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Expert for the Petitioners Ratno Lukito explaining mixing of authority of OJK in the judicial review hearing of the Financial Services Authority, Monday (18/2/2019). Photo by Humas MK/Ganie.

JAKARTA, Public Relations of the Constitutional Court—Provision on investigative authority of the Financial Services Authority (OJK) was deemed not providing legal certainty, by Gadjah Mada University Business Professor Nindyo Pramono in the judicial review hearing of Law Number 21 of 2011 on Financial Services Authority (OJK Law) against the 1945 Constitution on Monday (18/2/2019) in the Plenary Courtroom of the Constitutional Court.

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." 

Nindyo as expert for the Petitioners elaborate some reasons that the provision on investigative authority had caused legal uncertainty. One of them being that the investigative authority of the OJK was supposed to be that of the Police or civil service investigators (PPNS), as stipulated in Article 6 of the Criminal Procedure Code (KUHAP). This, he added, would trigger conflict between Police investigators and OJK PPNS officials, who could investigate within their function as banking and non-banking inspectors.

Nindyo considered the investigative authority of the OJK strange. He said that even though the institution had that authority, its employees did not have the authority to investigate. This, he added, was not in accordance with the integrated criminal law system.

For Nindyo, OJK\'s authority in the examination and investigation process should be within the domain of state administrative law. "We can observe from the authority of the Business Competition and Supervision Commission (KPPU), which was adjudicated by the Court in 2016," he explained.

In addition, Nindyo also mentioned an OJK-like institution in another country that did not have investigative authority. He considered it strange that the OJK in Indonesia had that authority. "In the UK, there is the Financial Service Authority [(FSA)] that has the authority to investigate. But because it didn\'t work effectively, [the authority] was returned to the Bank of England," he said.

Mixing of Authority

Another expert for the Petitioners, Ratno Lukito, said that the OJK model as applied in Indonesia was unusual. This is because the OJK combines the authority of administrative oversight and the investigation that are pro justitia. "In other countries, financial authorities do not mix the two authorities. The authority to investigate is given to regular law enforcement or special institutions that have the authority to investigate," he explained.

On the other hand, he added, the OJK model in Indonesia had the potential to cause overlap between OJK and law enforcement agencies such as the Police.

The Petitioners had previously argued that their constitutional rights were violated by the enactment of Article 49 paragraph (3) of the OJK Law. They claimed that in carrying out their authority, civil service investigators (PPNS) had the authority in accordance with the law, which was their respective legal basis, and the implementation of their duties was 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." The Petitioners questioned that the investigative authority held by OJK Article 49 paragraph (3) of the OJK Law was not linked to the Criminal Procedure Code (KUHAP). It states that the OJK PPNS are authorized to 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. 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. (Arif Satriantoro/LA/Yuniar Widiastuti)

 

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