The Imperative of Establishing a Dedicated Taflis Act as Lex Specialis within National Bankruptcy Law: A Siyasah Syar'iyyah Perspective

Abstract

Islamic economic growth generates legal relationships that may end in insolvency, yet Law Number 37 of 2004 offers no regime tailored to sharia contracts, and bankruptcy proceedings remain with the Commercial Court despite the Religious Courts' absolute jurisdiction over Islamic economic disputes (Law Number 3 of 2006). This disharmony affects forum, procedure, contract status, and estate management. Previous studies diagnose this friction or call for consolidated regulation without formulating its design. This study analyzes the urgency of a Taflis Act as lex specialis in national bankruptcy law from the siyasah syar'iyyah perspective through normative legal research with statutory, conceptual, historical, and philosophical approaches. The findings show juridical urgency from normative vacuum and disharmony, sociological urgency from the need for legal certainty, and philosophical urgency from justice, public welfare, the protection of wealth (hifz al-mal), and balanced debtor and creditor interests. The study contributes an integrated regulatory model in which a Sharia Bankruptcy Qualification Test, contract examination, a Sharia Commercial Court within the Religious Courts, and sharia curators operate as components of one system. Under siyasah syar'iyyah, the Act falls within the state's authority to legislate for public welfare and complements the national bankruptcy regime, governing bankruptcy arising from sharia contracts.