SPIN-OFF OF PT BANK SYARIAH NASIONAL (BSN): ANALYSIS FROM THE PERSPECTIVE OF POSITIVE AND SHARIA LAW

Abstract

This study aims to examine the normative framework of dual compliance in the spin-off process of PT Bank Syariah Nasional (BSN) from the Sharia Business Unit (UUS) of Bank BTN, which involves the transfer of assets worth more than IDR 71.3 trillion and 450,000 customers. This process is driven by the regulations of the Financial Services Authority (POJK No. 12 of 2023). This study uses the Normative Law method with the Statute, Concept, and Legal Economic Analysis (EAL) approach, using primary data in the form of Laws, POJK, and DSN-MUI Fatwas. The results of the study conclude that Legal Certainty (Positive Law) and Sharia Validity (Islamic Sharia) require the simultaneous fulfillment of two pillars: 1) Legitimate Corporate Action (through EGMS Approval in accordance with Law No. 40 of 2007 concerning Limited Liability Companies), and 2) Valid Transfer of Customer Contracts. For the Positive Law dimension, the transfer of the contract must be carried out through Contract Novation (Article 1413 of the Civil Code), which from an EAL perspective, functions as a risk mitigation strategy to reduce litigation costs (transaction costs). Simultaneously, for the Islamic Sharia dimension, this contract novation must fulfill the pillars of sighah (ijab/kabul) in Naql al-'Uqud and Hiwalah al-Dayn according to DSN-MUI Fatwa No. 101/2016. This dual compliance shows that the formality aspect of state law (Novation) becomes a normative bridge that validates the aspects of willingness and sharia validity, confirming that failure in one dimension will invalidate the legality in the other dimension.