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Ferry Amsari, legal counsel of the Petitioners, explaining that the petition principals in the judicial review of Law Number 8 of 2010 on the Prevention and Eradication of Money Laundering (AML Law), Wednesday (19/9) in the Courtroom of the Constitutional Court. Photo by Humas MK/Ganie.

The preliminary hearing of the judicial review of Law No. 8/2010 on the Prevention and Eradication of Money Laundering (AML Law) was held by the Constitutional Court (MK) on Wednesday afternoon (19/9). The petition registered as case No. 74/PUU-XVI/2018 was filed by the Indonesian Anti-Money Laundering Institute (LAPI), Auriga Nusantara Foundation, Charles Simabura, Oce Madril, and Abdul Ficar Hadjar. 

The Petitioners, represented by Feri Amsari, felt that their constitutional rights were impaired by the enactment of Article 2 paragraph (1) letter z and the Elucidation to Article 74 of the AML Law. Article 2 paragraph (1) letter z of the AML Law reads, “(1) The result of criminal act shall be Assets acquired from the criminal acts as follows: ... z. other criminal acts that are treated with imprisonment for 4 (four) years or more.” Meanwhile, the Elucidation to Article 74 of the AML Law reads, “‘Investigator of the predicate offense’ shall be officials from the institutions authorized by the law to conduct investigations, namely the Indonesian National Police, Prosecutor\'s Office, Corruption Eradication Commission (KPK), National Narcotics Agency (BNN), as well as the Directorate General of Taxes and the Directorate General of Customs and Excise of the Ministry of Finance of the Republic of Indonesia.” Investigators of predicate offense can carry out an investigation into money laundering if they find sufficient preliminary evidence of money laundering when investigating a predicate offense according to their authority.” 

The Petitioners argued that Article 2 paragraph (1) letter z of the AML Law has caused disorder and legal uncertainty because it limits criminal acts that is treated with imprisonment for 4 (four) years or more. Whereas there are other predicate offenses that are treated with imprisonment for under 4 (four) years and involve a large amount of assets, in which there are strong indications of attempts to conceal, disguise these crimes with various modes of money laundering. One of the criminal acts treated with imprisonment for under 4 (four) years is copyright crimes.

"One article and one elucidation of Law No. 8, in our opinion, contradict the 1945 Constitution for several reasons. First, the conflict arises because in Article 33 paragraph (4) of the 1945 Constitution, it is stated that the national economy is organized on the basis of economic democracy upholding the principles of togetherness, efficiency with fairness, sustainability, environmental insight, self-sufficiency, and by keeping balance in the progress and unity of national economy," explained Feri before the panel of justices led by Constitutional Justice Manahan M.P. Sitompul. 

According to the Petitioners, the a quo articles have caused efforts to eradicate money laundering to  not be carried out optimally because they limit the reach of institutions authorized to carry out research and investigations on money laundering. 

If observed, Feri added, actually money laundering based on the general elucidation to Law No. 8 is a criminal act that threatens the stability and integrity of the economic and financial systems. In this context, Article 2 paragraph (1) letter z and the elucidation to Article 74 cause the efforts to eradicate money laundering to not be optimal. 

"In our opinion, these two articles cause confusion and contradiction with several articles in the 1945 Constitution. If observed, Article 2 paragraph (1) letter z of Law Number 8 can be said to cause legal uncertainty. Because it reads Article 2, the proceeds of crime are assets obtained from other criminal acts that are treated with imprisonment of 4 years or more," Feri said. 

For that reason, in the petitum, the Petitioners requested that the Court declare Article 2 paragraph (1) letter z of Law No. 8/2010 on Prevention and Eradication of Money Laundering in contrary to the 1945 Constitution insofar as it is not interpreted "... other criminal acts that are treated with imprisonment for 1 year or more." In addition, the Petitioners requested that the Court state the explanation of Article 74 of the same law in contrary to the 1945 Constitution insofar as it is not interpreted "’investigator of the predicate offense’ shall be officials or institutions authorized by the law to conduct investigations." 

Legal Standing

With respect to the Petitioners\' arguments, Constitutional Justice Manahan M.P. Sitompul highlighted the Petitioners’ legal standing and the arguments of the petition. He requested that the Petitioners revise the losses experienced in conjunction with their legal standing. 

"In case of money laundering, the articles of association and bylaws may more clearly indicate the vision, mission, or duties of [the Auriga Nusantara Foundation] and its objectives. If Petitioners III, IV, V are educators, individuals but educators, [you] can explain more the relationship between this norm and [your] profession in the three pillars of higher education," he added. 

Meanwhile, Constitutional Justice Suhartoyo observed the format of the petition. He requested that the Petitioners simplify it as to be easily understood. "In terms of the format of the petition, I think because you familiar with the Court, there is no problem. [I suggest] that the petition be more direct and simple and easy to understand because [it] is not only read by the justices and parties in the Constitutional Court. A simpler petition will be more easily understood by the community for every case that is filed with the Constitutional Court," he said. (Nano Tresna Arfana/LA/Yuniar Widiastuti)

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