Constitutional Court dismissing the judicial review petition of Law No. 4 of 2023 on the Financial Sector Development and Reinforcement, Wednesday (11/29/2023). Photo by MKRI/Fauzan.

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Constitutional Court dismissing the judicial review petition of Law No. 4 of 2023 on the Financial Sector Development and Reinforcement, Wednesday (11/29/2023). Photo by MKRI/Fauzan.

JAKARTA (MKRI) — The Constitutional Court (MK) rejected the judicial review petition of Article 8 point 1, Article 1 point 1, Article 8 point 2, and Article 2 paragraph (1) of Law No. 4 of 2023 on the Financial Sector Development and Reinforcement (P2SK Law) on Wednesday, November 29, 2023 in the plenary courtroom. The case No. 95/PUU-XXI/2023 was filed by Inri Januar, a law lecturer.

“[The Court] adjudicated; declares the Petitioner’s petition inadmissible,” said Chief Justice Suhartoyo, accompanied by the eight other constitutional justices at a hearing to pronounce Decision No. 95/PUU-XXI/2023.

In its legal considerations, the Court stated that the Petitioner’s legal standing as a lecturer who claimed he could not explain the theoretical design of the OJK (Financial Services Authority), thus causing legal uncertainty that would have an impact on the students he teaches, did not justify [presumed] factual or potential loss of constitutional rights due to the enforcement of the norm being reviewed, which did not hinder the execution of the Petitioner’s profession as a lecturer. Thus, even if the norm being reviewed is indeed valid as argued by the Petitioner, it did not cause constitutional loss for the Petitioner who works as a lecturer. In fact, by working as a lecturer, the Petitioner can explain the current development of the OJK to students.

“The Petitioner’s qualification as a customer, just as his qualification as a lecturer, does not justify [presumed] a loss of constitutional rights due to the enforcement of the norm being reviewed because the norm did not prevent the Petitioner from obtaining his constitutional rights as a customer. Both as a creditor customer and a debtor customer, there has been protection and legal certainty in various laws and regulations, including laws on consumer protection, laws on deposit guarantee institutions, and laws on banking,” said Constitutional Justice Daniel Yusmic P. Foekh reading out the Court’s legal considerations.

Justice Foekh continued, since OJK’s micro-prudential supervision focuses on the performance of individual financial services institutions including banking, capital markets, and the non-bank financial industry, within the limits of reasonable reasoning, the uncertainty of OJK’s legal basis described by the Petitioner can only be considered to have caused a presumption of constitutional harm to financial services institutions as the object of supervision, examination, and investigation, which are OJK’s functions, authorities, and duties.

Based on these legal considerations, according to the Court, the enforcement of Article 1 point 1 in Article 8 point 1 and Article 2 paragraph (1) in Article 8 point 2 of the P2SK Law did not harm the Petitioner’s constitutional rights. Thus, the Petitioner had no legal standing in the petition. Although the Court had the authority to hear the petition, since the Petitioner did not have legal standing to file the petition, the Court did not consider the subject matter of the petition.

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At the preliminary hearing on Thursday, September 7, legal counsel Oktoriusman Halawa said that Article 8 point 1 and Article 2 of the P2SK Law are in violation of Article 28D paragraph (1) of the 1945 Constitution and the Constitutional Court Decision No. 25/PUU-XII/2014. He explained that the OJK receives its authority from the transfer of part of the authority of the central bank Bank of Indonesia (BI) to the OJK. The transfer is regulated in Article 34 paragraph (1) of the BI Law, which reads, “The task of Bank supervision shall be performed by an independent supervisory board for the financial services sector to be established by law.”

Halawa further explained that due to the removal of the legal basis for the OJK’s authority in the BI Law, if the OJK continues to exercise its authority, it is in violation of the principle of the rule of law as regulated in Article 1 paragraph (3) of the 1945 Constitution. In addition, it will result in legal uncertainty. Therefore, in the petitum, the Petitioner requested the Court to declare the Article 8 point 1, Article 1 point 1, Article 8 point 2, Article 2 paragraph (1) on the P2SK Law unconstitutional and not legally binding.

Author       : Utami Argawati
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.

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