Legal counsel of the Petitioners of Case Number 155/PUU-XXII/2024 on the judicial review of Article 312 of Law Number 4 of 2023 on Financial Sector Development and Strengthening (P2SK Law), Thursday (7/11/2024). Photo by MKRI/Bayu.

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JAKARTA, MKRI - Four people who work as Futures Broker Representatives (WPB) filed a petition to test Article 312 of Law Number 4 of 2023 on Financial Sector Development and Strengthening (P2SK Law) against the 1945 Constitution of the Republic of Indonesia to the Constitutional Court. The quality and competence of Futures Broker Representatives as a profession is the responsibility of the Commodity Futures Trading Supervisory Agency (BAPPEBTI) which is the body appointed by the Law as the Advisor and Supervisor of commodity futures trading.

The Petitioners of Case Number 155/PUU-XXII/2024 explained that Article 312 paragraph (2) of the P2SK Law contains an explicit provision mandating the government to stipulate a Government Regulation (PP) regarding the transfer of authority from BAPPEBTI to OJK no later than six months after the law is enacted. However, the government has yet to fulfill the law's order.

According to the Petitioners, this failure has created a legal vacuum that has serious consequences for legal certainty, stability, and protection of WPB's constitutional rights. Especially in obtaining guarantees, recognition, and fair legal protection, as guaranteed in Article 28D paragraph (1) of the 1945 Constitution.

“How to face the challenges in developing innovation in futures brokerage trading which until now still has conflicts, but this transition raises questions and losses for users who are here, especially regarding this transfer of authority,” the legal counsel of the Petitioners, Bagas Alkautsar, said in the preliminary hearing of Case Number 155/PUU-XXII/2024 on Thursday, November 7, 2024 at the Courtroom, Central Jakarta.

The Petitioners said that the substance regulated in Article 312 regarding the transfer of authority without adequate transitional guidelines resulted in uncertainty at the implementation level. This is contrary to the principle of clarity of purpose because the P2SK Law should be able to provide clear direction for all affected parties, including the WPB, business actors, and customers to support the financial sector strengthening.

With the lack of involvement of affected parties, such as WPBs and other business actors, the formation of the P2SK Law shows a lack of accommodating input, which ultimately has an impact on the mismatch between the original purpose of the law and the real needs in the field. According to the Petitioners, BAPPEBTI, as a supervisory institution under the Ministry of Trade, has supervised, licensed, and certified Futures Broker Representatives with comprehensive provisions and in accordance with international standards.

This supervision is carried out through a mechanism that has been regulated in detail in various regulations issued by BAPPEBTI, such as BAPPEBTI Chairman Regulation Number 9 of 2022 on Futures Broker Representative Licenses and BAPPEBTI Chairman Regulation Number 4 of 2024 on the Implementation of WPB Competency Tests. These procedures include competency tests, periodic audits, supervision of segregated account funds, and reporting systems that ensure the protection of customer funds and the professionalism of WPB.

The Petitioners mentioned that BAPPEBTI's expertise and experience in supervising commodity futures trading and directly managing the WPB licensing process has provided legal certainty and stability for all business actors in this sector. The supervision held by BAPPEBTI has also served to protect the rights of customers and maintain the integrity of the commodity futures market, so that this transfer of authority creates uncertainty in regulation and reduces the level of public trust.

Furthermore, the unclear transition mechanism, especially in OJK's supervision of WPBs after the enactment of Article 312 of the P2SK Law, has resulted in a legal vacuum in the procedures for supervision, competency testing, and protection of customer rights. This transfer is not accompanied by detailed guidelines, resulting in legal uncertainty for WPBs and other business actors.

The absence of definite guidelines regarding the supervision of WPB in OJK may threaten the legal certainty guaranteed by Article 28D paragraph (1) of the 1945 Constitution. Based on these considerations, the Petitioners requested that the authority to supervise and license WPB remain under BAPPEBTI to ensure legal certainty, market stability, and protection of the rights of customers and WPB.

In their petitum, the Petitioners asked the Constitutional Court to declare Article 312 of the P2SK Law contrary to the 1945 Constitution and has no legally binding force. In this case, the four petitioners are Yuli Puspitasari, Yuli Eni Kusrini, Rinaldi Andreas, and Udibowo Ciptomulyono.

Justices’ Advice

This case was heard by a panel of justices led by Deputy Chief Justice Saldi Isra, accompanied by Justice Enny Nurbaningsih and Justice Arsul Sani. According to Justice Enny, the petition submitted by the Petitioners was unusual, and there was a mistake in quoting phrases in the provisions of the norms of the tested articles that the Petitioners asked the Constitutional Court to interpret.

In addition, Justice Arsul said that in making a petition, the principle of “the most important thing is understood by the justices” should be remembered, not “the most important thing I understand”. Because this petition will certainly be read, examined, and decided by constitutional justices.

“So, you have to imagine that if I don't make it, but I read it, I immediately understand,” Justice Arsul said.

Then, Justice Saldi said the Petitioners had not elaborated on the explanation of the conflict between the norms tested and the norms in the Constitution, which became the touchstone or basis for testing in this petition. The Petitioners can explain the conflict with theory, comparison, or others.

Before closing the hearing, Justice Saldi stated that the Petitioners had 14 days to revise the petition. The Court must receive the file by Wednesday, November 20, 2024, at the latest. The Court will determine the next hearing.(*)

Author: Mimi Kartika

Editor: Lulu Anjarsari P.

PR: Fauzan Febriyan

Translator: Rizky Kurnia Chaesario

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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