The ruling the hearing of the judicial review of Law No. 21 of 2011 on the Financial Services Authority (OJK), Wednesday (9/29/2021). Photo by Humas MK/Bayu.
Wednesday, September 29, 2021 | 21:53 WIB
JAKARTA, Public Relations—The Constitutional Court (MK) rejected the entire judicial review petition of Law No. 21 of 2011 on the Financial Services Authority (OJK). The ruling hearing for the case No. 33/PUU-XIX/2021 took place on Wednesday, September 29, 2021 virtually from the plenary hearing. The petition was filed by Nurhasanah and Khoerul Huda.
“[The Court] adjudicated, rejects the Petitioners’ petition in its entirety,” said Chief Justice Anwar Usman when chairing the hearing alongside the other eight constitutional justices.
In its considerations, the Court states that Article 53 paragraph (1) and Article 54 paragraph (1) of the OJK Law are criminal provisions set to guarantee the implementation of the Constitution-mandated authority of the OJK for performing its supervision on financial service activities. The intentional acts mentioned in the a quo articles are “ignores,” “does not meet,” and/or “does not implement,” which constitute formal offenses although the perpetrator has not finished the act or has not caused any consequence.
“It seems that the legislatures intended to ensure that the OJK’s authority can be exercised and to prevent any hindrance or the failure to exercise the authority due to prohibited acts. Therefore, the prohibited acts are formulated without focusing on the consequences, unlike in the case of material offenses,” said Constitutional Justice Daniel Yusmic P. Foekh reading out the Court’s opinion.
Considering the Petitioners’ argument regarding the form of action as regulated in Article 53 paragraph (1) and Article 54 paragraph (1) of the OJK Law, except for acts in the form of speech. The Court holds that the scope of acts punishable under those articles is not within its jurisdiction.
“Because the Petitioners’ argument concerns norm implementation. For example, an action to hinder can be manifested into action, such as hiding or eliminating a document or information, obstructing, stalling, and uttering words that influence, provoke, or direct other people to do any act to hinder the implementation of the OJK’s authority,” Justice Enny said.
The Court maintains that in exercising its investigative authority, the OJK must coordinate with police investigators since a notification is issued to start the investigation, to the implementation of the investigation, until the paperwork is finished, before the case is transferred to the public prosecutor.
“Besides to avoid arbitrariness and overlap in the integrated enforcement of the criminal law, more importantly, the Court believes, this is for the protection and guarantee of the citizens’ rights, including suspects. Therefore, the a quo Petitioners’ argument is legally groundless,” Justice Enny stressed.
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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 does not implement 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).”
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.
At a meeting of the BPA, Nurhasanah (Petitioner I) expressed her sentiment against the OJK to motivate other members and the board of directors to maintain the management of AJB Bumiputera 1912 according to its statute and statutory regulations to protect the members’ interests. She was subsequently 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 its written order as referred to in Article 53 paragraph (1) and Article 54 paragraph (1) of the OJK Law, while Khoerul Huda (Petitioner II) was summoned to testify as witness for it.
Petitioner I was also detained, while Petitioner II could potentially face a charge of crime in the financial services. The Petitioners believe this was a violation of their constitutional rights, especially of “guarantee of fair legal certainty” as regulated in Article 28D paragraph (1) of the 1945 Constitution and “the right to protection from the threat of fear of doing or not doing something that constitutes a human right” as regulated in Article 28G paragraph (1) of the 1945 Constitution.
The Petitioners believed Article 53 paragraph (1) and Article 54 paragraph (1) of the OJK Law had led to multiple interpretations and were illogical and causing a conflict of norms. They believed the phrases “intentionally ignores, does not meet, or impedes the implementation of the authorities” in Article 53 paragraph (1) and “intentionally ignores and/or does not implement written order” in Article 54 paragraph (1) indicated legal uncertainty and a violation of Article 28D paragraph (1) of the 1945 Constitution because they were subjective. If any points in a written order have not been met or implemented by an individual or legal entity, the OJK can exercise its authority using the a quo articles as a legal basis without any clear parameter on the meaning of the expressions “ignores,” “does not meet,” and/or “does not implement” in the a quo articles.
According to the Petitioners, the OJK had abused its authority by using the a quo articles to charge the Petitioners and undermine their dignity, because if they failed to implement even one of several points in a written order, the OJK can exercise its authority by using a quo articles as a legal reference. In fact, 6 of the 7 points in the OJK’s written order have been implemented.
Writer : Nano Tresna Arfana
Editor : Nur R.
PR : Raisa Ayudhita
Translator : Yuniar Widiastuti (NL)
Translation uploaded on 10/1/2021 11:35 WIB
Disclaimer: The original version of the news is in Indonesian. In case of any differences between the English and the Indonesian versions, the Indonesian version will prevail.
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