The first respondent, the National Shari'a Arbitration Body (Badan Arbitrase Syari'ah Nasional – Basyarnas), had made a decision on 16 September 2009 between the second respondent (PT. Atriumasta Sakti) and the applicant (PT. Bank Syariah Mandiri), ordering the applicant to return to the second respondent IDR 878,791,366. This figure comprised a banking provision cost payment of IDR 350 million, or one per cent of the value of the financing facility worth IDR 35 billion, because the Murabahah agreement between the two parties had been declared invalid by the first respondent; IDR 45,027,000 in project insurance monies; IDR 5,962,700 in upfront employee social security payments; IDR 298,135,000 to the DKI Jakarta Government Construction Structuring and Supervision Services; and instalment repayments of IDR 179,666,666. The applicant was also ordered to return to the respondent any other costs associated, provided those costs could be verified by the Public Accountants' Office. Basyarnas also decided that if the applicant failed to abide by its decision, the respondent could lodge an application with Bank Indonesia (the Indonesian central bank) to hand the applicant an administrative sanction, and reduce the applicant's credit rating.
The court noted that, pursuant to art 70 of Law No. 30 of 1999, as well as the Elucidation of Chapter VII of Law 30, in conjunction with Law No. 7 of 1989 as amended by Law No. 3 of 2006, and Supreme Court Circular No. 8 of 2008, a party to such a dispute may request that a religious court declare a Basyarnas decision null and void. Article 70, however, only applies if: a. the decision was based on the submission of a false document; b. a relevant document was concealed by the opposing party; or c. the decision was based on misleading information. In this instance, the applicant claimed that the first respondent had failed to consider material legal facts to its case, therefore invoking art 70(c). Based on a submission made by the second respondent that the applicant had failed to carry out the second and subsequent stages of liquidation deriving from the Murabahah financing facility, the first respondent had determined that the applicant had defaulted on its agreement with the second respondent. The applicant claimed that the first respondent had ignored the fact that it was actually the second respondent who had defaulted by:
- failing to produce the original building permit and then failing to the applicant with a copy, pursuant to art 3(1) of the Murabahah agreement;
- failing to pay the notary, pursuant to art 3(4) of the agreement; and
- failing to transfer its own self-financing monies, pursuant to art 3(23) of the agreement.
While the second respondent had already shown the applicant a building permit management services contract between it and H. Jayadi Kusumah, as well as proof of payment of a quote for 1 March 2005 for IDR 3,212,500,000 to H. Jayadi Kusumah as a buliding permit enactment management fee, as well as permission for other construction for the Ruko Soho Carbella Square project, the applicant claimed that the first respondent had ignored the fact that the reliability of this quote had not been established. Moreover, the applicant had even requested to see the quote via the Basyarnas secretary, pursuant to trial procedures, but had been denied. This, the applicant claimed, precluded it from carrying out its end of the bargain. In short, the applicant claimed the second respondent had failed to hand over to the applicant its building permit, whereas the second respondent had claimed it had paid IDR 3,212,500,000 to H. Jayadi Kusumah to arrange the building permit and other necessary construction permits.
The applicant also claimed that there was a material disparity between the final draft of the Basyarnas decision and the decision provided to the Central Jakarta Religious Court insofar as the Religious Court had been told that Basyarnas would not accede to claims for damages until their reliability had been verified by the Public Accountant. While the Religious Court declared the Basyarnas decision null and void, the Supreme Court found that the Religious Court lacked the jurisdiction to adjudicate the case, thereby reinstating the Basyarnas decision.
Pursuant to art 67(c) of Law No. 14 of 1985 on the Supreme Court, in conjunction with Law No. 5 of 2004 and Law No. 3 of 2009, the applicant requested the court reconsider (peninjauan kembali) its decision on the grounds that the court had granted more than that sought by the respondents. It alleged that:
- the court had unnecessarily found that the Central Jakarta Religious Court did not have the jurisdiction to adjudicate the case;
- that the Basyarnas decision ordered it to return to the applicant other costs not related to the transaction in question; and
- it had unnecessarily authorised the second respondent to ask Bank Indonesia to sanction the applicant if it failed to comply with its decision.
The applicant also claimed that Basyarnas had made a legal error by directing the secretary to register an official copy of the decision with the Central Jakarta Religious Court registrar, when Law No. 30 of 1999 requires that such decisions be registered with the State Court (Pengadilan Negeri). The applicant also claimed that the Supreme Court, in the first instance, had cited art 55 of Law No. 21 of 2008 on Shari'a Banking, stating that as the dispute was a shari'a banking dispute, the religious courts had jurisdiction, only to then declare the religious courts did not have jurisdiction.
The court dismissed the applicant's review (peninjauan kembali) appeal, ordering it to pay costs of IDR 2.5 million. In doing so, it held that no legal error had been made by the court in the first instance. Rather, that the parties to the dispute had already clearly stated that the dispute would be resolved via arbitration, thereby invoking art 2 of Law No. 30 of 1999, and precluding the state courts and religious courts from having jurisdiction (art 3 of Law No. 30 of 1999). The court also noted that Supreme Court Circular No. 8 of 2008 conflicted with art 59(3) of Law No. 48 of 2009 on Judicial Authority, and had accordingly already been rendered null and void by Supreme Court Circular No. 8 of 2010. Moreover, while the applicant had sought to invoke art 70(c) of Law No. 30 of 1999, it had failed to prove upon what misleading information its opponents' case had rested.