The OJK’s Deputy Commissioner for Law and Investigation Rizal Ramadhani testifying as a Relevant Party at the judicial review hearing of Law No. 4 of 2023 on the Financial Sector Development and Reinforcement, Monday (8/28/2023). Photo by Humas MK/Bayu.
JAKARTA (MKRI) — Viktor T. Sihombing from the National Police and the OJK’s (Financial Services Authority) Deputy Commissioner for Law and Investigation Rizal Ramadhani testified 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 Monday, August 28, 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 fifth hearing, set to hear the Police and the OJK as Relevant Parties, was presided over by Chief Justice Anwar Usman, Deputy Chief Justice Saldi Isra, and the other seven constitutional justices.
Sihombing revealed that investigations by civil service investigators (PPNS) are under the Police’s supervision. Article 7 paragraph (2) of the Criminal Procedure Code (KUHAP) stipulates that investigations and coordination by PPNS are under the Police’s supervision. General criminal law enforcement by investigators is based on the provisions in the KUHAP and the Police Law, where the Police are authorized to conduct investigations on all criminal offenses.
Sihombing said that special criminal law enforcement based on certain crimes serves to respond to various developments of criminal acts that occur in society. In relation to this task, the Police classifies investigations as those conducted only by the Police and those that can be conducted by the Police or other institutions authorized by law.
He further explained that before the OJK Law was enforced, the Police had formed an investigation team authorized to investigate financial cases or the banking sector, the capital market, the insurance sector, the pension fund sector, the Islamic banking sector, and the currency sector. To handle all cases related to these fields, the National Police established the Directorate of Special Economic Crimes with various sub-directors and organizational units.
Sihombing also explained that the personnel assigned to those sectors had previously been educated and trained. The Police also support the investigations by using technology, one of which is cyber lab training. Investigations in the financial sector are carried out by Police investigators as stated in the Financial Sector Law, which also states that PPNS shall be coordinate with the Police, as mandated by Article 7 paragraph (2) of the KUHAP.
“However, after the OJK Law, investigations can also be done by the OJK. Aside from the Police, certain OJK officials can perform investigations as stipulated by the KUHAP,” Sihombing said.
Certain Employees
The OJK’s Deputy Commissioner for Law and Investigation Rizal Ramadhani testified that the P2SK Law regulates the OJK’s authority in performing investigations in the financial service sector and that it does not annul the Police’s authority. Certain investigative employees in the OJK are also investigators in the financial service sector because of several things—their duty and function as supervisors, employee rotation supports special investigative skills in the financial service sector, experience and capability in supervising the financial service sector will accelerate research into financial service crimes including the expansion of crimes in the PS2K Law.
“With the specificity of criminal acts and investigation techniques in the financial sector and the added value of OJK employees, the provisions on certain OJK employees as investigators are in accordance with the objectives of law enforcement of criminal acts in the financial services sector that are effective and optimal in protecting the public and consumers of the financial sector and the development of an increasingly complex financial services sector,” Rizal said.
Meanwhile, law enforcement of criminal acts in the financial services sector does not have to be carried out with criminal sanctions, but it is necessary to first rehabilitate the individuals harmed. So, the existence of OJK investigators is a foundation in strengthening the financial services sector as mentioned in the Constitutional Court Decision No. 102/PUU-XV/2018. In essence, Rizal continued, the authority of OJK's legal tools is needed so that the financial services sector can develop into a sustainable and stable system that prioritizes consumers’ and public’s safety.
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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.
Monday, August 28, 2023 | 16:19 WIB 362