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Professor of Criminal Law of the Faculty Law of Gadjah Mada University, Eddy O.S Hiariej, as an expert presented before the Constitutional Court in the judicial review of Law on the Prevention and Eradication of Money Laundering (AML Law), Monday (7/1) in the Plenary Courtroom of the Constitutional Court. Photo by Humas MK/Ganie.

Further judicial review hearing of Law Number 8 of 2010 on the Prevention and Eradication of Money Laundering (TPPU Law) was held by the Constitutional Court (MK) on Monday (7/1) afternoon. The hearing of Case Number 74/PUU-XVI/2018 was scheduled to hear testimony from expert, Professor of Criminal Law, Faculty of Law, Gadjah Mada University Eddy O.S Hiariej. 

According to Hiariej, Article 74 and the Elucidation to Article 74 of the TPPU Law contradict each other. On the one hand, investigators of criminal offenses originate not only from the National Police, but other civil service investigators (PPNS) in accordance with their respective laws. "[It is] like criminal offenses in the forestry sector where the investigator is a forest police officer, or criminal offenses in fisheries whose investigators are from the Ministry of Maritime Affairs and Fisheries and the Navy. On the other hand, the elucidation to Article 74 limits investigators of criminal offenses only to the National Police, the Prosecution Office, the KPK, BNN, and the Directorate General of Customs and Excise," he explained. 

Hiariej elaborated on Article 74 of the TPPU Law that reads, “The investigation of money laundering crime shall be conducted by the investigator of the predicate offense in accordance with the provision of the criminal procedure law and the provision of law and regulations, unless otherwise stipulated therein.” The elucidation to the article 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.”

Hiariej said that the provision of Article 74 of the TPPU Law and its elucidation are not only a matter of legal certainty in the sense that there are contradictions between the article and its elucidation. However, even more than that, it will bring disorder in law enforcement because technically and juridically the investigation of forestry and fishery crimes as criminal offenses from money laundering is considered invalid if it is carried out by the PPNS of the two agencies because their legality as PPNS is not recognized by the Elucidation to Article 74 of the TPPU Law. 

Hiariej explained that Article 2 of the TPPU Law states that the proceeds of crimes are assets acquired from criminal acts of corruption, bribery, narcotics, psychotropic substances, labor smuggling, migrant smuggling in banking, capital markets, insurance, customs, excise, human trafficking, and so on. 

In reality, Hiariej said, not all economically-motivated crimes are mentioned expressive verbis in the a quo article. The non-limiting provision of the a quo article is contained in letter z that reads, "Other criminal acts treated with imprisonment for 4 (four) years or more." Historical interpretation of "4 years" solely follows the Convention of Transnational Organized Crime, which justifies that crimes treated with imprisonment for 4 years or more are serious crimes. 

"This means that the 4-year measure is more on the seriousness of the crime and not on economic motives as intended and aimed at by the Law on Prevention and Eradication of Money Laundering," Eddy said to the panel of justices led by Chief Justice Anwar Usman. 

Witness Accounts

During the hearing, a number of witnesses for the Relevant Party were also presented, one of which was Arief Indra Kusuma Adhi, Head of the Sub-Directorate of Investigation, Directorate of Violation Management, Directorate General of Marine and Fisheries Resources Surveillance (PSDKP) of the Ministry of Maritime Affairs and Fisheries. Arief explained, Article 2 letter y of the TPPU Law states that one of the proceeds of crime is assets acquired from criminal offenses of maritime affairs and fisheries, but Fisheries PPNS is not mentioned as TPPU Investigator. 

Arief added that Article 3, 4, and 5 of the TPPU Law also stated that there were offenses on assets resulting from criminal offenses in the fisheries sector such as transferring, placing, and spending. There were also the actions of the suspects aimed at hiding or disguising the results of criminal offenses in the fisheries sector. 

Arief also explained the multi-door system approach in maritime and fisheries. The approach is a law enforcement approach to the series and combination of criminal offenses related to crimes in maritime affairs and fisheries that rely on various laws and regulations. "The multi-door approach is a form of legal breakthrough that has broken down the use of a single legal regime," he said. 

The Indonesian Anti-Money Laundering Institute (LAPI), Auriga Nusantara Foundation, Charles Simabura, Oce Madril, and Abdul Ficar Hadjar are Petitioners who had requested the judicial review of Article 2 paragraph (1) letter z and the Elucidation to Article 74 of the Prevention and Eradication of Money Laundering (PPTPPU Law). One article and one elucidation to Law No. 8, according to the Petitioners, contradict the 1945 Constitution for several reasons. First, the conflict arose 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. (Nano Tresna Arfana/LA/Yuniar Widiastuti)

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