Justice Suhartoyo reading out the Court’s opinions in the ruling hearing of the material judicial review of Law No. 8 of 2010 on the Prevention and Eradication of Money Laundering, Tuesday (29/6/2021). Photo by Humas MK/Ifa.
Tuesday, June 29, 2021 | 15:32 WIB
JAKARTA, Public Relations—Investigators of predicate crimes shall not only be limited to those from six institutions who are authorized by the law to carry out investigations as mentioned in the Elucidation to Article 74 of Law No. 8 of 2010 on the Prevention and Eradication of Money Laundering (TPPU). This was the Decision No. 15/PUU-XIX/2021 read out by Chief Justice Anwar Usman alongside the other eight constitutional justices on Tuesday afternoon, June 29, 2021.
“[The Court] grants the Petitioners’ petition in its entirety; declares the Elucidation to Article 74 of Law No. 8 of 2010 on the Prevention and Eradication of Money Laundering (TPPU) along the sentence ‘In this Article, ‘investigator of the predicate crime’ shall be the officials from the institutions that under the Law are provided 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’ in violation of the 1945 Constitution and not legally binding insofar as not be interpreted ‘Investigators of the predicate crime’ shall be the officials or the institutions that under the law are granted the authority to conduct investigation,’” Chief Justice Anwar Usman read out the ruling in the plenary courtroom before the litigants who attended the hearing virtually.
Also read: Definition of Predicate Crime Investigators in Money Laundering Law Deemed Discriminatory
Petitioners are Ministry of Environment PPNS (civil service investigators) Cepi Arifiana and M. Dedy Hardinianto as well as Ministry of Marine Affairs and Fisheries PPNS Garribaldi Marandita and Mubarak. They alleged that the elucidation to Article 74 of the Money Laundering Law was against Article 24 paragraph (1), Article 27 paragraph (1), and Article 28D paragraph (1) of the 1945 Constitution. They believed it had limited the core investigators authorized to investigate money laundering crimes to only six agencies. They also believed the norm had led to unequal treatment of parties authorized to investigate money laundering crimes and suspects of such crimes. The Petitioners, who are PPNS, received different treatment from the police, KPK, BNN, etc. when charged with money laundering crimes.
In the opinions read out by Constitutional Justice Suhartoyo, the Court held that the phrase “investigator of predicate crimes” in Article 74 of the Money Laundering Law had defined such investigators as officials from the institutions that under the procedural law and statutory law are granted the authority to conduct investigation—all investigators of predicate crimes or crimes that then result in money laundering. In other words, they are officials that under the law are authorized to investigate crimes that result in money laundering as per Article 2 paragraph (1) of the Money Laundering Law.
Therefore, Justice Suhartoyo added, clearly and unequivocally (expressis verbis) without any exception, any official that has carried out investigation of a crime under the law, which then lead to the crime of money laundering, is an investigator of a predicate crime.
“Therefore, there is no legal reason that can be justify the interpretation of Article 74 of the Money Laundering Law as ‘not all officials authorized by law to carry out the investigation of a crime that result in the crime of money laundering cannot automatically investigate any crime related to the predicate crime, in this case money laundering,” he explained.
Also read: Petitioners of Money Laundering Law Revise Petition
One Authority
Justice Suhartoyo added that there is a fundamental reason to declare that the separation of the investigation of predicate crimes and money laundering resulting from it is irrelevant. The reason is that the combination of authority will facilitate evidence and promote efficiency in handling a case.
“Because there will be no need to transfer [the investigation] to other investigators (the police) through splitting, which would take time and might require investigation from scratch on the money laundering, except for coordination prior to the transfer of dossiers to the prosecutor as stipulated by Article 7 paragraph (2) of the KUHAP [Criminal Procedure Code],” Justice Suhartoyo explained.
Therefore, he said, the repeated process would not be in line with the principle of simple, expedient, and cost-effective judiciary pursuant to Article 2 paragraph (4) of Law No. 48 of 2009. Not to mention, investigators of predicate crimes are actually more familiar with the cases. Based on the legal consideration, it cannot be justified to limit so that the investigators of predicate crimes aside from the six institutions mentioned in Article 74 of the Money Laundering Law do not automatically have the authority to investigate money laundering as long as the predicate crimes are considered criminal acts pursuant to Article 2 paragraph (1) of the Money Laundering Law.
“Not to mention, because Law No. 8 of 2010 regulates that if in an investigation a predicate crime and the crime of money laundering are found, the investigators may combine the predicate crime and the crime of money laundering by notifying the [Center for Financial Transaction Reports and Analysis Center/INTRAC] (vide Article 75 of Law No. 8 of 2010). This is actually in line with the principle of efficiency and the aspiration to realize simple, expedient, and cost-effective judiciary,” Justice Suhartoyo explained.
Limiting Definition
Justice Suhartoyo added that the Elucidation to Article 74 of the Money Laundering Law has limited the definition of “the investigators of predicate crimes” by limiting the legal subjects who can become the investigators of predicate crimes. In addition, it has also discriminated against civil servants in the management of money laundering crimes.
“Because, as considered in the above, technically and substantially, if the investigation of money laundering is carried out by the investigators of predicate crimes, the charge of money laundering and its predicate crime will be expedited. Therefore, the investigators of predicate crimes who discovered the money laundering crime must be given authority and, therefore, the Elucidation to Article 74 of the Money Laundering Law must be declared unconstitutional as long as not interpreted as mentioned in the verdict of the a quo case,” Justice Suhartoyo stressed.
Writer : Lulu Anjarsari P.
PR : Andhini S. F.
Translator : Yuniar Widiastuti (NL)
Translation uploaded on 6/29/2021 17:53 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.
Tuesday, June 29, 2021 | 15:32 WIB 531