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Ahmad Bay Lubis as legal counsel of the Petitioner delivering the principal points of the judicial review petition of the Pension Funds Law, Wednesday (18/7) in the Plenary Courtroom of the Constitutional Court. Photo by Humas MK/Ganie.

The Constitutional Court held the preliminary hearing of the judicial review of Law No. 11/1992 on Pension Funds on Wednesday (18/7) in the Plenary Courtroom of the Constitutional Court. Muhammad Helmi Kamal Lubis, an individual citizen, claimed to have experienced specific and actual damages due to the enactment of Article 14 juncto Article 52 paragraph (1) letter a and paragraph (4) of the Pension Funds Law, which regulates the institution authorized to audit pension funds financial statements. 

Article 14 of the Pension Funds Law reads, “Financial report of Pension Fund shall be audited annually by public accountant appointed by supervisory board.” Article 52 paragraph (1) reads, “Every Pension Fund shall submit to the Minister periodic report on its activity, consisting of: a. financial report that has been audited by public accountant.” Article 52 paragraph (4) reads, “For the purpose of direct examination as referred to in paragraph (2), the Minister can appoint a public accountant and/or an actuary.”

Legal counsel Ahmad Bay Lubis explained that the a quo articles had caused uncertainty related to the institution(s) authorized to audit the financial statements of pension funds, whether it is the Supreme Audit Agency (BPK) or public accountants. The Petitioner was the President Director of the Pertamina Pension Funds (DP Pertamina). He is currently serving a sentence for corruption, as discovered by the BPK investigative audit of DP Pertamina in the 2013-2015 fiscal year, which discovered "irregularities" in the placement of DP Pertamina funds in the shares of PT Sugih Energy Tbk on the stock exchange. The Petitioner explained that the results of the investigative audit of Pertamina\'s Pension Funds differed between BPK and public accountants. Whereas, observing the provisions of the a quo articles, it is clear that the Pension Funds Financial Report should be examined annually by a public accountant. In case a direct examination of the Pension Funds is needed, the Minister can appoint a public accountant and/or actuary. 

The Petitioner claimed that the Pension Funds company is an "object of examination" of public accountants as regulated in the Pension Funds Law. Thus, a contrario it can be interpreted that the Pension Funds is "not" the object of the BPK audit. In other words, BPK is not authorized to constitutionally audit Pension Funds financial statements.

"So [BPK misinterpreted] the authority according to their version. We consider the authority to audit the pension funds, in accordance with the Pension Funds Law, [to belong to] the public accountant. So we need interpretation of this law from the Court, because it is related to the Petitioner\'s constitutional rights," Ahmad explained the case No. 59/PUU-XVI/2018. 

Therefore, the Petitioner requested that Article 14 juncto Article 52 paragraph (1) letter a and paragraph (4) of the Pension Funds Law be declared contradictory to the 1945 Constitution and to not have binding legal force. 

Additional Theories 

In response to the petition, Constitutional Justice Manahan Sitompul asked the Petitioner to include theories that state that pension funds are not included in state finances. "In the Pension Funds Law, the pension funds are not included in the state finances. Well, supporting theories need to be described specifically so that the reason for the petition is stronger," he advised. 

Meanwhile, Constitutional Justice Arief Hidayat asked the Petitioner to re-examine the position and duties of BPK in relation to the matters experienced by the Petitioner, especially those related to pension funds and state finances. "Please understand and clarify which of the Petitioner\'s constitutional rights are [harmed] by the BPK [audit]. Why does the BPK widen or expand its power by examining the pension funds? This affects the petitum, if state assets shall be the object of BPK\'s audit. You could say this must not be interpreted as including the pension funds," he explained. 

Before closing the session, Justice Manahan reminded the Petitioner to submit a revised petition no later than Tuesday, July 31, 2018 at 10:00 WIB to the Registrar\'s Office of the Constitutional Court. (Sri Pujianti/LA/Yuniar Widiastuti)

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