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The Petitioners’ counsel Zul Armain Aziz conveying the petition virtually at the preliminary hearing of Law No. 21 of 2011 on the Financial Services Authority (OJK), Tuesday (3/8/2021). Photo by Humas MK/Panji.

Tuesday, August 3, 2021 | 14:32 WIB

JAKARTA, Public Relations—The preliminary hearing of the material judicial review of Law No. 21 of 2011 on the Financial Services Authority (OJK) was held by the Constitutional Court (MK) on Tuesday, August 3, 2021. The case No. 33/PUU-XIX/2021 was filed by Nurhasanah and Khoerul Huda (Petitioners I and II), who were accompanied by counsels Zul Armain Aziz and collagues.

The Petitioners challenged Article 53 paragraphs (1) and (2), Article 54 paragraphs (1) and (2) of the OJK Law. Article 53 paragraph (1) reads, “Every person who intentionally ignores, does not meet, or impedes the implementation of the authorities of OJK as referred to in Article 9 point c, point d, point e, point f, point g, and/or Article 30 section (1) point a, shall be punished with imprisonment for a minimum of 2 (two) years and fined up to a minimum of Rp5,000,000,000.00 (five billion rupiah) or with imprisonment for a maximum of 6 (six) years and a fine of up to a maximum of Rp15,000,000,000.00 (fifteen billion rupiah).” Article 53 paragraph (2) reads, “If a violation as referred to in section (1) is perpetrated by a corporation, the corporation shall be punished with a fine of up to a minimum of Rp15.000.000.000, 00 (fifteen billion rupiah) or a maximum of Rp45,000,000,000.00 (forty-five billion rupiah).”

Article 54 paragraph (1) reads, “Every person who intentionally ignores and/or implements written order as referred to in Article 9 point d or statutory duty to use manager as referred to in Article 9 point f, shall be punished with imprisonment of a minimum of 2 (two) years and fined up to a minimum of Rp5,000,000,000.00 (five billion rupiah) or with imprisonment of a maximum of 6 (six) years and a fine of up to a maximum of Rp15,000,000,000.00 (fifteen billion rupiah).” Article 54 paragraph (2) reads, “If the violation as referred to in section (1) is perpetrated by a corporation, the corporation shall be punished with a fine of up to a minimum of Rp15,000,000,000.00 (fifteen billion rupiah) or a maximum of Rp45,000,000,000.00 (forty-five billion rupiah).”

Legal Standing and Arguments

The Petitioners are policy holders of mutual life insurer Asuransi Jiwa Bersama (AJB) Bumiputera 1912, which is a joint venture where the policy holders are also owners of the business entity. They are also members representative body (BPA) of AJB Bumiputera 1912.

Counsel Zul Armain Aziz revealed that on March 8, 2021, Nurhasanah (Petitioner I) was summoned by the Financial Services Sector Investigation Department and was named a suspect of a crime in the financial services sector for ignoring or not fulfilling or hindering the implementation of the authority of the OJK and/or not carrying out the written order No. S.13/D.05/2020 dated April 16, 2020 as referred to in Article 53 and/or Article 54 of the OJK Law in conjunction with Article 55 paragraph (1) of the Criminal Code (KUHP) while in AJB Bumiputera 1912 in April-October 2020.

The Petitioners felt that their constitutional rights had been harmed due to the enactment of Article 53 paragraphs (1) and (2), Article 54 paragraphs (1) and (2) of the OJK Law, which they believe to be in violation of Article 28D paragraph (1) of the 1945 Constitution. They argued that the phrases ‘Every person who intentionally ignores, does not meet, or impedes the implementation of the authorities of OJK as referred to in Article 9 point d, point e, point f, point g, and/or Article 30 section (1) point a’ and ‘Every person who intentionally ignores and/or implements written order as referred to in Article 9 point d or statutory duty to use manager as referred to in Article 9 point f’ are catchall and can be misused by OJK to suspect a person or corporation of a crime in the financial services sector.

The Petitioners believe the phrases ‘intentionally ignores, does not meet, or impedes the implementation of the authorities’ and ‘intentionally ignores and/or implements written order’ indicates legal uncertainty and a violation of Article 28D paragraph (1) of the 1945 Constitution because they are subjective. If any points in a written order have not been met or implemented, the OJK can exercise its authority using the a quo articles as a legal basis.

Justices’ Advice

Constitutional Justice Manahan M. P. Sitompul observed that the petition’s format—the Petitioners’s profile, legal standing, background of the petition, to petitum—were satisfactory. However, he highlighted that the articles that the Petitioners challenge are criminal in nature. “These norms must be analyzed by the Petitioners in relation to their legal standing,” he said. In addition, he said that he could not see the content of the touchstone against which the articles are reviewed.

Next, Constitutional Justice Daniel Yusmic P. Foekh said that the Petitioners had not mention the latest Constitutional Court Law, which amended the previous law, in petition that detailed the Court’s authority. He also questioned the Petitioners’ status. “Is only Petitioner I a suspect or is Petitioner II also one? This must be explained,” he advised.

Meanwhile, Constitutional Justice Enny Nurbaningsih (panel chair) stressed that the Petitioners must be more cautious and meticulous in drafting the petition. She highlighted the constitutional impairment of Petitioner I and advised Petitioner II to elaborate his in the petition.

Writer        : Nano Tresna Arfana
Editor        : Nur R.
PR            : Raisa Ayudhita
Translator  : Yuniar Widiastuti (NL)

Translation uploaded on 8/4/2021 10:52 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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