Muhammad Ihsan Maulana
A Model Political Education to The Society to Create Democratic Election .................. 81
Muhammad .Iwan Satriawan and Evie Faridaturohmah
Redesign of Constitutional Ethics for Constitutional Court Judges Based on Pancasila Law in Realizing the Goal of the 16th SDGs ............................................. 90
Muhtadi and Indra Perwira
Criminal Law Development
International Coorperation againt Transnational Corruption ........................................... 100
Ahmad Baharuddin Naim
Local Wisdom Existence i n Indonesia’s The Sentencing System ................................... 110
Erna Dewi and Damanhuri Warganegara
Optimizationof Criminal Law Enforcement Model Based on Integral and Scientific Approachesagainst Crime Spoliation (Begal) in Lampung ...................... 136
Heni Siswanto and Aisyah Muda Cemerlang
Penal Mediation as an Alternative Model of Restorative Justice in The Criminal Justice System of Children ..................................................................... 150
Henny Saida Flora
Death Sentence in Hindu Perspective .............................................................................. 162
I Ketut Seregig
The Implementation of Human Rights Instruments in Criminal Victims Protection ...... 182
Ino Susanti, Waty Suwarty H. and Petrus Irawan Panjaitan
Restructuring the Corruption Law Enforcement Model that Optimizes Corporation as Corruption Subject of Criminal Act ................................ 196
Sunarto D.M. and Heni Siswanto
Environmental & Natural Resource
Considering Affected People Rights as a Human Rights in the Land Acquisition for Public Interests ............................................................................................................ 210
Ade Arif Firmansyah, HS. Tisnanta, and Malicia Evendia Land Law Position in Indonesia: the Persfective of Government Regulation No.
47/2015 ............................................................................................................................. 220
Adhimaz Kondang Pribadi
In Making of a Responsive and Sustainable Environmental Budgeting in Province of Lampung ........................................................................................................................... 239
Marlia Eka Putri A.T and Fathoni
Good Governance & Public Service
Authority of Civil State Apparatus (ASN) Doctor Post Revoking The Registration Certificate ............................................................................................. 246
Apriyanto
The Effectiveness of the Regulation of Minister of Health Number 33 in 2015 Concerning the Planning of Health Human Resources Need .......................................... 256
Defi Fitri Agustiani
The Provincial Government Authority in Conducting Programmed Immunization ........ 268
Miravianti
The Regional Government Authority in Provisioning Regional Regulation of Non-Smoking Area ...................................................................................................... 283
Rika Tri Okviyanti
Analysis of Public Service Survey in West Lampung ..................................................... 292
Robi Cahyadi K, Rudy, Rudi Wijaya and Chaidir Ali
Human Security
Legal Protection of Nurse in Providing Health Services .................................................. 305
Ambar Widiyanto
The Legal Analysis of Vehicle Reposseossion Finance Companies ................................ 314
Bani Muhammad Alif
Legal Aspects o f The Informed Consent Completeness, Related with Patient’s Rights and Duties And Responsibilities of The Hospital ............................................................ 324
Diah Harsowati
The Role of Government in Traditional Health Services ................................................. 336
Henita
The Effectiveness of Regulation of Minister of Health Number 97 in 2014 to Delivery by Midwifes in Primary Health Care Facilities to Reduce Maternal Mortality Rate ................................................................................................... 348
Rina Apriyanti
Implementation of Health Social Security in Human Rights Perspectives in Indonesia . 356
Sri Zanariyah, M. Najib Imanullah, Arief Suryono, and Adi Sulistiyono
The Rights of HIV/AIDS Patients’ Care: Medical Secrecy and Medical Record ........... 370
Suci Hawa
Rights to Personal Data Base Warranty as Rights of Privacy .......................................... 384
Sulistino and Muhammad Syaiful Dahlan
Indigenous Rights
Why Indigenous Community Matter ? : The Persistence of Boti Tribal Community to Survive Their People, Lands, Norms And Values ....................................................... 392
Budiyanto Dwi Prasetyo and Handoyo
The Role of Indigenous Rights in the Management of Natural Resources Conservation Biodeversity Area and Ecosystems: Perspective Study Based on Politic of Law Paradigm .............................................................................................................. 407
Danggur Konradus
Why Do Belief of Followers Rebel ? The Indigenous Religion and Citizenship ........................................................................................................................ 425
Dewi Nurhalimah
The Paradox of National Development Indigenous Peoples under Human Rights Perspectives ........................................................................................................... 436
Mas Nana Jumena and Afandi Sitamala
Individual Justice
The Protection of the Right of Foreign Workers Based on the International Convention on the Protection of All Migrant Workers and Members of Their Families 1990 and the Implementation in Indonesia ....................................................... 448
Desy Churul Aini and Desia Rakhma Banjarani
Warning Violations under International Humanitarian Law ............................................ 469
Dian Mahardikha
Cooperation Agreement between Pharmacist and Apothecary Owner ............................ 480
Refmidawati
Pancasila’s Freedom of Speech ........................................................................................ 488
Rudi Natamiharja, Heryandi and Stefany Mindoria
Law & Development
The Notary’s Role in the Implementation of Tax Amnesty in Batam City ..................... 499
Agus Riyanto, Lenny Husna, Padrisan Jamba, and Frangky Silitonga
Prohibition of Land Ownership for Citizens of Non Indigenous in the Special Region of Yogyakarta .................................................................................... 511
Shandi Patria Airlangga, F.X. Sumarja and Sri Sulastuti
Juridical Review on Human Rights Protection of Indonesian Overseas Workers Based On National Law and International Law ............................................................... 519
Siti Azizah and Desia Rakhma Bajarani
Legislation Development
Building and Empowering Rural Society through Village Fund ..................................... 532
Ahmad Taufik
Reconstruction of Protection the Right of Land Within Tradition Law Society in The Perspectif of Human Right ............................................................................................... 546
Candra Perbawati
The Construction of Village Regulation Formulation ..................................................... 559
Rudy, Yusnani Hasyimzum, Roro Rukmi W P, and Siti Khoiriah
Urgent Construction of Indigenous Village Regulation in Indonesia .............................. 574
Yulia Neta, Rudi Wijaya, Tia Nurhawa
Transportation
The Influence of Mass Media on Traffic Awareness Consciousness and Transportation in The City of Bandar Lampung ....................................................................................... 583
Eddy Rifai, Husna Purnama, Nila Sari Dewi and Akbar Prima Rifai
Effectiveness of the Fine of Traffic Compliance Based on Law Number 22 of 2009 on Highway Traffic and Transportation In Baturaja City ................................................ 603
Nora Soraya Sinabutar
Freight Forwarding Through Air Cargo: (Study on Garuda Indonesia Airline Company) ......................................................................................................................... 615
Ratna Syamsiar
Disability Rights Protection on Public Transportation Facilities In Bandar Lampung ... 633
Rizky Pradana Putra Laksana Panjaitan and Ria Wierma Putri
Women & Children
Rule of Law Marriage in Indonesia on Sanctions Prohibition of Criminal Practice Unregistered Marriages .................................................................................................... 646
Achmad Yustian Jaya Sesunan
Models of Policy Making: Juvenile Detention Center and Self-Reliance Program ......... 657
Bayu Sujadmiko and Intan Fitri Meutia
Legal Protection to Support the Implementation of Breastfeeding Counseling .............. 663
Lenny Syahnimar
Legal Protection of Children: Child Soldier Recruitment in Somalia ............................. 679
Bahjah Ayu Bakta and Misbahul Ilham
Implementation of Children Rights in the Field of the Law............................................. 688
Nikmah Rosidah dan Chaidir Ali
The Violation of the International Code of Marketing of Breast-Milksubstitutes .......... 700 in Sumatera Island Indonesia
Ritma Fathi Khalida, Upi Fitriyanti and Helen Emdaniar Kawulusan
Strengthening Children Education in the Environment Based on Law No. 35 of 2014 on the Amendment to Law No. 23 of 2002 on Child Protection ..................................... 704
Siti Khoiriah and Yeti Yuniarsih
Children Rights on Public Sphere .................................................................................... 715
Thania Christy Corne and Rehulina
Violence against Woman and Children ............................................................................ 724
Yunita Maya Putri
PROCEEDING
THE FIRST
INTERNATIONAL CONFERENCE
ON FUNDAMENTAL RIGHTS
FACULTY OF LAW
UNIVERSITY OF LAMPUNG
September 7 th , 2018
LAMPUNG - INDONESIA
Building a Non-Bank Islamic Business Based on Sharia Economic Law
Lina Maulidiana
Abstract
Economic activities especially in the field of trade outside of the bank are rapidly developing in Indonesia. One of them is Islamic business such as Kitamart, 212Mart, UMMAR, Sodaqoh Mart, etc. This is proven by the increasingly widespread business people based on sharia economic law, however there is no specific regulation that safeguardsthat business. Problem formulation: 1. What is the model of Islamic business in Indonesia? 2. What is the role of government in building Islamic business in Indonesia based on sharia economic law? The result of the study concluded: Islamic business practitioners use sharia business in the form of syirkah, namely business contract which arenot containriba. (Al-'Aini in 'Umdah al-
Qari' ) gharar, in- doubt transaction deception or action that aims to harm the other party or
in other sense that a contract contains an element of fraud, because there is no certainty, whether regarding the existence or not of a large, small contract object regarding or submitting the object of the contractanddoes not contain maisir, business of luck like gambling. This has not yet developed because it’s difficult to trace. Government’s involvment in buildingthe islamic business outside the banking system is still limited to the fatwa of the National Sharia Board and the Compilation of Islamic Laws. There is no specific regulation currently in place to protect Islamic business in general.The Government in performing its role,accordance with regulations, itis only limited to the bureaucracy of licensing, guidance and supervision carried out by the Supervisory Team established by the Director General of Domestic TradeSuggestions: 1. The government needs to conduct socialization to the community especially for the business of Islam, so that they are interested in doing Islamic business based on sharia economic law. 2. There needs to be an implementation of the government in conducting guidance and supervision of Islamic business people, so that the sharia business can be on a par with conventional businessequivalent to conventional business.
Keywords : Islamic Business, Sharia Economic Law
A. Introduction
Humans in acquiring their necessities of life in the association of society conduct legal relations and agreements based on the will of agreement. The agreement arises due to a law that bind both parties, in this connection an agreement is required. Book III article 1313 of the Civil Code provides an understanding of the agreement, namely: "An act by
1 which one person or more ties himself to another person or more" .
The relationship between these two people is a legal relationship where the rights and obligations of the parties are guaranteed by law. An agreement can lead to an engagement, in the form of a series of words that contain a promise or ability that is spoken or written. This is confirmed by the provisions of article 1338 paragraph (1) of the Civil
2 Code, namely: "An agreement made legally applies as a law for the author" .
An agreement occurs legitimately if each party is free to bind it, if there is a lack of willin the agreement, then it can be canceled. An agreement is deemed to have no freedom of will if it occurs because of coercion, error, and fraud. Business practices can be found in a variety of agreements (contracts) used by business people likewise, the terms used are quite varied, some use agreements, contracts and consents, so the contract is something very important in the course of business activities. The contract will link businessmens with other businessmens or the relationship between businessmens and consumers. This relationship will facilitate business activities because this relationship will clearly realize the rights and obligations of the parties.
Sharia business is different from conventional businesses that use the interest system as an instrument of provit which is based on the human mind to survive in a temporal economic law. Sharia business uses profit sharing, the process has a strong basis based on the Quran and Hadith that cannot be compared to human thought.
Sharia business based on Islamic principles against riba. Sharia business is bound to moral and ethics in accordance with what is taught by the Prophet Muhammad. In addition to having a business purpose, sharia business also carries out the shari'a and commands of Allah SWT as taught by the Prophet Muhammad in doing business and interacting with fellow human beings, in contrast to a more individual capitalist, socialist that gives almost all responsibilities to its citizens and extreme communists . Islamic business establishes 1 2 Code of Civil Law Ibid., Article 1338 verse (1).
forms of trade and services that are allowed and forbidden to be traded. Business in Islam must be able to provide welfare for the society, provide a sense of fairness, togetherness and kinship and be able to provide the widest possible opportunity to every businessmen.
The mechanism of Islamic financial institutions using a profit sharing system is an
3
alternative choice for the business community . The essence of the mechanism of profit sharing basically lies in good cooperation between Shahibul Maal and Mudarib. Cooperation or partnership is a characteristic in the Islamic economic society. Economic cooperation must be carried out in all core economic activities such as production, consumption, distribution of goods and services. One of the form of cooperation in islamic business is
mudharabah . Through mudharabah both parties who are partnering will not get interest but
get profit sharing from the economic projects agreed upon together.The union in Islam known as asy-syirkah or al-musyawarah, is one of the transactions or ways to obtain assets to meet the needs of life. The association according to Islam belongs to the muamalah group, which is the part of sharia law which regulates human relations with other humans beingsrelated to property. Another part of sharia is worship, which is a law that regulates vertical relations with Allah and the amaliyah in the context of
4
the belief in human relations with God regulated in the aqeedah section . One of the example of a Non-Bank Sharia business that is growing rapidly in Indonesia is UMMAR (Ummah Market), a place to shop for Muslims to fulfill their needs.
Based on the description in the background, the study in this paper is: a. Why is Sharia business not yet developed in Indonesia? b.
What is the role of the government in building sharia business in Indonesia? The benefits of this research are theoretically expected to add insight into the knowledge of sharia business in particular, for the development of legal science, especially business law and as further research material. Practical Benefitst is expected that the results of this study provide additional knowledge for entrepreneurs and can be used as a material consideration in taking policy for the government related to sharia business issues.
B. Literature Review
1. Social Welfare Theory
3 4 Muhammad. Tehnik Perhitungan bagi hasidi Bank Syariah.Yogyakarta :UII Press,2001, p. 13
Akmad Mujahidin, Hukum Perbankan Syariah, Jakarta : RajaGrafindo Persada, 2016, p. 81.
The life coveted by all people in this world is welfare. Both those who live in the city and those in the village all crave a prosperous life. Social welfare in Islam is the belief that humans were created by Allah SWT. Humans do not submit to anyone except Allah SWT. (Q.S. Ar-
Ra’du: 36) and (Q.S. Luqman: 32). This is the basis for the charter of Islamic social freedom from all forms of slavery.
Regarding this matter, the Qur'an expressly states that the main purpose of Muhammad's prophetic mission is to release man from the burden and the chain that binds him (Q.S. Al-
5 A'raaf : 157) . The concept of social welfare in Islam is that humans are born independent.
Therefore, no one even any country has the right to revoke this independence and make human life bound. In this concept, every individual has the right to use his independence as long as it remains within the framework of Islamic norms. In other words, as long as that freedom can be accounted for both socially and spiritually before Allah SWT.
2. Theory of Law and Economics
The encounter between economics and law is not a new thing, the economic approach to law can be found in the work of followers of utilarianism such as Cesare Bonesara (1764), and Jeremy Bentham (1789); the work of political economy Adam Smith (19776) and Karl Marx (1861); and the flow of the American Institutionalist School which is associated with
6
the work of John R. Commons (1929) . Law and Economics was originally an idea of economics (non-law) which saw the potential to utilize legal instruments to achieve optimal
7
results in implementing public policy, especially in the economic field . Legal experts welcome the idea in an effort to overcome the problems that occur in the community.
Broadly speaking, Law and Economic applies its approach to contributing thoughts on two basic issues regarding legal rules, namely a positive or descriptive analysis, regarding the question of the influence of legal rules on the behavior of the person concerned (the identification of the effects of a legal rule); and normative analysis, regarding the question of whether the influence of legal rules is in accordance with the wishes of the community
8 (the social desirability of a legal rule) . 5 6 Ikhwan Abidin Basri,Islam dan Pembngunan Ekonomi, Jakarta: Gema Insani Press 2005, p. 89.
Cento Veljanovski, The Ekonomics of Law, Ed. 2, London : The Institute of Economic Affairs, 2006, p. 27 7 Jhonny Ibrahim, Pendekatan Ekonomi Terhadap Hukum: Teori dan Implikasi Penerapannya Dalam Penegakan Hukum, Surabaya : Putra Media Nusantara & ITS Press, 2009, p. 43. 8 Karl E. Case dan Ray C. Fair, Prinsip-prinsip Ekonomi Mikro (Principles of Economic), Ed 5, diterjemahkan oleh Benyamin Molan, Jakarta : Prenhallindo, 2001, p. 12. The approach used by Law and Economics on these two basic issues is an approach commonly used in general economic analysis, which describes the behavior of both individuals and companies, which are forward looking and rational, and also adopt an
9 economic welfare framework for testing people's will .
3. Sharia Business ( Al-Tijarah)
In the Al- Qur'an the word ‘business’ is al-tijarah which means trading . At-tijaratun walmutjar namely trade, commerce (according to Al-Munawwir's dictionary). According to
Ar-Raghib , Al-Asfahani in Al-Mufradat fit the Gharib Al-Qur'an, at-tijarah means managing
property for profit. According to Ibn Farabi, who was quoted by Ar-Raghib, fulanun tajirun bi kadza means someone who is skilled and capable who knows the direction and goals
10 pursued in his efforts .
In the sharia business it must be bound to the Shari'ah, that:"Then we make you above the Shari'a (rules) of the affairs (religion), then follow the Shari'a and do not follow the
11
passions of those who do not know" (Surat al-Jaatsiyah: 18) . Allah SWT forbids His servants who might eat their neighbor's wealth in an evil manner and how to seek illegitimate profits and violate the Shari'ah such as riba, gambling and the same from various tricks that appear to be in accordance with the Shari'ah law but Allah knows that what is done is only a trick of the perpetrator to avoid the legal provisions outlined by the Shari'ah of Allah
1. Sharia Contract Concept
Terms related to the agreement, in the Al-Qur'an, there are at least 2 (two), namely the contract (al- ‘aqdu) and the word‘ahd (al-‘ahdu). The first word etymologically means agreement, engagement, and al-ittifaq. Al-Qur'an uses this word in terms of engagement
12
and agreement. This can be seen in surah Al-Maidah verse 1 . While the word al-
‘Adhuetymologically means time, message, perfection and promise or agreement. This can
be seen in the Al-Qur'an of Al-Nahl verse 91 and Al-Isra verse 34, common word used in mu'amalah (business transactions) is the word contract (al-
‘Aqd). According to Islamic
jurists, the word contract is defined as follows: "The relationship between ijab and qabul in 9 Steven Shavell, Foundation of Economic Analysis of Law, Cambridge : Harvard University Press, 2004, p. 1-.3. 10 11 Jeni Susyanti, Pengelolaan Lembaga Keuangan Syariah, Malang : Empat Dua, 2006, p. 5. 12 H. Dwi Condro Triono, Pengantar Bisnis Syariah, Islamic Businees Bootcamp, p. 9.
Wahbah Zuhaili, Al-Fiqih Al-Islamiy wa Adillatuh, Mesir : Dar al-Fikr, 1989, p. 80-81. accordance with the will of the conditions that determine the effect of law on the object of
13 engagement" .
Akad comes from Arabic which means bond, conclusion, or agreement. Akad in
Indonesian language is also called an agreement, whereas in sharia economic law is called akad. The word contract is derived from the word al'aqd, which means to tie, connect or
14
connect (
ar’rabht) ”. Akad (al-‘Aqd), in the sense of Indonesian is called contract, is a
logical consequence of social relations in human life. This relationship is destined by God when creating creatures called humans. Therefore the intended contract is a social need that is comprehensive and universal give the clear enough rules in the contract to be implemented in social life at all times.
C. Researched Method
The research method used in this study is normative-empirical (applied) legal research. The type of research is descriptive explanatory. The case studies regarding the Non Bank Islamic business using sharia economic law. Using secondary data and primary data, collecting data through searches and interviews supported by documents and analyzed qualitatively.
D. Research Results and Discussion
1. Sharia Business Analysis Not yet developed in Indonesia
Al-Qur'an is altijarah which means trading, managing property for profit. Allah SWTforbidding His faithful servants to eat the property of others in an evil manner and how to seek illegitimate profits and violate sharia such as usury, gambling and the like from various tricks that appear to be in accordance with shari'a law but Allah knows that what is done is only a trick of my people to avoid the legal provisions outlined by the Sharia of Allah. God excludes from this prohibition the pursuit of property by means of trade (commerce) carried out on the basis of mutual liking by the two parties concerned.
Allah swt said in Sura Nisa: 29:
13 Mariam Darus Badarulzaman, Kompilasi Hukum Perikatan, Bandung : Citra Aditya Bakti, 2016, p.
247. 14 amsul Anwar, Hukum Perjanjian Syariah Studi Tentang Teori Akad Dalam Fikih Muamalat, Jakarta : Raja Grafindo Persada, 2007, p. 96
"O you who believe! Do not complement each other's wealth with the way that you bathe
except in the trade that applies above like you among you. And do not kill yourself. Really,
15 Allah is Merciful " .
In sharia business,which is more of a role as a trigger: Islamic way of choosing sharia business or is it a sharia business that will encourage to Islam? It is a fact that Islam is a sharia business. However, it is also true that the sharia business (sharia economic way) will have implications for Islamic protection. So, the relationship between dialectics, despite the initial Islam being the initial trigger, because it separates the Islamic business can also be
16
used as an entry point for the improvement of Islam and morals . In his seminar, it was conveyed that "A Muslim must be active in the economy without being able to be separated
17 from Islamic values” .
Ijtihad
as a source of Islamic law provides opportunities for the development of Islamic thought in dealing with all problems in the era of globalization. Various types of transactions begin to emerge to fulfill the needs of daily life. Many new types of transactions that promise multiple benefits in an easy and simple way. In addition, there are also statutory regulations governing the modern-day economic transactions issued by government authorities as an effort to control the existing and developing economic transactions in Indonesian society, the majority of which are Muslim, because the majority of people in Indonesia are Muslim, then the positive law (ius contitutum) which regulates this matter must also be examined in clarity according to Islamic law.
One of Islamic business in Indonesia is classified as a type of musharaka business (syirkah / syarakah), which is between two people in managing a product, where the owner is between two people in managing a product, this sharia business is a concept of beneficial cooperation between two parties in developing their respective businesses.
This is in accordance with the word of God which said: "And help you in (doing)
virtue and piety and do not help help in committing sins and transgressions. And believe in
Allah, verily Allah is severe in His punishment "(Surat al-Maidah: 2). Likewise in QS.
Shaad : 24, "And indeed most of those who are in association some of them do wrong to
15 16 Jenis Sustanti, Op.cit., p. 6.Agus Triyanta, Hukum Ekonomi Islam Di Indonesia: Aspek Filosofis Dan Praktis Penataran Dosen
Hukum Ekonomi Islam Indonesia ke- 1”, Seminar, Asosiasi Pengajar dan Peneliti Hukum Ekonomi Islam
(APPHEISI) dan Prodi Hukum serta Pascasarjana Fakultas Hukum Universitas Islam Indonesia Yogyakarta, 19-21 April, 2018. 17 Loc.cit. some others, except those who believe and do righteous deeds, and very few of them." Furthermore the Rasullulah explained the positive side of association this is in the Qudsi hadith of Abu Hurairah Ra, said to the Messenger of Allah "truly Allah said:" I am the third
(helper) of two people who associate, as long as one does not betray his friend, if he betrays
then I come out of the union of two people that"(HR. Abu Dawud No. 3383). Based on the results of research by conducting a survey to the location of sharia business and conducting interviews by sharia businessmen, using syirkah (cooperation, work partners or profit partners), such as on: UMMAR (Ummah Market)/Working Partners (Syirkah). Based on the results of an interview by Mr. Emil Edhie Dharma as a businessman in UMMAR (Ummah Market) as Director and Mr. Lio Hudiyawan, Putra Fajar, Rizalman, as the manager of UMMAR's business activities said in essence that:
UMMAR (Ummah Market) / Working Partner (Syirkah), in capturing its business to do business strategies that do not deviate from Islamic teachings. UMMAR is a sharia business with a strategy in capturing Muslim businesses to join in a single container, namely the Ummah Market (UMMAR). These businessmens invest and UMMAR as managers by collaborating with other parties such as PT. Pos Indonesia as the procurement of facilities or Karang Taruna in West Java about the utilization of youth potential and village potential in West Java within the scope of sharia business.
The management of UMMAR assigns expert personnel called Expert Partners in the management of UMMAR in their business activities. As for the system offered by UMMAR with a profit sharing system in accordance with the agreements made by the parties in the agreement, the absence of coercion, no riba and maintaining the principles of sharia and capital they do not use Banking.UMMAR entrepreneurs from members of the Islamic congregation who gathered with the same vision and mission that is to improve the economic
18 level of the Muslim community .
This is in accordance with the Segel and Bruzy social welfare theory that: Social welfare is a prosperous condition of a society. Social welfare includes health, economic conditions, happiness, and the quality of life of the people. Social welfare in Islam, being the most important pillar in a Muslim's belief is the belief that humans were created by Allah SWT. He does not submit to anyone except Allah SWT. (Q.S. Ar- 18 Ra’du: 36) and (Q.S.
Interview, Emil Edhie Dharma and Rian, as businessmen UMMAR (Ummah Market), in 6 Januari 2018.
Luqman : 32). This is the basis for the charter of Islamic social freedom from all forms of
slavery. Regarding this matter, the Qur'an expressly states that the main purpose of Muhammad's prophetic mission is to release the human being from the burden and the chain
19 that binds him (Q.S. Al-A'raaf: 157) .
The concept of social welfare in Islam is that humans are born independent. Therefore, no one even any country has the right to revoke this independence and make human life bound. In this concept, every individual has the right to use his independence as long as it remains within the framework of Islamic norms. In other words, as long as that freedom can be accounted for both socially and spiritually before Allah swt.
One example of the Ummar Minimarket Sharing Production Sharing Agreement Between Ummah Market (Ummar) and Ummar Partners Number: 01 / PKS-MITRA / UMMAR / XI / 2017 that:
Profit Sharing Cooperation Agreement (hereinafter referred to as "Agreement") is made and signed in Jakarta, on Friday, October 6, 2017, the undersigned: a.
PT. Global Media Perkasa, a Sharia Business development company formed and established with the Notarial Deed of Isadora, S.H., MKn, Number 01 dated 11 January 2011 domiciled at Jl. Taman Empu Sendok, Number 21, Kebayoran Baru, South Jakarta, legally represented by Emil Edhie Dharma as President Director, acting for and on behalf of PT. Global Media Perkasasel is the owner of the trademark Ummah Market (UMMAR) hereinafter referred to as the First Party.
b.
Herdi Yustiadi, Indonesian Citizen, with the address Puri Sriwedari Blok J No.34, Cimanggis, Cibubur, West Java, with the Population Identity Card (NIK) 317-504- 161171-0003 which is legally acting for his own behalf or representing the UMMAR Partner community which is subsequently in the Agreement called Second Party .
In the contents of this agreement the parties namely PT. Global Media Perkasa is legitimately represented by Emil Edhie Dharma as Managing Director as Manager and Herdi Yustiadi as Financier.
Article 1
, General Provisions contain the obligations of the parties, the rights of the parties, expert partners as professionals in the field of UMMAR minimarket management and Force Majeure. 19 Ikhwan Abidin Basri,Islam dan Pembngunan Ekonomi, Jakarta: Gema Insani Press 2005, p. 89.
Article 2 , Purpose, The intention is to establish a UMMAR minimarket business
partnership and aims to synergize and obtain business blessings and benefits that are mutually beneficial for the Parties.
Article 3 , Object of Agreement and Scope of Agreement
1. The Object of the Agreement which is cooperated between the Parties is a Minimarket business with the UMMAR Brand (Ummah Market)
2. The Scope of the Agreement which is cooperated between the Parties is a joint business activity of UMMAR minimarket at the location in the Fatmawati Post Office, South Jakarta.
Article 4
, Obligations & Rights of First Parties
Article 5 , Obligations & Rights of Second Parties Article 6 , Equity Participation, The Parties agree that the total paid up capital is
Rp.271,100,000, - (Two Hundred Seventy One Million Hundred Thousand Rupiah) with the details of the capital of the Parties as follows: a.
First Party amounting to Rp. 135,550,000, - (One Hundred Thirty Five Million and Fifty Thousand Rupiah) equivalent to 50% of the total capital; b. Second Party amounting to Rp. 135,050,000, - (One Hundred Thirty Five Million Fifty Thousand Rupiah) equivalent to 50% of the total capital.
Article 7
, Profit Sharing, The Parties agree to implement a Profit Sharing System in this collaboration provided that it has agreed that the distribution of business profits is as follows: a.
First Party gets a percentage of profit sharing of 75% of all net proceeds from the shares which will be distributed by 35% to PT. Pos Indonesia as the owner of the location, 15% for the management of UMMAR and 25% for the proportion of capital deposited by the First Party; b. The percentage of profit sharing for the First Party will be divided again if there are
UMMAR Partners in 1 community in accordance with the proportion of investment of each UMMAR Partner; c.
The Second Party gets a percentage of the profit sharing of all net profits from the Minimarket business profit of 25%.
Article 8 , Division of Losses a.
Loss of business capital without negligence from the First Party as manager, the loss will be borne by the Second Party.
b.
The loss of business capital due to negligence of the First Party as the manager and evidenced by the intentional or managerial element violating the specified requirements, the loss will be borne by the First Party as the manager.
Article 9 , Failure and Sanctions a.
Negligence is a deliberate action which can be proven where the First Party does not carry out the obligations that should be carried out.
b.
The form of sanctions given in the form of: 1)
Verbal warning 2)
Written warning 3)
Termination of agreement by the Second Party with obligations for the First Party to return all business capital that has been received.
Article 10 , Term and End of Agreement 1.
The term of this Agreement is for 4 (four) years from the date of signing this Agreement; 2. The term of this Agreement can be extended based on the agreement of the Parties, before the term of the agreement expires;