Constitutional Justice Arief Hidayat reading out Decision No. 59/PUU-XXI/2023, Thursday, (12/21/2023). Photo by MKRI/Bayu.
JAKARTA (MKRI) — The Constitutional Court (MK) re-interpreted the definition of investigators in financial service crimes as stipulated in Article 8 point 21 of Law No. 4 of 2023 on Financial Sector Development and Reinforcement (P2SK Law). The justices believe that investigation in financial service crimes can be carried out not only by investigators of the Financial Services Authority (OJK), but also by ones at other agencies that have the authority to conduct investigation based on a specific law as long as they continue to coordinate with police investigators in carrying out their duties.
The Court held that the granting of such investigative authority is justifiable, said Constitutional Justice Arief Hidayat on Thursday, December 21, 2023 while delivering Decision No. 59/PUU-XX/2023, petitioned 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, Bakhtaruddin, and Muhammad Fachrorozi (Petitioners I-VI).
Justice Arief said that the phrase “can only be carried out by investigators of the Financial Services Authority” in Article 8 point 21 of the P2SK Law, which contains amendment to Article 49 paragraph (5) of the P2SK Law, is conditionally unconstitutional, as long as it is not interpreted as “can be carried out by investigators of the Financial Services Authority.”
He added that the OJK’s investigation authority in financial services crimes in the norm had put restrictions on investigators from the Indonesian National Police, as well as resulted in the rejection of Police’s authority as a law enforcement agency that functions as main investigator. Furthermore, this is inconsistent with the substance of Constitutional Court Decision No. 102/PUU-XVI/2018, which grants the OJK investigative jurisdiction in collaboration with Police investigators. Furthermore, the Police may lose investigative authority in general and/or specific crimes, including financial service crimes, as a result of this.
“Based on that legal considerations, the provision of Article 8 point 21 of the P2SK Law, which contains an amendment to the phrase ‘can only be carried out by investigators of the Financial Services Authority’ in Article 49 paragraph (5) of the P2SK Law, is against the principles of the rule of law and has caused legal uncertainty that is guaranteed in Article 1 paragraph (3), Article 28D paragraph (1), and Article 30 paragraph (4) of the 1945 Constitution,” said Justice Arief at the ruling hearing presided over by Chief Justice Suhartoyo, Deputy Chief Justice Saldi Isra, and seven other constitutional justices.
Integrated Criminal Court System
Furthermore, in response to the Petitioners’ arguments on Article 8 paragraph 21 of the P2SK Law, which incorporates the words “certain employees” in Article 49 paragraph (1) letter c of the P2SK Law, the Court held that investigators play a significant and strategic role in the law enforcement process. As a result, the claim that there can be no other investigators than those specified in Article 6 paragraph (1) of the Criminal Procedure Code (KUHAP) is inaccurate because, as Justice Arief emphasized, the authority to conduct investigation does not belong solely to law enforcement agencies but also to other entities, as long as it does not interfere with the law enforcement agencies’ authority.
In other words, both the Police and other organizations have the authority to investigate in accordance with the domains specified by legislation. This means that, while the legislation gives other state agencies investigative jurisdiction, that authority must not be used to undermine the implementation of an integrated criminal justice system. This principle can be implemented by requiring non-law enforcement investigators from state institutions who are authorized to conduct investigation in accordance with their particular tasks and authorities to collaborate with Police investigators.
Because of the restricted ability to conduct investigation only up to the provincial level and the limited number of OJK investigators, the OJK must continue to collaborate with the Police, who have a higher number of investigators and infrastructure and can reach throughout Indonesia. As a result, the Petitioners’ concerns about the addition of ‘certain workers’ posing legal issues in the practice of criminal law enforcement are overstated. This is due to the fact that, in order to cope with the complexities of criminal law enforcement in the financial services sector, the OJK needs to strengthen its staff’s expertise by equipping them with unique competencies to better comprehend investigation methodologies.
“Thus, the granting of investigative authority to investigators in other agencies who obtain authority to conduct investigation based on a specific law in carrying out their duties, as long as they continue to coordinate with Police Investigators, is justifiable,” said Justice Arief in the plenary courtroom.
As a result, in its verdict, read out by Chief Justice Suhartoyo, the Court declared the phrase “can only be carried out by investigators of the Financial Services Authority” in Article 8 point 21 of the P2SK Law in Article 49 paragraph (5) of Law No. 21 of 2011 on the Financial Services Authority (OJK Law) unconstitutional and not legally binding if not interpreted as “can be carried out by investigators of the Financial Services Authority.”
“Thus, the norm of Article 8 point 21 of Law No. 4 of 2023 on Financial Sector Development and Reinforcement (P2SK Law) that stipulates the amendment to Article 49 paragraph (5) of Law No. 21 of 2011 on Financial Services Authority (OJK Law) reads in full ‘Investigation of criminal offenses in the financial services sector can be carried out by investigators of the Financial Services Authority,’” said Chief Justice Suhartoyo.
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The Petitioners challenged Article 8 point 21 of Article 49 paragraph (5) and Article 8 point 21 of Article 49 paragraph (1) letter c of the P2SK Law. The Law had eliminated the constitutional right of Petitioner I, a private legal entity, to defend its members’ legal interests as workers and citizens. They were 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 believed the P2SK Law had led to constitutional issues in terms of the OJK’s investigators into certain crimes. 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 believed the granting of sole authority to OJK investigators had resulted in the rejection of the criminal report he lodged and reflects legal uncertainty in the law enforcement process. He also alleged that the OJK had 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 allegedly reduced 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 was a court decision in the a quo case, during which Law No. 21 of 2011 on the Financial Services Authority would apply.
Author : Sri Pujianti
Editor : Lulu Anjarsari P.
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, December 21, 2023 | 16:16 WIB 92