Bayu Dwi Anggono (law professor of University of Jember) elaborating the unconstitutionality of the P2SK’s provision on OJK as the single investigator of crimes in financial services, Thursday (10/19/2023). Photo by MKRI/Fauzan.
JAKARTA (MKRI) — The Indonesian National Police (Polri) as a Relevant Party presented three legal experts at the judicial review hearing of Article 8 point 21 of Article 49 paragraph (5), and Article 8 point 21 paragraph of Article 49 paragraph (1) letter c of Law No.4 of 2023 on Financial Sector Development and Reinforcement (P2SK Law) on Thursday, October 19, 2023. The three experts were Bayu Dwi Anggono, Hibnu Nugroho, and Khairul Fahmi.
Bayu Dwi Anggono, law professor of the University of Jember, explained the perspective of legislative science on the unconstitutionality of the provision in the P2SK Law that makes OJK investigators the sole investigators of crimes in the financial services sector.
Omnibus Law
The revision of the P2SK Law through an omnibus law, Bayu said, must follow a definite, standard procedure as regulated in Law No. 13 of 2022 on the Second Amendment to Law No.12 of 2011 on Lawmaking and comply to the principles of good lawmaking, which include content, order, and legal certainty.
He believes that several P2SK Laws, which make OJK investigators sole investigators of crimes in the financial services sector, have eliminated the Police’s authority and clearly contradicted the principles of order and legal certainty as stipulated in Article 6 paragraph (1) letter i of the Lawmaking Law. It has caused conflict with Article 30 paragraph (4) of the Constitution, the Police Law, and the Criminal Procedure Code (KUHAP) because these existing norms clearly guarantee the Police investigators’ authority investigating all criminal offenses.
“Several norms were changed by the P2SK Law, such as the OJK Law, Banking Law, Insurance Law, which stipulates that ‘only OJK investigators’ are authorized to investigate criminal acts in the financial service sector. These are non-organic laws whose formation is not based on the 1945 Constitution. Meanwhile, the Police Law is an organic law whose one content is related to the implementation of the Police’s authority in law enforcement on investigation into criminal acts, which was born out of the 1945 Constitution,” said Bayu at the eight hearing presided over by Chief Justice Anwar Usman, Deputy Chief Justice Saldi Isra, and the other seven constitutional justices in the plenary courtroom.
OJK Not President’s Organ
Khairul Fahmi, constitutional law lecturer of Andalas University, provided a perspective on the consequences of the loss of Police’s authority in investigating criminal acts in the financial service sector in the P2SK Law. This shift has impacted the state administration where the authority of a presidential organ (Police) is shifted to an independent institution. The president no longer has the authority to exercise power in security and public order against crimes in financial services. The OJK also lacks the constitutional mandate to ensure public security and order, which is the Police’s responsibility.
“Therefore, the authorization of investigation to any organ other than the Police should not eliminate or negate the Police’s law enforcement duty because the law enforcement duty must always be attached to the Police even though there are other state organs that are authorized to conduct investigation,” he explained.
Police Investigators’ Existence
In his testimony, Hibnu Nugroho, law professor of Jenderal Soedirman University, discussed the Police invesigators’ and the OJK civil servant investigators’ (PPNS) investigative authority into criminal acts as regulated in the KUHAP. Investigation is a part of preliminary examination and the gateway to case examination. Under the Indonesian judicial system, Hibnu argued, regardless of the type of criminal offense, Police investigators are part of the financial services sector’s investigators. Therefore, the articles of the P2SK Law challenged by this petition are not in line with the concept of justice in Indonesia.
“In conclusion, the P2SK Law should not eliminate the existence of the National Police as an investigator and the impact is that the investigation carried out by the OJK could potentially become invalid because in the end, Police investigators cannot carry out further investigations, leading to uncertainty in the eradication of criminal acts in the financial services sector,” said Hibnu.
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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.”
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. 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 : Nyi Mas Laras Nur Inten Kemalasari/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, October 19, 2023 | 21:12 WIB 137