28
Apr2022
Banking Law against Employees of State-Owned Banks in Indonesia

Application of Banking Law against Employees of State-Owned Banks in Indonesia

Criminal acts in the  banking sector committed by employees of a bank owned by  a State-Owned Enterprise (BUMN) are often  immediately considered by  law  enforcement officials as  corruption.  It 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, criminal acts in  the  banking sector involving employees of state-owned banks are regulated in Law No. 7  of  1992 concerning Banking.

There are indeed a number of articles in the Law on Combating  Corruption and  Banking Law that often  cause confusions. This has caused legal problems related to the application of 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 clashes 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 the actions of  any person who can create loss to state finances or  the country’s economy are considered criminal acts of corruption and 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 concerning 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, know 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 Corruption Act have a offense element that can include it) can be applied.

The lex specialis systematisch principle suggests that  if an act can be  charged under two specific laws, it must be considered which  of one of the two laws that is more systematically specific, where the act is committed and  whether the addressee is more specific special  by  considering who the perpetrator of the act is.

The addressee refers to the subject of the law that commits the acts.  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  Corruption Act  by investigators.  on the grounds that  non-performing loans cause state  financial losses.

According to  the author,  the more appropriate article to be imposed in such  cases is Article 49 Paragraph (2) of the Banking Law.

The Corruption Act  has provided limits that order 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.

Article 14 of the Corruption Act  if interpreted  argumentum a contrario has a meaning for violation of the provisions that do not state and / or do not  expressly state violations  It is a crime of  corruption, so the violation is not a crime of  corruption.

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 which are closely held principles  in banking, which can also  result in state financial losses, not   Immediately can be  interpreted as an act or criminal act of  corruption.

The author argues that the violation becomes 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 provisions formil related to banking crimes  in the Banking Law have been It is  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 this,   the principle of Lex Consumen Derogat Legi Consumte and the principle of Lex Specialis Systematisch  are eligible to be applied in cases of criminal acts  committed. 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:

 Hatma Priza Akbar, S.H.

Associate

Contact:

Mail       : hatma@siplawfirm.id

Phone    : +62-21 799 7973 / +62-21 799 7975

 

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