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Virtual preliminary hearing of the case No. 22/PUU-XIX/2021 on Wednesday (16/6/2021). Photo by Humas MK/Bayu.

Wednesday, June 16, 2021 | 16:25 WIB

JAKARTA, Public Relations—Law No. 8 of 2010 on the Prevention and Eradication of Criminal Acts of Money Laundering (TPPU) was challenged in the Constitutional Court (MK). The petition No. 22/PUU-XIX/2021 was filed by NGOs Auriga Nusantara Foundation and Kaoem Telapak. They argued that Article 2 paragraph (1) letter z and the Elucidation to Article 74 of the Money Laundering Law violates Article 28D paragraph (1) and Article 27 paragraph (1) of the 1945 Constitution.

The preliminary hearing of the material judicial review of the Money Laundering Law took place on Wednesday, June 16, 2021 with presiding Constitutional Justices Manahan M. P. Sitompul (chair), Arief Hidayat, and Enny Nurbaningsih. The Petitioners’ attorney Fadli Ramadhanil quoted Article 2 paragraph (1) letter z of the a quo law, “The result of the criminal act shall be the Assets acquired from the criminal act, as follows: z. other criminal acts subject to imprisonment of 4 (four) years or more.”

The Petitioners believe the article has resulted in ambiguous objectives of the eradication of money laundering and legal uncertainty because it limits criminal acts only to subject to imprisonment of 4 years or more, or serious crimes. The Petitioners illustrated the provision on copyright crimes such as film piracy through illegal downloads and pirated DVDs.

“The a quo provision has resulted in disorder and legal certainty because there are different requirements of minimum legal punishment on which the Money Laundering Law can be applied. Other predicate offenses are subject to a minimum legal punishment that is different from that which is regulated in Article 2 paragraph (1) letters a to z of Law No. 8 of 2010,” Fadli said alongside the other attorney, Feri Amsari.

Legal Uncertainty

Fadli then quoted the Elucidation to Article 74 of the Money Laundering Law: “In this Article, ‘investigator of the predicate crime’ shall be the officials from the institutions that under the law are granted the authority to conduct investigation, namely the Indonesian National Police, Attorney Office, Corruption Eradication Commission (KPK), National Narcotics Agency (BNN), Directorate-General of Taxation, and Directorate-General of Customs of the Finance Ministry of the Republic of Indonesia.”

The Petitioners believe the provision has resulted in legal uncertainty as the elucidation offers an interpretation that is different from the article. Therefore, the norm has violated Article 28D paragraph (1) and Article 27 paragraph (1) of the 1945 Constitution.

“The Elucidation to Article 74 of the Money Laundering Law restricts investigators of money laundering. [It] allows for all money laundering investigators to come from the investigation of predicate offenses as per Article 2 paragraph (1) the Money Laundering Law. however, the Elucidation to Article 74 has created a new provision that is entirely different from that of the original article, as it limits money laundering investigators to only 6 institutions,” Fadli said virtually from his residence.

Therefore, the Petitioners requested that the Court declare Article 2 paragraph (1) letter z of the Money Laundering Law unconstitutional and not legally binding insofar as not interpreted as “.. other criminal acts subject to imprisonment of 1 (one) year or more.” The Petitioners also requested that the Court declare the Elucidation to Article 74 of the Money Laundering Law unconstitutional and not legally binding insofar as not interpreted as “‘Investigator of the predicate crime’ shall be the officials or institutions that under the law are granted the authority to conduct investigation.”

Justices’ Advice

Having observed the petition, Constitutional Justice Enny Nurbaningsih noted that some parts of it had not followed the standard format as regulated in the latest Constitutional Court Regulation (PMK). The Petitioners are expected to revise it to become systematic and consistent, from the Court’s authority to the Petitioners’ legal standing as a foundation and/or an organization. She also requested that the Petitioners explain their constitutional rights, which have allegedly been harmed due to the contented norms.

Meanwhile, Constitutional Justice Arief Hidayat highlighted the explanation of the differences between the current case and the case No. 74/PUU-XVI/2018. He then asked the Petitioners to strengthen their legal standing as two petitioners—a foundation and an organization.

“A similar case was ruled [niet ontvankelijke verklaard—inadmissible due to formal defects]. So, this case is expected to fulfill Article 60 of the Constitutional Court Law, so that the case can be further examined because the Petitioners have strong legal standing,” he said.

Next, Constitutional Justice Manahan M. P. Sitompul recommended that the Petitioners elaborate on their legal standing following their statute/bylaws. He also asked whether the names on the petition are authorized to represent the organizations inside and outside of the court.

Before concluding the hearing, Justice Manahan reminded that the Petitioners must revise the petition until June 29, 2021 and submit it two hours before the hearing commences. They will hear from the Registrar’s Office regarding the schedule.

Writer        : Sri Pujianti
Editor        : Nur R.
PR            : Fitri Yuliana
Translator  : Yuniar Widiastuti (NL)

Translation uploaded on 6/17/2021 13:09 WIB

Disclaimer: The original version of the news is in Indonesian. In case of any differences between the English and the Indonesian version, the Indonesian version will prevail.

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