Petitioner and legal counsels appearing before the Court at the material judicial review hearing of Law No. 10 of 1998 on Banking virtually, Tuesday (11/16/2021). Photo by Humas MK/Panji.

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Tuesday, November 16, 2021 | 18:58 WIB

JAKARTA, Public Relations—Ex-director of PT BPR Palembang Armansyah challenged Law No. 10 of 1998 on the Amendment to Law No. 7 of 1992 on Banking in the Constitutional Court (MK). The preliminary hearing of case No. 58/PUU-XIX/2021 took place on Tuesday, November 16, 2021. The Petitioner argues that Article 49 paragraph (1) letters a and b of the Banking Law is vague and has impaired his constitutional rights.

The article in contention reads, “A member of the Board of Commissioners, Board of Directors, or Bank Employee, who knowingly and willfully: (a) creates or causes to exist falsified records in the books or in a report, in a document or report on business operation, a transaction report or an account of a Bank; (b) eliminates or fails to enter or cause not to be recorded in the books or in a report, or in a document or report on business operation, a transaction report or an account of a Bank shall be imprisoned to a minimum of 5 (five) years and maximum of 15 (fifteen) years and fined to a minimum of Rp10.000.000.000,00 (ten billion rupiah) and maximum of Rp200.000.000.000,00 (two hundred billion rupiah).”

In the petition, the Petitioner argues that the enactment of Article 49 paragraph (1) letter a of the Banking Law does not protect banking actors. Moreover, it does not provide a sense of justice and legal certainty in the event that the perpetrator is not a member of the board of commissioners, the board of directors, or a bank employee. Instead, it only limits its legal subjects to members of the board of commissioners, the board of directors, and bank employees.

He also believes Article 49 paragraph (1) letter b of the Banking Law are used inappropriately by the law enforcement, as exemplified by the Petitioner’s charge by Financial Services Authority (OJK), whose case is still in trial. “Thus, this clearly has eliminated the Petitioner constitutional right to fair legal certainty, legal guarantee, and legal protection, thus violating the provisions of Article 28C paragraph (2) and Article 28D paragraph (1) of the 1945 Constitution,” said Windu Rohima, the Petitioner’s counsel.

In the petitum, the Petitioner requested that the phrase ‘a member of the Board of Commissioners, Board of Directors, or Bank Employee’ in Article 49 paragraph (1) letter a of the Banking Law be declared unconstitutional and not legally binding, and so thus must be interpreted as ‘any person’ so that it becomes clear and provides fair legal certainty, legal guarantee, and legal protection.

“[…] So that the article would read, ‘Any person who knowingly and willfully creates or causes to exist falsified records in the books or in a report, in a document or report on business operation, a transaction report or an account of a Bank,’” Windu explained.

Therefore, In the petitum, the Petitioner requested that the Court declare Article 49 paragraph (1) letters a and b of the Banking Law unconstitutional and not legally binding. He also requested that the Court declare the imposition of criminal charge to the Petitioner on suspicion of the violation of Article 49 paragraph (2) letter b in Chapter VIII on Criminal Provisions and Administrative Sanctions of Law No. 10 of 1998 on Banking constitutes a legal defect.

Concrete Case

In response, Constitutional Justice Saldi Isra stressed that the concrete case was not under the Court’s jurisdiction. Not to mention, the Petitioner in the petitum requested that the Court annul a decision by another executor of judicial power.

“(The Constitutional Court) is not an institution that corrects the decision of another court. [It] reviews the constitutionality of laws against the Constitution. You cannot apply the logic of a concrete case here, because (the Court) may deem the petition obscure or [declare it inadmissible due to formal defects],” he stressed.

He added that a concrete case may only be mentioned to explain the Petitioner’s legal standing. He also advised the Petitioner to explain his constitutional impairment. “Because the Court considers the constitutional impairment that the Petitioner experience,” he stressed.

Meanwhile, Constitutional Justice Manahan M. P. Sitompul requested that the Petitioner revise the petition to follow the Constitutional Court Regulation (PMK) No. 2 of 2021. He also said that the explanation of a concrete case should not stray from the standard format of a judicial review petition. “[I] fear that the Court will be considered a fourth-level court above cassation. Moreover, in the petitum, [you] ask the annulment of a cassation decision,” he said.

In response to the Petitioner’s provisional petition, he stressed that the Court does not have the authority to annul a cassation decision. “The Court does not adjudicate the concrete case that the Petitioner experience,” he said.

Before concluding the hearing, Constitutional Justice Enny Nurbaningsih (panel chair) informed the Petitioner that he has 14 workdays to revise the petition, which is to be received by the Registrar’s Office by November 29, 2021.

Writer    : Utami Argawati
Editor   : Lulu Anjarsari P.
PR        : Raisa Ayudhita
Translator : Yuniar Widiastuti (NL)

Translation uploaded on 11/17/2021 11:30 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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