House Commission III Vice Chair Habiburokhman testifying at the judicial review hearing of Law No. 4 of 2023 on the Financial Sector Development and Reinforcement, Thursday (8/3/2023). Photo by Humas MK/Bayu.
JAKARTA (MKRI) — Certain employees other than civil service investigators (PPNS) in the OJK (Financial Services Authority) can also become investigators in the financial services sector and become an integral part of the OJK investigator subsystem. They are officials who work in the OJK after obtaining permission from the National Police and appointed by the Minister as investigators in accordance with statutory laws and regulations. These investigators are needed because criminal acts in the financial services sector are increasingly complex and dynamic, both in terms of products and institutions.
This statement was made by the House of Representatives (DPR), delivered by House Commission III Vice Chair Habiburokhman at a material judicial review hearing 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 Thursday, August 3, 2023 in the plenary courtroom. 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-IV). This fourth hearing, set to hear the House and the President, was presided over by Chief Justice Anwar Usman, Deputy Chief Justice Saldi Isra, and the other seven constitutional justices.
“The specificity is because issues in the financial sector need to be handled carefully by experts in their fields, as they involve complicated and hidden financial transactions, such as financial crimes that can occur with a high level of complexity. To overcome this, investigators who understand financial mechanisms, in-depth financial analysis are needed. So, the independent OJK can regulate, supervise, examine, and investigate with financial authority so its personnel can [employ] non-PPNS investigators,” Habiburokhman said.
Integrated Criminal Justice System
Habiburokhman said the integrated criminal justice system includes investigation, prosecution, court examination, and implementation of the judge’s decision. This is regulated in Law No. 8 of 1981 on Criminal Procedure Code (KUHAP), mainly Article 1 paragraph (1), which reads, “An Investigator shall be a state police official of the Republic of Indonesia or a certain civil service official who is granted special authority by law to conduct an investigation.” So, PPNS’s investigation is limited to criminal acts regulated in law and it serves to assist police investigators, thus, the control remains with the Police as a supervisor.
He further explained that it is necessary to appoint PPNS because there are special criminal acts that require special expertise. If these special offenses are only handled by the Police, there will be limitations in the investigation. However, he added, these investigators remain under the supervision of the Police investigators.
“The OJK Regulation No. 22/POJK.01/2015 on Investigation into Criminal Acts in the Financial Service Sector stipulates that OJK investigators be investigators of the State Police of the Republic of Indonesia and/or civil service investigators given special authority as investigators employed in the OJK to carry out investigations into criminal acts in the financial service sector as referred to in Law No. 21 of 2011 on the OJK,” he explained.
OJK Investigation Team
Next, the President/Government’s proxy Arief Wibisono, the Ministry of Finance’s advisor for financial services and capital market, said in his testimony that financial service institutions that have ownership relationships in various financial subsectors (conglomerates) had not paid attention to financial issues. For example, cross-sectoral issues in financial services are increasingly complex due to the development of information technology, the emergence of new financial risks associated with climate change and geopolitical situations. As a result, market trust and confidence in supervisory institutions is a major component of good governance, among which is by giving the OJK investigation authority and appointing certain employees as OJK investigators following Article 49 paragraph (1) and Article 8 point 21 of the P2SK Law.
In essence, he said, no single investigation into criminal offenses in the financial service sector is carried out only by certain employee investigators. This is because investigation is carried out by a team of OJK investigators consisting of the State Police, PPNS, and certain employees. Meanwhile, the requirements and qualifications of certain employee investigators are stipulated in Article 5 paragraph (2) of Government Regulation (PP) No. 5 of 2023 and their appointment is also regulated in Article 16 of said government regulation.
“As such, there are clear regulations on the requirements, qualifications, and appointment of certain employees as OJK investigators. Therefore, Article 8 point 21 of the P2SK Law is clearly not in violation of the principle of legal certainty as contained in the KUHAP as well as the principle of separation of powers,” Arief stressed.
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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.”
At the preliminary hearing on Monday, June 19, it was asserted 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.
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.
Author : Sri Pujianti
Editor : Nur R.
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.
Thursday, August 03, 2023 | 15:42 WIB 282