JRSSEM 2022, Vol. 01, No. 11, 1804 – 1815

E-ISSN: 2807 - 6311, P-ISSN: 2807 - 6494

DOI : 10.36418/jrssem.v1i11.161 https://jrssem.publikasiindonesia.id/index.php/jrssem/index

THE CUSTOMER PROTECTION OF BAITUL MAAL WA

TAMWIL (BMT) ON ECONOMIC LAW PERSPECTIVE

Wery Gusmansya

Wahyu Abdul Jafar

1,2

State Islamic University Of Fatmawati Sukarno, Bengkulu

e-mail: werygusmansyahh12@iainbengkulu.ac.id

, wahyujafar@iainbengkulu.ac.id

*Correspondence: werygusmansyahh12@iainbengkulu.ac.id

Submitted: 27 May 2022, Revised: 05 June 2022, Accepted: 15 June 2022

Abstract. This study aims to comprehensively determine the customer protection of Baitul Maal

Wa Tamwil (BMT) from an economic law perspective. This study is a literature review, which uses a

normative juridical approach. The data collection technique used in this research is the

documentation technique. At the same time, the analytical technique used in this study is

descriptive qualitative, where the author will describe the data related to Baitul Maal Wa Tamwil

(BMT) in detail and then do an inductive analysis using the perspective of economic law. After

conducting in-depth research, it was concluded that customers who deposit funds at Baitul Maal

Wa Tamwil (BMT) do not receive guarantees from the government (because no law regulates it) if

there is a crisis in BMT. Therefore, if a Baitul Maal Wa Tamwil (BMT) goes bankrupt, then based on

the Civil Code (KUH Perdata), customers who deposit funds in Baitul Maal Wa Tamwil (BMT) are in

the same position as concurrent creditors. As a concurrent creditor, the right to get a refund must

be shared with other creditors after the Baitul Maal Wa Tamwil (BMT) assets are used to settle the

obligations of the Baitul Maal Wa Tamwil (BMT) to the preferred creditor.

Keywords: Baitul Mal Wa Tamwil (BMT); customer protection; economic law.

Wery Gusmansya, Wahyu Abdul Jafar | 1805

DOI : 10.36418/jrssem.v1i11.161 https://jrssem.publikasiindonesia.id/index.php/jrssem/index

INTRODUCTION

Developing banking using sharia

principles, better known as Islamic banks or

Islamic microfinance institutions (LKMS) in

Indonesia, is not a new thing. However,

since 1992, sharia-based financial

institutions have emerged that prohibit the

concept of interest (riba) in their

operations. An important factor behind the

birth of Islamic banks and Islamic

microfinance institutions is the strict

prohibition of Riba in the Al-Qur'an. Riba is

an additional taking, both in buying and

selling transactions and lending and

borrowing in vanity or contrary to the

principle of muamalah in Islam. One of the

Islamic microfinance institutions in a

cooperative is Baitul Maal wat Tamwil

(BMT). Baitul Maal wat Tamwil (BMT) is a

sharia financial institution that operates

using a combination of the concept of

"Baitul tamwil and Baitul maal" with its

operational target focusing on the Small

and Medium Enterprises (SME) sector.

Through the Ministry of Cooperatives

and SMEs, the government said the

development of BMT performance

nationally developed very significantly. The

BMT Cooperative Business is a business

targeted at the lower class according to the

provisions of the regulations. The number

of company employees who have been

fired recently has made the Baitul Maal wat

Tamwil (BMT) business even more

challenging to increase demand for

products and services.

Figure 1. Number of BMT Established

Every Year

Based on the survey, the establishment

of BMT in these three areas of Java shows

almost the same pattern, where the

establishment of BMT significantly

occurred during periods of the financial

crisis, namely 1998, 2004, and 2009. This

fact supports the belief that micro-small

businesses with the resilience to crises

proliferate at times of crisis, encouraging

microfinance institutions to grow and

develop. Especially for 1998, this fact is also

supported by data where the government,

through several related departments, rolled

out several microfinance institution

development programs to open up the

broadest possible access to capital for the

people in running micro-small businesses.

This program aims to anticipate a decline in

economic performance from a decline in

economic growth and an increase in

unemployment due to the crisis (Sakti,

2013); (Mau & Ulyukaev, 2015); (Razmi,

Rapetti, & Skott, 2012); (Shahbaz, Van

Hoang, Mahalik, & Roubaud, 2017);

(Rafindadi & Ozturk, 2016).

However, the development of this BMT

was not followed by Precise regulation and

the legal basis. BMT has distinctive

characteristics when compared to other

existing financial institutions, because in

addition to having a commercial mission

(Baitut Tamwil) it also has a social mission

1806 | The Customer Protection of Baitul Maal Wa Tamwil (BMT) on Economic Law Perspective

(Baitul Maal), therefore BMT can be said to

be a new type of microfinance institution.

From the previous ones. Some BMT

take the legal form of Cooperatives, but this

is still an option, not a requirement. BMT

can be established in the form of a Non-

Governmental Organization (KSM), or it can

also be a combined legal entity.

Since its inception, the legality of Baitul

Maal wat Tamwil (BMT) has not existed; it is

just that many BMT choose cooperative

legal entities. Therefore, BMT is subject to

cooperative rules, namely Law No.25 of

1992 concerning Cooperatives which has

been changed to Law No. 17 of 2012.

However, since the existence of Law No. 1

of 2013 concerning Microfinance

Institutions (MFIs), the institutional status

of BMT legal entities has become a

particular problem that burdens BMT. Most

of the existing BMT are cooperative legal

entities with small and medium scale

businesses, and the business scope covers

several cities/districts, even across

provinces. However, with the regulation of

BMT as an MFI as stated in Law no. 1 of

2013, the breadth of BMT business

coverage is limited. BMT must transform

into a bank to expand its business to other

cities/regencies.

The impact of this new regulation has

made it difficult for many BMT to develop,

and even some BMT have gone bankrupt

and have to return money from their

customers. For example, the BMT Fi

Sabilillah in Wonogiri, BMT Perdana Surya

Utama in Malang, BMT Global Insani in

Cirebon, BMT Amanah Ray in Medan, BMT

Insan Bina Mandiri in Banyumas, BMT Dana

Mulya Syariah in Lampung, BMT Lestari

Muamalat in Tegal and other cases. These

cases are generally about depositors who

have difficulty taking their deposits, BMT

administrators who run away because of

cases of embezzlement of funds or fraud,

the number of which is not tiny, up to tens

of billions. Bankruptcy in BMT caused many

legal problems if it was not resolved

correctly and adequately. Based on this

fact, the writer is interested in conducting a

study related to the protection of Baitul

Maal wat Tamwil (BMT) customers from the

perspective of economic law.

METHODS

This study is a literature review, which

uses a normative juridical approach. The

data collection technique used in this

research is the documentation technique.

At the same time, the analytical technique

used in this study is descriptive qualitative,

where the author will describe the data

related to Baitul Maal Wa Tamwil first in

detail and then do an inductive analysis

using the perspective of economic law.

RESULTS AND DISCUSSION

A. The Understanding Of Baitul Maal

Wa Tamwil

In language, baitul mal means a

house of funds, and baitul tamwil

means a business house. Baitul mal was

developed based on a history of its

development, namely from the

prophet's time to the middle ages of

Islamic development. From the

description of BMT above, it is

explained that BMT is an elementary

institution as an Islamic financial

institution in activating the increase in

Wery Gusmansya, Wahyu Abdul Jafar | 1807

the development of community

economic activities based on sharia

laws in every activity and activity. a

comprehensive understanding can be

drawn that BMT is a business

organization that also acts as a social

center. The social role of the BMT

institution can be seen in the definition

of baitul maal, while the business role

of BMT can be seen from the definition

of baitul tamwil.

Baitul Maal Wat Tamwil (BMT)

functions to collect and distribute funds

to the public like banks or other

financial institutions. BMT was founded

with the idea of flexibility in reaching

the lower classes of society, namely

small people's economic institutions

because most of them are small traders

who cannot take advantage of credit

facilities from conventional banks to

develop their businesses, is due to the

complex procedures of conventional

banks and weaknesses possessed by

small traders and small entrepreneurs

in terms of management, marketing,

and guarantees which are essential

factors for bank assessment.

Sharia microfinance institution has

different characteristics From similar

financial institutions. However, it

specifically has the following

characteristics:

1. Business-oriented, seeking mutual

profit, increasing The maximum

economical utilization for members

and society.

2. Not a social institution, but valuable

for the effective collection and

administration of zakat, infaq, and

alms funds for the welfare of the

people.

3. Grown from the bottom based on

the participation of the Surrounding

community.

B. History and Legal Basis of Baitul Maal

Wa Tamwil

The development of BMT in

Indonesia began with establishing Bank

Muamalat Indonesia (BMI) in 1992,

which in practice BMI in its operational

activities are based on sharia values.

After establishing BMI, the opportunity

arose to establish banks with sharia

principles, but the operationalization of

BMI did not reach small and medium-

sized businesses. Thus, efforts emerged

to establish banks and microfinance

institutions, such as Sharia People's

Financing Banks (BPRS) and BMT, which

aimed to overcome operational barriers

in the regions. This condition is the

background for the emergence of BMT

to reach local communities to remote

rural areas. The development of BMT

itself results from an initiative from the

Small and Medium Business Incubation

Center (PINBUK), which is a working

body formed by the Small and Medium

Business Incubation Foundation

(YINBUK). YINBUK itself was formed by

the General Chairperson of the

Indonesian Ulema Council (MUI), the

General Chairperson of the Association

of Indonesian Muslim Intellectuals

(ICMI), and the President Director of

Bank Muamalat Indonesia (BMI)

(Mursiad, 2018).

Legally, BMT is under the umbrella

of cooperatives, but the operating

system is not much different from

1808 | The Customer Protection of Baitul Maal Wa Tamwil (BMT) on Economic Law Perspective

Sharia Banks, so the products

developed in BMT are like those of

Sharia Banks. Meanwhile, Islamic banks

have a juridical basis in law on Islamic

banking, namely Law no. 21 of 2008

concerning Islamic banking, so that a

strong legal legitimacy was born there

as a shelter. Because it is a cooperative

legal entity, BMT must comply with Law

Number 25 of 1992 concerning

Cooperatives and Government

Regulation Number 9 of 1995

concerning the implementation of

savings and loan businesses by

cooperatives. It is also emphasized by

KEP.MEN Number 91 of 2004

concerning Sharia Financial Services

Cooperatives. This law serves as an

umbrella for the establishment of BMT

(Shari'ah Microfinance Institution)

(Muslim Tanjung & Novizas, 2021).

In Indonesia, policies regarding

cooperatives have existed for a long

time, along with the existence of

cooperatives. In 1958 the policy on

cooperatives was regulated in Law no.

79 of 1958. Law no. 79 of 1958 entitled

cooperative association. Then in 1965,

the policy on cooperatives was

renewed with the issuance of Law No.

14 of 1965 with the title Law on

Cooperatives. In 1992, changes were

made to the Cooperative Law,

specifically Law no. 25 of 1992, then in

2012, the Cooperative Law was again

amended in line with the development

of cooperative activities in Indonesia.

The birth of Law no. 17 of 2012

Regarding cooperatives, there are

many pros and cons because many

different things are tried to be

displayed to strengthen Indonesian

cooperatives. Among these differences.

Table 1. Differences in the Law on Cooperatives

POINT OF DIFFERENCE

Law No. 25 of 1992

Law No. 17 of 2012

Cooperatives as business entities and

legal entities

Cooperative as a legal entity

There is no consistency

Of words in describing the definition

of cooperatives, namely, on the other

hand, cooperatives are described as

business entities, but on the other

hand, cooperatives are described as

legal entities.

There is a word consistency that

describes the definition of a cooperative as

a legal entity

It does not explain more

the composition of capital owned by

cooperatives in terms of separating

the wealth of its members

describe more clearly

the composition of the capital owned by

cooperatives in terms of the separation of

the wealth of its members

Outline the Scope

Of Cooperatives Only Limited to the

Elaborating a broader definition which

States that cooperatives cover not only

Wery Gusmansya, Wahyu Abdul Jafar | 1809

Economic Sectors.

economic needs but also economic, social,

and cultural fields.

Describe the principles of

Cooperatives as guidelines adopted by

cooperatives.

It not only outlines

the cooperative principle as a guide for

carrying out operational activities but is also

guided by the values of

Elaborating the principles of

Cooperatives emphasize the nature of

the membership and management of

cooperatives and the remuneration of

the remaining business results

obtained.

Elaborating the cooperative principle

Places more emphasis on excellent service

as a cooperative principle and revises

remuneration from the remaining business

results obtained because this is not

considered a cooperative principle that

emphasizes the meaning of service.

outlines the definition

Of cooperatives based on the principle

of kinship.

does not describe the definition

of cooperatives based on the family

principle

One of the rules regarding the legal

entity status of BMT is the Decree of the

Minister of Home Affairs of the

Republic of Indonesia, Director General

of Regional Development Number

538/PKKN/IV/1997 dated April 14,

1997, concerning the Status of Legal

Entities for Sharia Financial Institutions.

According to these provisions,

alternatives to the legal entity status of

BMT include an Autonomous Business

Unit from an existing KUD (Village Unit

Cooperative), the KUD (Village Unit

Cooperative) itself, if the BMT is

financially and institutionally feasible,

or as an autonomous business unit

from a cooperative. Existing ones such

as pesantren cooperatives and sharia

savings and loan cooperatives.

BMT with cooperative legal entities

can obtain a business license from the

Ministry of Cooperatives and SMEs and

are included in the KJKS or Cooperative

JKS Unit. This is based on the Decree of

the Minister of Cooperatives and SMEs

Number 91/Kep/M.KUKM/IX/2004

concerning Guidelines for

implementing Sharia Financial Services

Cooperative Business Activities (KJKS).

BMT incorporated as cooperatives can

engage in financing, investment, and

savings following sharia principles. The

business activities of KJKS and UJKS

Cooperatives include

withdrawing/collecting funds and

redistributing these funds in the form of

financing/receivables. In addition, KJKS

and UJKS Cooperatives can also carry

out 'maal' activities or activities to

collect and distribute zakat, infaq, and

sadaqah funds (ZIS). In other words,

KJKS and UJKS Cooperatives have

similar characteristics to BMT. As a

sharia financial institution, KJKS or BMT

must maintain the credibility and trust

of members and the broader

community in general.

1810 | The Customer Protection of Baitul Maal Wa Tamwil (BMT) on Economic Law Perspective

C. Products and Services at Baitul Maal

Wa Tamwil

Baitul Maal wat Tamwil (BMT) is

expected to become an institution that

supports economic activities for the

lower class, with a sharia-based BMT

economic system; of course, BMT is

much different from conventional

institutions prioritize the interest

system (usury), which has clear laws.

Haram in Islamic economics can

contain usury, namely, profits that arise

without any risk in acting, business

results appear without any costs and

only with time. The interest system is

also very detrimental to the community

because the interest payments made

remain as promised without

considering whether the project carried

out by the customer is profitable or not

(Sudjana & Rizkison, 2020).

As a sharia financial institution that

operates in the micro sector, BMT

It has a significant function and role

in improving the people's economy.

The principles of BMT can work well if

these functions are carried out with

good governance and procedures.

Muhammad Ridwan explained that

BMT must carry out five functions:

Identity, mobilize, organize, encourage,

and develop the potential and

economic potential of members,

groups of mu'amalat members, and

their working areas. Second; Improving

the quality of member human

resources and focusing on becoming

more professional and Islamic so that

they are more complete and resilient in

the face of global competition. Third; To

mobilize and mobilize the potential of

the community in order to improve the

welfare of members. Fourth; Become a

financial intermediary between people

who have excess assets as shahibul

maal and people who lack property as

mudharib, especially for social funds

such as zakat, infaq, alms, endowments,

grants, and others. Fifth; Become a

financial intermediary (financial

intermediary) between owners of

capital (shahibul maal), both as

investors and depositors and users of

funds (mudharib) for productive

business development (Mursiad, 2018).

The process of financing or

providing credit at BMT is carried out

with several sharia principles; even if

this financial institution is small and

micro, the application of sharia must be

carried out. There are several principles

in Islamic financing: Four general

prohibitions to consider when

structuring Islamic financing on: (i)

Interest in the form of money, for the

use of money (riba), interpreted as Any

pre-determined prohibition or

calculated as guaranteed other than

concerning actual profits. Generated,

(ii) gambling, speculation, and other

activities the outcome of which is

uncertain, this would include

transactions in futures and options, (iii)

using or dealing with certain prohibited

commodities, for example, alcohol, and

(iv) uncertainty in contracts (gharar)

(Muljadi, 2014).

There are several products that BMT

offers to its customers, including:

1. The first product is a fund-raising

product, namely in wadiah savings

and mudhorobah deposits. Wadiah

Wery Gusmansya, Wahyu Abdul Jafar | 1811

deposits are deposits or deposits

that customers or members can

withdraw at any time by issuing

securities for book

transfers/transfers and other

payments. Wadi'ah deposits are

divided into 2 (two), namely

wadhi'ah Amanah (deposited funds

such as zakat, infaq, and shodaqoh)

and wadhi'ah yadhomanah

(deposits that will receive a bonus

from the bank if the bank benefits

from the use of customer funds).

Mudharabah deposits are fund

owners whose deposits or

withdrawals can be made following

a pre-agreed contract or

agreement. The types of savings

products that use mudharabah

contracts include Eid al-Fitr savings,

Eid al-Qurban savings, Hajj savings,

Education savings, Health Savings,

and others .

2. The second product is a Funds

Channel product in the form of

financing or investment, with the

principle of buying and selling

(murabahah), profit-sharing

(mudharabah and musharaka), and

qardhul Hasan financing, which is

we carried out based on sharia

principles. In this context, BMT

functions as an institution for

managing and empowering

community funds by establishing

cooperation partners between the

BMT managers and the community.

namely by Collecting public funds

and then redistributing them to the

community (customers) engaged in

the productive business sector and

need financial assistance with the

nature of profit. Examples of this

product are mudhorobah financing,

musyarokah financing, murabahah

financing and Bai' Bitsaman Ajil

financing (Habbibie, 2019); (Adetia

Azmi Tanjung & Affiah, 2022).

Murabahah contract is the sale and

purchase of goods at the cost of

goods plus the agreed profit

margin. According to Islamic law

experts (fuqaha), the meaning of

murabahah is "al-bai bira'sil maal

waribhun ma'lum" which means

buying and selling essential goods

plus a known profit. The fuqaha

characterize murabahah as a form

of buying and selling based on trust

(dhaman buyu" al-Amanah).

According to the National Shari'ah

Council, murabahah is selling an

item by confirming the purchase

price to the buyer, and the buyer

pays it at a higher price as profit.

D. Legal Protection for Baitul Maal Wa

Tamwil Customers

BMT is a financial service institution

with an important role as alternative

financing for MSMEs apart from

banking. However, currently BMT still

has many weaknesses to be able to

develop its business activities. Capital

problems are the main problems faced

by BMT. In addition, the weakness of

the BMT supervision system, the lack of

competent human resources in the field

Sharia cooperatives are problems

that must be resolved immediately.

Public Understanding of the Islamic

1812 | The Customer Protection of Baitul Maal Wa Tamwil (BMT) on Economic Law Perspective

financial system is still shallow, and the

role as Baitul Maal or the role of

depositing zakat, infaq, and alms funds

which are also very low, needs to work

with related parties to solve it (Permana

& Adhiem, 2020); (Sudarsono &

Shiddiqi, 2021).

With the introduction of Islamic

banking in the mid-1990s, these Islamic

financial institutions did not always run

as well as expected. There are several

BMT that have experienced failures in

their operations which have resulted in

neglected customers and BMT are

unable to restore customer rights. At

the end of the year there were many

cases of BMT going bankrupt, and the

impact that would occur was a crisis of

public trust, especially towards BMT.

Discussing about the bankruptcy of

BMT, of course, cannot be separated

from its relationship with customers,

including how the rights of customers

who channel their funds to BMT,

whether the legal protection is

sufficient as expected by the customer

or not (Isnan, 2016). For this reason, it is

necessary to have legal protection for

customers if bad things happen to BMT.

According to Article 1 Paragraph

(15) and (16) of the Regulation of the

Minister of Cooperatives and Small and

Medium Enterprises of the Republic of

Indonesia Number:11/Per/M.KUKM/XII

/2017 concerning the Implementation

of Sharia Financing and Savings and

Loans Business Activities, cooperative

customers are referred to as members

or prospective members. Cooperative

members, in the future referred to as

members, are owners and users of

cooperative services and are recorded

in the member register book.

Prospective Members are

individuals/cooperatives that have paid

off their principal savings payments to

their cooperatives but have not

formally completed the administrative

requirements, i.e., have not signed the

member register book. Legal protection

for cooperative customers is protection

by using legal means aimed at

protecting the interests of cooperative

customers, namely members and

prospective members who are harmed

by cooperatives. The Civil Code can be

used as a legal reference for BMT

cooperative customers, namely

(Nurhadi, 2018):

Table 2. Legal protection of BMT customers

Legal protection

legal protection due

to unlawful acts

Legal protection due to

default.

Use coercive measures.

Article 1365 of the Civil

Code. The article reads:

"every action

against the law that

causes harm to

The legal consequences for

debtors who have defaulted are:

legal penalties or sanctions,

namely: a) the debtor is required

to pay compensation which has

origin 1267 The Civil

Code states that parties

against which the

engagement is not

fulfilled, may choose;

Wery Gusmansya, Wahyu Abdul Jafar | 1813

another person,

obliges the person

who because it's

wrong to issue a loss

to compensate for the

loss "That is, the

elements PMH, namely:

1) there is an unlawful

act;

2) there is an error;

3) there is a

relationship cause and

effect between loss

and action; 4) there is a

loss.

been suffered by the creditor

(Article 1243 of the Civil Code);

b) when the engagement

reciprocally, the creditor can

demand termination or

cancellation of the engagement

through :

judge (Article 1266 of the Civil

Code); c) when the engagement

is to give something, then the

risk shifts to the debtor since

there is a default (Article 1237

paragraph (2) Civil Code); d) the

debtor is required to fulfill the

engagement if it can be done, or

cancellation accompanied by

payment of compensation

(Article 1267 of the Civil Code);

e) the debtor is obliged to pay

court fees if permitted by the

Court, and the debtor found

guilty

forcing the other to

comply with the

agreement,

if it can still be done, or

demand

approval

cancellation,with

reimbursement of costs,

losses, and interest.

Customers who deposit funds both at

banks and BMT (which are generally small

savers) when viewed according to their

position according to The Civil Code are

concurrent creditors, creditors who must

share with other creditors in obtaining their

rights after the assets of the bank or BMT is

deducted for preferred creditors and

particular creditors Others, including

obligations to the State. Customers who

deposit funds at BMT do not receive

guarantees from the government (because

no law regulates them) for their funds if

there is a crisis in BMT. Therefore, if a BMT

goes bankrupt, we must refer to The

provisions are contained in the Civil Code.

The Civil Code places customers are

depositing funds at BMT in the position of

Concurrent creditors. As a concurrent

creditor, the right to get a refund must be

shared with other creditors after BMT

assets are used to settle BMT obligations to

preferred creditors .

CONCLUSIONS

After conducting in-depth research, it

was concluded that customers who deposit

funds at Baitul Maal Wa Tamwil (BMT) do

not receive guarantees from the

government (because no law regulates it) if

there is a crisis in BMT. Therefore, if a Baitul

Maal Wa Tamwil (BMT) goes bankrupt, then

based on the Civil Code (KUH Perdata),

customers who deposit funds in Baitul Maal

1814 | The Customer Protection of Baitul Maal Wa Tamwil (BMT) on Economic Law Perspective 
Wa Tamwil (BMT) are in the same position 
as  concurrent  creditors.  As  a  concurrent 
creditor, the right to get a refund must be 
shared with other creditors after the Baitul 
Maal Wa Tamwil (BMT) assets are used to 
settle the obligations of the Baitul Maal Wa 
Tamwil (BMT) to the preferred creditor. 
 
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Wery Gusmansya, Wahyu Abdul Jafar                                                                               | 1815 
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