Expert: The Authority of OJK Investigators Causes Legal Uncertainty

JAKARTA, HUMAS MKRI - The rules of investigation authority by the Financial Services Authority (OJK) are considered not to provide legal certainty. This was stated by Professor of Business Law at Gadjah Mada University (UGM) Nindyo Pramono in a trial session of Law Number 21 of 2011 concerning the Financial Services Authority (OJK Law) on the 1945 Constitution on Monday (2/18/2019) in the Plenary Session Room MK.

The case registered with Number 102 / PUU-XVI / 2018 was requested by lecturers consisting of Yovita Arie Mangesti, Hervina Puspitosari, Sura Pria Priambada, and Ashinta Sekar Bidari. The Petitioners feel their constitutional rights have been harmed or have the potential to be harmed by the coming into effect of Article 1 point 1 and Article 9 letter c of the OJK Law, especially the phrase "investigation".

Nindyo as the Expert Petitioner revealed several reasons for the rules of investigative authority to cause legal uncertainty, including OJK investigation authority carried out by police investigators or Civil Servant Investigators (PPNS) following Article 6 of the Criminal Procedure Code. This, he continued, would actually trigger a dispute between the investigators of the National Police and PPNS at the OJK. In the context of authority, OJK investigators who can carry out investigations are related to their functions as supervisors of banking and non-banking.

Then Nindyo assessed the authority of the investigation by OJK was strange. He said that even though the institution has that authority, its employees do not have the authority to investigate. This, he continued, was not in accordance with the integrated criminal law system.

For Nindyo, OJK's authority function should be within the domain of state administrative law in the process of examination and investigation. "We can imitate the authority of the Business Competition and Supervision Commission (KPPU) which was adjudicated by the Court in 2016," he explained.

In addition, Nindyo also gave an example of OJK-like institutions in other countries that did not have the authority in the form of investigation. He considered it strange if the OJK in Indonesia had that authority. "In the UK, there is a Financial Service Authority (OJK UK) that has the authority to investigate. But because it didn't work effectively it was finally given back to the Bank of England, "he said.

Mixing Authority

Another Petitioner expert, Ratno Lukito said that the OJK model like in Indonesia is not unusual. This is because the OJK unites the authority of administrative oversight with the authority of investigations that are pro justicia . "In other countries, financial supervisors do not mix these two authorities. The authority to investigate is submitted to regular law enforcement or special institutions that have the authority to investigate," he explained.

On the other hand, he continued, the OJK model in Indonesia has the potential to cause OJK overlapping with law enforcement agencies such as the National Police.

In the previous application, the Petitioner felt that his constitutional rights were violated by the enactment of Article 49 paragraph (3) of the OJK Law. The applicant argues in carrying out his authority, Civil Servant Investigators (PPNS) have authority in accordance with the law which becomes their respective legal basis and in the implementation of their duties are under the coordination and supervision of the police investigator. This is as stipulated in Article 7 paragraph (2) of the Criminal Procedure Code. But according to the Petitioner, explaining that towards the investigative authority granted by the OJK Law to the OJK PPNS, there is absolutely no norm provision that explicitly states: "The authority of investigation as referred to in paragraph (2) is carried out in accordance with the provisions of criminal procedural law", or at least state: "Investigators of Civil Service Officers coordinate with Indonesian National Police investigators". The Petitioners questioned the authority of the investigation in Article 49 paragraph (3) of the OJK Law not to associate itself with the Criminal Procedure Code. It said that the OJK PPNS was authorized to ask for help from law enforcement officials. That is, continued the Petitioner, if it is not needed, then the OJK PPNS can conduct an investigation without coordinating or asking for help from other law enforcement officers, namely the National Police investigator.

The Petitioner stressed that if you see the authority of the OJK Investigator contained in Article 49 paragraph (3) of the OJK Law, there are some norms that violate the principle of due process of law and can lead to arbitrariness by OJK investigators. The applicant argues that Article 1 point 1 and Article 9 letter c of the OJK Law, especially the phrase "investigation", which gives investigation authority is contrary to the principle of due process of law in the criminal justice system , and does not provide fair legal certainty for someone suspected of committing a crime in the financial services sector. (Arif Satriantoro / LA)

Source: THE CONSTITUTIONAL COURT OF THE REPUBLIC INDONESIA

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