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Head of the Legal Aid Bureau of the Ministry of Finance Tio Serepina Siahaan representing the Government to give statement in the judicial review hearing of Law Number 21 of 2011 on the Financial Services Authority, Thursday (7/2) in the Courtroom of the Constitutional Court. Photo by Humas MK/Ifa.

During criminal investigation process in the financial sector, the Financial Services Authority (OJK Law) keeps coordinating with the law enforcement and institutions and/or other parties who have the authority in law enforcement. This was conveyed by the Head of the Legal Aid Bureau of the Ministry of Finance (MoF) Tio Serepina Siahaan in the judicial review hearing of Law Number 21 of 2011 on Financial Services Authority (OJK Law) against the 1945 Constitution on Thursday afternoon (7/2/2019).

“The fact is that in carrying out the investigation process the OJK continues to coordinate with law enforcement agencies and other institutions and/or parties that have authority in law enforcement. This is shown in its effort to establish a legal basis related to prosecutors as law enforcement officers through OJK regulation on investigation, vide Article 6 of the OJK regulation on investigation, as well as referring to the provisions stipulated in the Criminal Procedure Code (KUHAP),” explained Serepina in the session presided over by Chief Justice Anwar Usman.

His statement at the same time denied the argument of petition No. 102/PUU-XVI/2018 filed by by lecturers Yovita Arie Mangesti, Hervina Puspitosari, Sura Priambada, and Ashinta Sekar Bidari. The Petitioners had previously argued that their constitutional rights had been violated by the enactment of Article 49 paragraph (3) of the OJK Law. The Petitioners questioned the investigation authority in Article 49 paragraph (3) of the OJK Law that does not associate itself with the Criminal Procedure Code. It states that the OJK civil service investigators (PPNS) are authorized to ask for help from law enforcers. This means that if not necessary, the OJK PPNS can carry out investigations without coordinating or asking for help from other law enforcers, namely police investigators. The Petitioners stressed that, observing the authority of the OJK investigators as stipulated in Article 49 paragraph (3) of the OJK Law, some norms violate the principle of due process of law and can lead to arbitrariness by OJK investigators.

Memorandum of Understanding 

Serepina further explained that coordination on measures against criminal acts in the financial services sector was followed up by the OJK by making various memoranda of understanding. In addition, the OJK also made cooperation agreement with several investigative institutions, such as the National Police of the Republic of Indonesia, the Attorney General\'s Office of the Republic of Indonesia, the Directorate General of Tax of the Ministry of Finance of the Republic of Indonesia, and the Finance and Development Supervisory Agency.

“Investigation of criminal acts in the financial services sector carried out by the OJK in coordination with other law enforcement agencies, including the police and prosecutors, is part of the criminal justice system in Indonesia. This is confirmed in Article 49 paragraph (1) of the OJK Law. The a quo article clearly states that special authority as an investigator attached to PPNS is inseparable from the provisions of the Criminal Procedure Code as well as Article 7 paragraphs (2) and (3) of the Criminal Procedure Code,” he said. 

This was confirmed by Nurhaida who represented the OJK Board of Commissioners as the Relevant Party. He said the OJK had made a memorandum of understanding with the Indonesian National Police and other government institutions that were authorized to realize the effective and efficient financial service investigation process. In accordance with Article 47 of the OJK Law, Nurhaida said the OJK had the authority to cooperate with other institutions that have authority in various fields, including in the interests of investigation in the financial services sector. This cooperation is in order to strengthen and realize the effectiveness of synergistic cooperation in the implementation of duties, functions, and authority in the financial services sector. The OJK, he added, had made memoranda of understanding followed by cooperation agreements with several institutions that had investigative functions, including the National Police of the Republic of Indonesia, the Attorney General\'s Office of the Republic of Indonesia, and the Ministry of Finance.

“It is important to highlight that the cooperation that has been established will greatly facilitate the coordination of the investigation so that [it] can be carried out quickly, cheaply, and simply to realize justice, benefit, legal certainty, and to maintain public trust in the financial services sector and financial system stability, which is the mandate of the formation of the OJK as a financial services regulator,” he asserted. 

Referring to Criminal Procedure Code 

Regarding investigation, Nurhaida stated that the OJK referred to the POJK Investigation which generally regulated investigations carried out by OJK investigators, related to alleged criminal offenses in banking, capital market, and/or non-bank financial industries, etc. The regulation can be likened to those in the Indonesian National Police, which regulate technical matters for carrying out the investigative duties and functions. As part of the supervisory function in initiating investigations, the OJK will always carry out supervision of financial service actors first.

“The OJK investigation will be carried out if the OJK has a firm suspicion of a criminal offense in the financial services sector, whose investigation status refers to the Criminal Procedure Code. For information, by the end of January 2019 the OJK has conducted criminal investigations into 22 cases, consisting of 9 permanent/inkracht decisions and 13 cases still in trial,” he asserted.

Before concluding the session, Chief Justice Anwar Usman postponed the session until Monday, February 18, 2019 at 11.00 WIB. The session was scheduled to hear statements of two experts for the Petitioners. (Lulu Anjarsari/Yuniar Widiastuti)

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