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The Petitioners\' attorney conveying the subject of the petition in the preliminary judicial review hearing of Law Number 21 of 2011 on the Financial Services Authority, Tuesday (18/12) in the Courtroom of the Constitutional Court. Photo by Humas MK/Ifa.

The Constitutional Court (MK) held a preliminary judicial review hearing of Law Number 21 of 2011 on Financial Services Authority (OJK Law) against the 1945 Constitution on Tuesday (18/12). The case registered as No. 102/PUU-XVI/2018 was petitioned by lecturers Yovita Arie Mangesti, Hervina Puspitosari, Sura Pria Priambada, and Ashinta Sekar Bidari. The Petitioners feel that their constitutional rights have been harmed or are potentially harmed by the enactment of Article 1 number 1 and Article 9 letter c of the OJK Law, especially along the word "investigation." 

According to the Petitioners, in carrying out their authority, civil service investigators (PPNS) have the authority in accordance with the law, which is their respective legal basis and in the implementation of their duties it is under the coordination and supervision of police investigators. This is stipulated in Article 7 paragraph (2) of the Criminal Procedure Code (KUHAP). However, according to the Petitioners, in relation to the investigative authority granted by the OJK Law to the OJK PPNS, there is no provision that explicitly states, "The authority of investigation as referred to in paragraph (2) is carried out in accordance with the provisions of criminal procedural law," or at least, "Civil service investigators coordinate with the Indonesian National Police Investigators." 

Husdi Herman as attorney questioned the investigative authority held by OJK in Article 1 number 1 of the OJK Law. It is included in the broad scope of supervisory duties as stipulated in the norms of Article 9 letter c of the OJK Law. 

"The investigative authority is carried out by investigators as regulated in Article 49 paragraphs (1) and (2) of the OJK Law. Furthermore, OJK civil service investigators (PPNS) are authorized as stipulated in Article 49 paragraph (3) of the OJK Law. The position of PPNS in the criminal justice system is recognized because it is regulated in the Criminal Procedure Code, in Article 6 paragraph (1) letter b," he explained in the session chaired by Constitutional Justice Arief Hidayat. 

In carrying out their authority, said Husdi, the PPNS is in coordination and supervision of the National Police investigation and is regulated in Article 7 paragraph (2) of the Criminal Procedure Code (KUHAP). Unfortunately, in Article 49 paragraph (3) the OJK does not associate itself with the Criminal Procedure Code. The article states that the OJK PPNS are authorized to ask for help from law enforcement officials. "It means, if it is not needed, the OJK PPNS can carry out investigations without coordinating or asking for help from other law enforcers, namely police investigators," he said firmly. 

The Petitioners stressed observing the authority of the OJK investigators as stipulated in Article 49 paragraph (3) of the OJK Law, there are some norms that violate the principle of due process of law and can lead to arbitrariness by OJK investigators. They argued that Article 1 number 1 and Article 9 letter c of the OJK Law, especially the word "investigation," which grants investigative authority is contrary to the principle of due process of law in the criminal justice system, and does not provide fair legal certainty for someone suspected of committing a crime in the financial services sector. 

Based on the argument, the Petitioners requested that the Constitutional Court declare the word "investigation" in Article 1 number 1 and Article 9 letter c of the OJK Law contrary to the 1945 Constitution of the Republic of Indonesia and does not have binding legal force. 

Justices’ Recommendations 

Responding to the petition, Constitutional Justice Saldi Isra requested that the petition be summarized. In addition, he suggested that the argument regarding the Criminal Procedure Code not be verbose. Meanwhile, he considered the legal standing not specific enough. "There is a research lecturer who feels that his constitutional rights have been harmed; that is not enough because it is not specific. The issue of investigation has been declared constitutional in a previous decision. If [you intend to] question the same issue, [you must provide] stronger arguments," he stressed. 

While, Constitutional Justice Manahan M.P. Sitompul also requested that the legal standing be strengthened. "That needs to be further elaborated, in my opinion. First, it has to do with the legal standing of the Petitioners who have taken part in education, for example. Also, [in his duty as advocates, for example]," he explained. (Arif Satriantoro/LA/Yuniar Widiastuti)

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