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Expert for Government Chairul Huda delivering his statement in the judicial review hearing of Law No. 21 of 2011 on Financial Services Authority, Tuesday (12/3) in the Courtroom of the Constitutional Court. Photo by Humas MK/Rizky.

Criminal procedural law expert Chairul Huda stressed that the investigative authority of the Financial Services Authority (OJK) is not in conflict with the Criminal Justice System in the judicial review hearing of Law No. 21 of 2011 on Financial Services Authority (OJK Law) as an expert for the Government, Tuesday (12/3), in the Courtroom of the Constitutional Court.

Huda said that the OJK Law is an administrative law that also contains criminal provisions, or administrative criminal law. Huda stated that the Criminal Procedure Code (KUHAP) recognizes investigators outside the National Police, that is, civil service investigators (PPNS).

"The Criminal Procedure Code is the grand design of the Criminal Justice System, so the investigative authority of PPNS and the National Police in the OJK does not conflict with the Criminal Justice System," explained the law lecturer of Muhammadiyah University Jakarta (UMJ).

Huda also explained the concept of the OJK as an integrated financial overseer where OJK has administrative law and criminal law authority. For the Petitioners, this is strange and unknown in the field of law. However, he disagrees.

"In law there is the Total Law Enforcement theory. This means that administrative law is the first measure, civil law as the second, and criminal law as the last option in law enforcement," he explained in Case No. 102/PUU-XVI/2018. That means that OJK can be seen as an an Integrated Law Enforcement.

Huda also commented on the authority of the OJK in delegating cases to the Prosecutor\'s Office. The Petitioners refer to the Criminal Procedure Code that places the National Police as monitoring coordinator of case delegation. However, along with dynamic developments, the Customs Law, the Tax Law, and the Immigration Law regulate PPNS to be able to transfer cases to the Prosecutor\'s Office.

"So the Petitioners must not observe the Criminal Procedure Code alone, but also the development of regulations after the Criminal Procedure Code that can also be seen as the Criminal Justice System," he explained. In other words, he said, other laws cannot be ignored. In fact, the Criminal Procedure Code bill will regulate that the monitoring coordinator not only be the National Police, but also PPNS and institutional investigators. Therefore, transfer of cases to the Prosecutor\'s Office is not merely the authority of the National Police.

Finally, Huda emphasized that the OJK Law is an open legal policy carried out by the Government, where the Government believes that it will be more effective to focus financial oversight authority in one institution. Therefore, this law cannot be said to be unconstitutional.

Another expert for the Government Deni Indrayana said that in the context of governance, an independent institution could have a mixed function. Suppose the function of supervision and investigation is in one institution, but on the other hand there are still restrictions—the function of criminal enforcement is not mixed with judicial authority.

"FSA in various countries has the same authority as OJK in Indonesia, which is to serve as an overseer and investigator. For example in Japan, England, and Germany," said Deni, who was Vice Minister of Law and Human Rights in the cabinet of former President Susilo Bambang Yudhoyono.

The judicial review petition of the OJK Law was filed by lecturers Yovita Arie Mangesti, Hervina Puspitosari, Sura Pria Priambada, and Ashinta Sekar Bidari. They argued that their constitutional rights had been or were potentially violated by the enactment of Article 1 number 1 and Article 9 letter c of the OJK Law, especially along the word “investigation.”

They argued that the investigative authority in Article 49 paragraph (3) of the OJK Law was not linked to the Criminal Procedure Code (KUHAP). The article states that when necessary, 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. (Arif S/NRA/Yuniar Widiastuti)

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