The Financial Services Authority or hereinafter referred to as OJK is an independent institution established under Law Number 21 of 2011 on the Financial Services Authority. OJK functions to implement an integrated regulatory and supervisory system for all activities in the financial services sector. One of the objectives of the establishment of OJK is to protect the interests of consumers and people . To materialize this objective, and in accordance with its authority, namely to stipulate OJK regulations and decisions, OJK has issued OJK Regulation Number 6/POJK.07/2022 on Consumer and Public Protection in the Financial Services Sector (“POJK No. 6/2022”). POJK No. 6/2022 was issued to replace OJK Regulation No. 1/POJK.07/2013 on Consumer Protection in the Financial Services Sector (“POJK No. 1/2013”) considering that the financial services sector is increasingly complex and dynamic. POJK No. 1/2013 does not regulate OJK’s authority to file a claim for the interest of consumers, whereas in Article 30 in conjunction with Article 31 of Law Number 21 of 2011 on the Financial Services Authority (“OJK Law”), provisions on consumer and public protection must be stipulated in OJK regulations. OJK’s authority to file a claim is stipulated in POJK No. 6/2022, particularly Article 52 paragraphs (1) to (4). The author will discuss the OJK’s authority to file a claim, connected to the theory of prevailing civil law and civil procedural law in the Republic of Indonesia.
The authority of state or government agencies to file civil a claim is not new in the Republic of Indonesia. For example, in Law Number 32 of 2009 on the Environment, particularly Article 90 paragraph (1) it is stipulated that government agencies and local governments in charge of the environmental affairs have the authority to file a claim for compensation and a specific action in the event that there are activities that cause environmental pollution and/or damage resulting in environmental losses.
In the context of the environmental claim above, the state or government agency becomes the aggrieved party representing the public interest. This can be seen in Regulation of the Minister of the Environment Number 7 of 2014 on Environmental Losses Due to Pollution and/or Environmental Damage, where ‘environmental losses’ are defined as “losses arising from environmental pollution and/or damage which are not privately-owned right“. Furthermore, if the claim is successfully proven and granted by the court, the payment of compensation is considered as Non-Tax State Revenue (PNBP). Based on these matters, it can be concluded that the claim is filed if there is a public (non-private) loss, so that the state as an embodiment of public interes, can file a claim for compensation, the payment of which is received by the state.
In contrast to the environmental claim as the author described above, the claim by OJK as stipulated in Article 52 of POJK No. 6/2022 is filed on the basis of a private loss. Article 52 (1) b states that OJK may file a claim as a manifestation of consumer and public protection. Article 52 (3) a and b state that the claim is filed to: (i) recover the assets belonging to the aggrieved party from the party causing the loss, whether under the control of the party causing the loss or under the control of another party in bad faith; and/or (ii) to obtain compensation from parties that cause harm to Consumers and/or Financial Services Authority as a result of violations of the provisions of laws and regulations in the financial services sector.
Studying these provisions, we can clearly see that OJK files a claim for the interest of a third party who is aggrieved and not for the public interest. In fact, according to Retnowulan Sutantio, SH, and Iskandar Oeripkartawinata, SH, in their book “Civil Procedural Law in Theory and Practice”, it is stated that “in civil procedural law, a person who feels that his rights have been violated is called a plaintiff, while a person who is brought before the court because he is deemed to have violated the rights of that person or persons is called a defendant”. Taking this into account, it should be the party who feels aggrieved who files a claim, and not a third party.
It is true that in the context of civil procedural law, a party may file a claim as the attorney of the party filing the claim. Article 123 HIR states that both parties can be assisted or represented by an attorney, who is granted with the authority to do so by virtue of a specific power of attorney, unless the person granting the power of attorney himself is present. If using this approach, the author is wondering whether OJK files a claim as the attorney of the aggrieved party? Whereas Article 52 paragraph (5) of POJK No. 6/2022 states that, “a civil claim for the interest of consumer and public protection as referred to in paragraph (1) item b is filed based on the assessment of the Financial Services Authority and not upon the request of consumers” hence according to the author, OJK does not act as the attorney of the aggrieved party.
The last thing the author intends to take a closer look is the provisions of Article 52 paragraph (4), which states that compensation as referred to in Article 52 paragraph (3) item b is only used to pay for compensation to the aggrieved party. This raises 2 (two) questions in the author’s mind, namely as follows:
- Article 52 paragraph (4) does not mention the return of the assets belonging to the aggrieved party as stipulated in Article 52 paragraph (3) item a, in such case will these assets become the property of the State cq OJK? If so, where is the element of consumer protection? and
- In the event that OJK succeeds in winning the claim for compensation against the defendant, is the prayers for relief (petitum) demanded by OJK to order the defendant to pay for compensation, whether to OJK or to the aggrieved third party? In such case, is the aggrieved party withdrawn to be a party to the case as a co-defendant? Or as a plaintiff?
Based on research and to the best of the author’s limited knowledge, OJK has never used this authority, even though there have been many incidents where a financial institution has harmed its consumers. The author is of the view that, if this authority is intended to be materialized as fulfilling the objectives and functions of OJK, then OJK and the Supreme Court must sit together to formulate procedures for litigation involving OJK as the plaintiff.