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Head of the Legal Aid Bureau of the Ministry of Finance (MoF) Tio Serepina Siahaan giving a statement on behalf of the Government in a follow-up hearing of the judicial review of the Pension Funds Law, Tuesday (23/10) in the Plenary Courtroom of the Constitutional Court. Photo by Humas MK/Ganie.

The regulation on the institution authorized to examine the financial statements of pension funds is the examination authority with the aim of fostering and supervising the pension funds financial institution in general by the Pension Funds Law given to the Minister of Finance. Currently with the enactment of Law No. 21/2011 on Financial Services Authority 4 (OJK Law), this authority has been transferred to OJK. 

This was stated by the Head of Legal Aid Bureau of the Ministry of Finance of the Republic of Indonesia, Tio Serepina Siahaan, in a follow-up hearing on the Law No. 11/1992 on Pension Funds held on Tuesday (23/10) in the Plenary Courtroom of the Constitutional Court. Serepina also revealed that the Government was of the opinion that the Petitioner\'s constitutional rights have not been impaired by the norms reviewed in the case of the a quo petition. This is because the a quo petition, in essence, does not question the articles of the norms requested for review, but only concerns with the practical implementation of the norms. "So it cannot be concluded that these norms contradict the 1945 Constitution and cause constitutional harm to the Petitioner," Serepina explained before the panel of justices led by Chief Justice of the Constitutional Court Anwar Usman. 

Serepina also explained the audit conducted by the Supreme Audit Agency (BPK) due to a request from the Attorney General\'s Office to determine whether or not there was state finance loss in the examination of the Petitioner. The authority of BPK, she added, in determining the state\'s losses were in accordance with the legal considerations of the Constitutional Court in Decision No. 31/PUUX/2012 and Circular of the Supreme Court No. 4 of 2016. "Based on those, it is legally grounded that the Chief Justice of the Constitutional Court who examined and heard the case of the a quo petition wisely stated that the Petitioner\'s petition could not be granted," she explained. 

OJK or Public Accountant

In addition, Serepina revealed that every pension fund manager must report through financial audits. The Pension Funds Law provides an option for the OJK whether to conduct a financial audit directly or to request a non-bank financial services institution to conduct an audit. In accordance with OJK Regulation No. 1/POJK.05/2014, OJK can conduct an audit with a team consisting of OJK employees, other parties appointed by OJK, or a combination of both. Furthermore, Serepina said that in the framework of the examination, the Petitioner in his petition requested that the a quo law be interpreted as the institution authorized to examine the financial statements of pension funds be a public accountant. Regarding this matter, the Government was of the opinion that public accountants can carry out examination if OJK be appointed in the matter. By interpreting the appointment of the public accountant, the OJK is an institution that still acts as a supervisor of pension funds. 

"But the public accountant will replace the function of OJK if they are appointed to conduct financial audits of pension funds. If [they are] not appointed, it will hinder OJK\'s duties. So, the authority to conduct examination is necessary from the OJK to guarantee real benefits for the community in facing retirement," Serepina explained. 

Thus, Serepina added, the a quo norm is not multi-interpretive because public accountants who conduct audits aim to provide fairness to the financial statements and not to provide legal certainty. She also explained that the Elucidation to the Pension Funds Law was aimed at managing pension funds contributed by employers and employees. This allows an accumulation of funds which then results in peace of mind for employees in old age. These funds act as a source of funds based on its own ability to maintain national development, namely improving domestic development resources including the management of pension funds. 

"One of them is for the community to prepare for retirement. Therefore, the a quo law is urgently needed and is expected to bring healthier fund growth and improve the welfare of the community," explained Serepina, accompanied by the Director of Legislation Litigation of the Law and Human Rights Ministry Ninik Hariwanti representing the Government. 

Muhammad Helmi Kamal Lubis, an individual citizen, had 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. According to the Petitioner of case No. 59/PUU-XVI/2018, the a quo articles had caused uncertainty related to the institution(s) authorized to audit the financial statements of pension funds, whether it is BPK or public accountants.

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. (Sri Pujianti/LA/Yuniar Widiastuti)

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