Legal counsel M. Rullyandi conveying the petition’s subject matter at the panel preliminary hearing of the Financial Sector Development and Reinforcement, Monday (6/19/2023). Photo by Humas MK/Ifa.
JAKARTA (MKRI) — The Constitutional Court (MK) held a preliminary hearing for the judicial review of Article 8 point 21, Article 49 paragraph (5), and Article 49 paragraph (1) letter c Law No. 4 of 2023 on the Financial Sector Development and Reinforcement (P2SK) on Monday, June 19, 2023. The case No. 59/PUU-XXI/2023 was filed by the Workers’ Union, Banks, Services and Insurance (SP NIBA) of mutual life insurer Asuransi Jiwa Bersama (AJB) Bumiputera 1912, I Made Widia, Ida Bagus Made Sedana, and Endang Sri Siti Kusuma Hendariwati (Petitioners I-III).
Article 49 paragraph (1) letter c of the P2SK Law reads, “Investigators of the Financial Services Authority shall consist of: ... c. certain employees, who are given special authority as investigators as referred to in the Criminal Procedure Code, to investigate criminal acts in the financial services sector.” Article 49 paragraph (5) reads, “Investigation of criminal offenses in the financial services sector can only be carried out by investigators of the Financial Services Authority.”
Legal counsel M. Rullyandi said that Petitioner I, a private legal entity, had been harmed since the P2SK Law had eliminated his constitutional right to defend its members’—who are workers and citizens—legal interests. They had suffered losses due to being unable to take legal measures through the police against crimes in the financial services sector, as was faced by AJB Bumiputera 1912. They could only take legal actions through sole investigation of criminal offenses in the financial services sector, which only the OJK investigators can do.
“Petitioner I believes the P2SK Law have consequences of constitutional issues in terms of certain employee investigators of the OJK. It can be ascertained according to logical reasoning that under the P2SK Law, sole investigation of criminal acts in the financial services sector is potentially carried out by certain employee investigators of the OJK. If interpreted that sole investigation of such criminal acts can only be carried out by the OJK, this provision would have a direct impact on the legal interests of members of Petitioner I, which is under the OJK’s supervision,” Rullyandi explained to Constitutional Justices Suhartoyo, Arief Hidayat, and Daniel Yusmic P. Foekh from the plenary courtroom.
Complaint Cannot Be Followed Up
Meanwhile, such authority in certain employee investigators of the OJK had actually impaired the constitutional rights of Petitioners II, III, and IV. Petitioner II reported an alleged banking crime (fraud) committed by HV, who had collected customers’ savings without the permission of the central Bank Indonesia governor in 2008. He reported the issue and received a response letter from the head of Sub-Directorate II of the Special Criminal Investigation Directorate of Bali Police No. B/16/I/RES.2.2/2023/Dittipideksus. While his complaint was received, the police were unable to follow it up because based on Article 49 paragraph (5) of the P2SK Law, the authority falls on the OJK investigators.
Petitioner II believes the granting of sole authority to OJK investigators has resulted in the rejection of the criminal report he lodged and reflects legal uncertainty in the law enforcement process. He also alleges that the OJK has monopolized investigations in the financial services sector, thus being contrary to due process of law based on fair legal certainty, as guaranteed in Article 1 paragraph (3) and Article 28D paragraph (1) of the 1945 Constitution. It also reduces the authority of the national police as the main state apparatus tasked with enforcing the law, as stipulated in Article 30 paragraph (4) of the 1945 Constitution.
Therefore, the Petitioners requested that the Court grant their provisional petition and postpone the enactment of the P2SK Law until there is a court decision in the a quo case, during which Law No. 21 of 2011 on the Financial Services Authority will apply.
“The Petitioners request that the Court grant the Petitioners’ petition in its entirety; declare the provisions of Article 8 point 21, Article 49 paragraph (5) of Law No. 4 of 2023 on the Financial Sector Development and Reinforcement along the phrase ‘can only be carried out by investigators of the Financial Services Authority’ unconstitutional not legally binding as long as it is not interpreted as ‘In addition to investigators of the Indonesian National Police, investigators of the Financial Services Authority shall be able to investigate criminal acts in the financial services sector,’ which are further regulated in Article 14 point 35, Article 37D paragraph (10) on banking crimes; Article 15 point 55, Article 67A paragraph (10) on sharia banking crimes; Article 22 point 41, Article 101 paragraph (1) on capital market crimes ; Article 52 point 23, Article 72A paragraph (10) on investigation into insurance crimes as stipulated in Law No. 4 of 2023 on the Financial Sector Development and Reinforcement,” Rullyandi said.
Justices’ Advice
Constitutional Justice Daniel Yusmic P. Foekh highlighted the Petitioners’ legal standing. As a taxpayer, Petitioner I can submit its tax returns to strengthen its legal standing. Next, Constitutional Justice Arief Hidayat commented on the petition’s format, starting from the article, the posita, the provisional petition, and the petitum. He also recommended that the Petitioners review their argument on the OJK’s authority in the financial services sector.
Meanwhile, Constitutional Justice Suhartoyo asked about the justification of the sole oversight authority of the OJK investigators, so the Petitioners need to clarify special investigation authority of the police and the OJK.
“Can such an investigation be a joint one? Strengthen the argument by explaining the characteristics of OJK investigators granted the special authority. If necessary, explain the targets of OJK investigators,” he said.
Before concluding the hearing, Justice Suhartoyo informed the Petitioners that they had 14 workdays to revise the petition and submit it to the Registrar’s Office by Monday, July 3 at 13:00 WIB.
Author : Sri Pujianti
Editor : Lulu Anjarsari P.
PR : M. Halim
Translator : Yuniar Widiastuti (NL)
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.
Monday, June 19, 2023 | 15:17 WIB 237