Constitutional law expert Zainal Arifin Mochtar after giving a testimony in the judicial review hearing of the Financial Services Authority Law, Tuesday (23/4) in the Courtroom of the Constitutional Court. Photo by Humas MK/Ifa.

JAKARTA, Public Relations of the Constitutional Court—Constitutional law expert Zainal Arifin Mochtar said the investigative authority of the Financial Services Authority (OJK) did not emerge out of thin air. In fact, it is the mandate of Law No. 23 of 1999 of Bank Indonesia (BI Law). In addition, the authority continues to keep up with the times.

The Director for Gadjah Mada University’s Center for Anti-corruption Studies explained that the BI Law mandated the establishment of an independent institution to monitor the existing banks. "The orientation at that time was that BI oversaw the macro sector and the OJK was directed to the micro sector," he said as an expert presented by the OJK, the Relevant Party. Zainal then added that the new BI Law, Law No. 3 of 2004, also mandates the same thing as does Article 34 paragraph (1) of the OJK Law.

Zainal also mentioned the existence of the Capital Market and Financial Institution Supervisory Agency (Bapepam LK). He said that before the Bapepam LK was dissolved, under the Ministry of Finance the agency also had the authority to investigate financial services. However, the authority of Bapepam LK was not disputed at all, even though it had handled many cases.

"So, in general, the investigative authority of OJK does not need to be disputed. Because if observed in full, the OJK combines half the authority of Bapepam LK and half the authority of BI," Zainal said. This, he said, serves to create efficiency and effectiveness in the financial services sector.

Zainal also mentioned that other institutions outside the police also have investigative authority. For example, the Prosecutor\'s Office can also carry out investigations in certain criminal cases. "This is regulated in Article 30 paragraph (1) of the Public Prosecution Office Law," he asserted in response to Case No. 102/PUU-XVI/2018.

Likewise, the National Commission on Human Rights (Komnas HAM) has investigative authority too. It is a derivative of its supervisory authority. This shows that the OJK’s supervisory authority can also be interpreted as an investigative authority. "Supervision has always been considered as an administrative authority. But we can interpret supervision more broadly [where] supervision is expanded into investigation," Zainal explained. This means that, broadly speaking, he said, the OJK’s investigative authority should not be disputed.

Meanwhile, Yunus Husein as another expert for OJK stated that the investigative authority is not merely a police monopoly. This is in accordance with a previous Constitutional Court decision. "The authority to investigate other agencies can be carried out according to needs. However, it must be regulated in a special law," he explained. Because, he said, the investigative authority by the police is also based on law.

Yunus also denied the overlapping authority between the police and the OJK as pursuant to the Criminal Procedure Code (KUHAP), every case must be reported to the oversight coordinator in the police. In addition, there must be a notification letter at the start of a police investigation and the case can be stopped if there is a strong reason.

The case No. 102/PUU-XVI/2018 was petitioned by lecturers Yovita Arie Mangesti, Hervina Puspitosari, Bintara Sura Priambada, and Ashinta Sekar Bidari. The Petitioners had 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. According to them, 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 Satriantoro/LA/Yuniar Widiastuti)