The Petitioners’ experts taking oath before the Court before testifying at another material review hearing of Law No. 4 of 2023 on the Financial Sector Development and Reinforcement, Monday (9/25/2023). Photo by MKRI/Ifa.
JAKARTA (MKRI) — I Gde Widhiana Suarda, Agus Riwanto, Wahyu Aji Wibowo, and Jimmy Z. Usfunan was presented as experts by the Petitioners to provide testimony at the judicial review hearing of Article Article 8 point 21, Article 49 paragraph (5), and Article 49 paragraph (1) letter c of Law No. 4 of 2023 on the Financial Sector Development and Reinforcement (P2SK Law) on Monday, September 25, 2023. The hearing for Case No. 59/PUU-XXI/2023, to hear the testimonies of experts for the Petitioners, was presided over by Chief Justice Anwar Usman, Deputy Chief Justice Saldi Isra, and the other seven constitutional justices.
I Gde Widhiana Suarda, a law expert from the State University of Jember, revealed that the regulation of procedural law that deviates from the provisions of the Criminal Procedure Code (KUHAP) is basically closely related to the nature and characteristics of certain crimes, including the existence of civil servant investigators (PPNS) who are needed to conduct investigations aside from Police investigators. The investigative authority granted to PPNS or investigators from any institution other than Police investigators is part of efforts to enforce special criminal laws or criminal laws outside codification. However, not all special criminal laws outside codification regulate special investigators.
“So the term ‘certain employees’ as investigators is actually unfamiliar in Indonesian criminal procedural law. Even in special criminal laws, there is no such thing as ‘certain employees’ as investigators,” said Widhiana.
Supporting Investigator
Agus Riwanto, a constitutional law expert from Sebelas Maret University of Surakarta, argued that the OJK (Financial Services Authority) is a state institution supporting state apparatuses because it was formed based on laws and its authority is not specifically stated in the 1945 Constitution. Thus, the OJK is not the main investigator into criminal acts in the financial services sector, merely the supporting investigator.
Meanwhile, the main investigator of criminal offenses is the Police because it is part a state apparatus, as set forth in Article 30 paragraph (4) of the Constitution. Thus, the Police is the state’s main instrument in creating protection, giving services, and enforcing the law.
“So, the OJK, which exists outside the executive power structure, is not a suitable main authority in investigating criminal offenses in the financial services sector,” Agus said.
Access to Justice Is Limited
Agus also connected Article 8 point 21 and Article 49 paragraph (5) of the P2SK Law with the lack of access to justice for the community over due to OJK being the sole investigator of criminal acts in the financial services sector. He argued that the OJK is not the state’s main organ in law enforcement, so there is concern that it does not have adequate resources and that its offices do not reach all regions in Indonesia.
“With the limited number of investigators, which are only available at the headquarter, this means that OJK investigators are unable to investigate criminal acts in the financial services sector in all regions in Indonesia. This would potentially lead to public reports of financial services crimes not sufficiently handled if only the OJK is authorized to investigate,” Agus explained.
Only OJK Investigators
Wahyu Aji Wibowo, a linguist of the Bali Province Language Center, explained the lexical meaning of the phrase “can only” in the articles challenged. The word “only,” he said, is an adverb that limits the subject or that implies that there is no other thing besides the matter mentioned. The word “can” means the ability or power to do something. Meanwhile, the phrase “can only,” he said, means that other than OJK investigators, no other parties have the authority to investigate criminal acts in the financial services sector.
Diminishing Police’s Authority
Jimmy Z. Usfunan, a law lecturer at Udayana University, stated that the a quo articles impact the Police’s authority because they imply that investigations into criminal acts in the financial services sector, banking, capital markets, and insurance can only be carried out by OJK investigators. Some of these provisions mean the Police are no longer authorized to such crimes.
“By diminishing the Police’s duties, [when] the Police [is] the main state institution in law enforcement as guaranteed by the 1945 Constitution, the articles on investigating in the financial services sector [mean] the Police do not have the authority in investigation in the financial services sector,” Jimmy said.
Also read:
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SP NIBA AJB Bumiputera 1912 and PT WAL’s Victims Seek Justice
The case No. 59/PUU-XXI/2023 was filed by the Workers’ Union of Banks, Services and Insurance (SP NIBA) of mutual life insurer Asuransi Jiwa Bersama (AJB) Bumiputera 1912, I Made Widia, Ida Bagus Made Sedana, Endang Sri Siti Kusuma Hendariwati (Petitioners I-III), Bakhtaruddin (Petitioners V), and Muhammad Fachrorozi (Petitioners VI). The Petitioners challenge Article 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).
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.”
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. 30 ayat (4) UUD 1945.
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.
Also read: Court: OJK’s Investigative Authority Requires Coordination with Police Force
Author : Sri Pujianti
Editor : Nur R.
PR : Muhammad Halim
Translator : Tahlitha Laela/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, September 25, 2023 | 18:31 WIB 262