Banking crimes committed by employees of State-Owned Enterprise (BUMN) banks are often immediately classified by law enforcement officials as corruption. The classification is based on the idea that criminal acts committed by employees of state-owned banks create loss to state finances, therefore the perpetrators are subject to Law No. 20 of 2001 on the Eradication of Corruption.
In fact, in addition to the Law on Eradication of Corruption, banking crimes involving employees of state-owned banks are regulated in Law No. 7 of 1992 on Banking.
There are indeed a number of articles in the Eradication of Corruption Law and Banking Law that often cause confusions. This has caused legal problems related to the question on which of the two laws should be applied.
The article is Article 49 of the Banking Law which regulates the actions of members of the board of commissioners, directors or employees of banks that are considered a banking crime and the threat of punishment against the crime.
This article is in opposition with Article 2 Paragraph (1) and 3 of Law No. 31 of 1999 as amended by Law No. 20 of 2001 on the Eradication of Corruption. The two articles of the Eradication of Corruption Law regulates that the actions of any person who can create loss to state finances or the country’s economy are considered criminal acts of corruption and about the threat of punishment for corruption.
In addition, the Constitutional Court has issued a Constitutional Court Decision Number: 25/PUU-XIV/2016 stating that the word can in Article 2 paragraph (1) and Article 3 of Law No. 31 of the Year 1999 on the Eradication of Corruption as amended by Law No. 20 of 2001 has no binding legal force.
In fact, countries that follow Continental European traditions, including Indonesia, recognize the principle of Lex Consumen Derogat Legi Consumte or one law absorbs another law. If an act satisfies the element of offense of two or more laws, it must then be clarified whether the facts in the act satisfy the first law or others.
The Lex Specialis Derogat Legi Generali principle stipulates that a specific law overrides a general law. In the event that there are two or more special legal regulations, it is also known as the derivative of the Lex Specialis Derogat Legi Generali principle, namely the Lex Specialis Systematisch principle.
According to Prof. Indriyanto Seno Adji, S.H., M.H., to determine which specific laws that must be enforced, the principle of Lex Specialis Systematisch or systematic specificity, applies.
For example, if personal subjects, objects of alleged acts that are violated, evidence obtained, the environment and the area of offense are in the context of banking, then the Banking Law is the one that must be enforced although other special laws (such as the Eradication of Corruption Law have an article that can include it) can be applied.
The lex specialis systematisch principle suggests that if an act can be charged under two specific laws, then it must be decided which of one of the two laws that is more systematically specific, where the act is committed and whether the addressee is more specifically special by considering who the perpetrator of the act is.
The addressee refers to the subject of the law that commits the act. These principles are present to answer when there is a conflict or clash between one law and another law, both of which are specific in nature.
In some cases involving the disbursement of state-owned bank credit facilities, employees of state-owned banks who receive or ask for rewards for their personal benefits, in order to provide facilities for others or customers in obtaining financing, bank guarantees, or other credit facilities, which then result in non-performing loans is usually charged under Article 3 of the Eradication of Corruption Law by investigators on the grounds that non-performing loans cause state financial losses.
The author is in the opinion that the more appropriate article to be imposed in such cases is Article 49 Paragraph (2) of the Banking Law.
The Eradication of Corruption Law has set limits for law enforcement to implement the law if there is a provision that expressly states the existence of violations that are categorized as a corruption crime as stipulated in Article 14 of the Corruption Act.
If we adopt the principle of argumentum a contrario to interpret Article 14 of the Eradication of Corruption Law , it disregards the crime as corruption if the violation of the provisions that do not state and/or expressly state that the violation is a crime of corruption.
Indeed, there is no provision that states that the banking criminal act stipulated in the Banking Law is a criminal offense of corruption. Therefore, based on the principle of lex specialis systematisch violation of prudential principles that are the basic principles in banking, which can also result in state financial losses, can not be automatically interpreted as an act of corruption.
The author consider that the violation is within the scope of banking crimes stipulated in the Banking Act based on several arguments. First, the material provisions related to banking crimes in the Banking Law are special and the formal provisions related to banking crimes in the Banking Law are more dominant and systematic. Second, the addressee or legal subjects that can be charged in this case are also special and are still within the scope of banking, namely employees of state-owned banks.
In addition, the Banking Law has its own legal norms and sanctions, both criminal law sanctions and administrative law sanctions. Based on these arguments, the principle of Lex Consumen Derogat Legi Consumte and the principle of Lex Specialis Systematisch can legally to be used in cases of banking crimes committed by employees of state-owned banks.
Thus, the author understands that Article 49 Paragraph (2) of the Banking Law is a more appropriate article to be imposed on employees of state-owned banks who receive or ask for rewards for profits personally in order to facilitate others in obtaining a down payment, bank guarantee, or credit facility from the bank.
Author / Contributor:
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Hatma Priza Akbar, S.H.
Associate Contact: Mail : hatma@siplawfirm.id Phone : +62-21 799 7973 / +62-21 799 7975 |