Legal Problems of the Financial Services Authority and the National Police of the Republic of Indonesia in Enforcing Banking Crimes

The Financial Services Authority in practice often face institutional problems that still rely on the position of outside investigators, but on the other hand it must maintain its independence. The purpose of this study is to examine and to analyze the Legal Problems of the Financial Services Authority and the National Police of the Republic of Indonesia in Enforcing Banking Crime. The method used in this study was the constructive paradigm. The research approach used was empirical juridical, namely legal research. The object of study were provisions and enforcement or implementation of legal provisions in action on every legal event that occurs in the community (in concreto). The data analysis used qualitative analysis. The results of the study found that the problem of the Financial Services Authority and the National Police of the Republic of Indonesia in conducting criminal acts against banking crimes was due to legislative factors or legal substance, structure and legal culture. Provisions of Article 183 of the Criminal Procedure Code, in which Civil Servant Investigators or PPNS are not necessarily able to collect all the evidence specified. The Second factor is the Law Enforcement Officials. In quality, the law enforcement factor that impedes the role of the FSA in investigating banking crimes is the limited professionalism in the field of investigation, so that knowledge and technical skills of investigation need to be improved. FSA in investigating banking crimes must recruit Police Investigators and Prosecutors, FSA must make an agreement with Polri in conducting investigations into banking crimes so that they can immediately arrest suspects who are considered to have committed banking criminal acts. The third is the cultural factors of society. In www.scholink.org/ojs/index.php/jar Journal of Asian Research Vol. 3, No. 2, 2019 117 Published by SCHOLINK INC. terms of the cultural factors of the community, the intensity of the community in its involvement in enforcement and supporting the investigation will be hampered by the lack of clarity in the position of the investigative institution.


Introduction
Banking crime is increasing today, the modus operandi is even more sophisticated. In fact, in some cases, mafia syndicates are involved, both from within and from abroad. In addition, more than 90% of Banking Crimes are committed through the cooperation of outsiders and people within the bank. They use computers as a means of crime, which is one of the crystals of the white collar crime (Note 1).

In Law Number 21 year 2011 concerning the Financial Services Authority (in Indonesian called as
Otoritas Jasa Keuangan or OJK). The government has granted authority to the Financial Services Authority (which is commonly abbreviated as FSA) as an independent and free agency from other parties, which has the functions, duties, and authority to regulate, supervise, examine and investigate as referred to in this Law (Article 1 Paragraph 1).
In the case of investigations, the Financial Services Authority also has a role in the case of an investigation into the financial service crime. The FSA law regulates it in Article 49 which reads: 1) In addition to the Indonesian National Police Investigation Officer, certain Civil Servants Officers whose scope of duties and responsibilities include overseeing the financial services sector within the FSA, are specifically authorized as investigators as referred to in the Criminal Procedure Code.
2) Civil servants as referred to in Article 27 paragraph (2) may be appointed as Civil Servant Investigators as referred to in paragraph (1). The presence of the Police against banking crimes is another form of G.P Hoefnagels's idea who stated that crime prevention efforts can be pursued by the application of criminal law application; prevention without crime (prevention without punishment); and influence the public's view of crime and punishment through mass media (influencing views of society on crime and punishment/mass media) (Note 2).

3) Civil Servant
The above provisions have confirmed that the Police of the Republic of Indonesia as investigators including investigators have the right and authority to carry out investigations into all criminal acts, including criminal acts in the financial services sector (Banking and others). On the other hand, here it can also be concluded that based on the mandated authority in the legislation, there is a dualism of the position of the crime handlers in the financial sector.
Likewise, the Financial Services Authority Act regulates its own programs, especially regarding investigations. This will raise the question of whether there will be an investigation by FSA investigators in the same criminal offense, where the right and authority of the investigation to the FSA criminal offense is also owned by other existing investigators. This situation will likely not be in b. Criminal acts in the banking sector are: 1) All types of acts that violate the law relating to activities in running a bank business, both banks as targets and as a means. 2) Crimes that do not only cover violations of the Banking Law, but also include criminal acts of fraud, embezzlement, forgery and other criminal acts insofar as they relate to banking institutions.
Moch. Anwar distinguishes the meaning of banking crime with criminal acts in the banking sector based on the treatment of regulations on acts that have violated the law relating to activities in running a bank's business (Note 9). Especially for banking crimes, Indriyanto Seno Adji sees in two sides of understanding, namely narrow and broad. In a narrow sense, banking crime is only limited to actions categorized as criminal acts according to the Banking Act. While in broad terms, banking crimes are not limited to those regulated by the Banking Law, but also include actions that are formulated in criminal acts that disrupt the economic sector broadly, which also includes capital market crime, computer crime, both with it arising from losses to private companies and Government and BUMN, fiscal and customs (custom crime) (Note 10).
In the context of similar perceptions of the notion of banking crime, Bank Indonesia in Bank Indonesia Classification of banking criminal acts into crime is based on the imposition of a more severe sentence than a violation. This is because the bank is an institution that stores funds entrusted by the community to them, so that actions that can cause damage to public trust, which basically will harm banks and the community, should always be avoided. The expectation of the classification of banking crimes as a crime, so that more compliance can be established with regard to the provisions in the Banking Law.
While the Sharia Banking Law does not distinguish between sanctions for banking crimes and lists This memorandum of understanding is valid for a period of three years from the date of the signing of this memorandum of understanding. It can be extended based on BI, POLRI and RI Prosecutor's approval by first coordinating no later than three months before the change or three months before the end of the memorandum this can be terminated before the term provided that the party ending the memorandum of understanding notifies the intent in writing to the other party no later than three months before the end of this memorandum of understanding. Costs arising from this activity are charged by Indonesian banks in accordance with applicable regulations in Indonesian banks.
Regarding the relationship between FSA and Polri, the Financial Services Authority ( 1) Security Sector, through FSA security activities and FSA activities; 2) Field of coordination, through the establishment of a coordination forum between the leaders of the FSA and the National Police or between controlling officials, discussing the direction and strategy of law enforcement in the financial services sector, and discussing the effectiveness of handling, analyzing and evaluating the implementation of criminal acts in the financial services sector. In addition, in the framework of this coordination, a working group will be formed at a more technical level involving the FSA and Polri leaders in the region; 3) The field of assignment and termination of the assignment of members of the National Police This synergy is very important, considering that Banking as a financial institution has a very strategic role in economic activities through its business activities to raise public funds and channel financing for productive and consumptive businesses, as well as determining the direction of government and monetary policy formulation in supporting the stability of national development, especially to be able to be a safe place of deposit of funds, a place that is expected to carry out financing activities for the smooth running of the business and trade world.
However, there is a disharmony of regulations in which the Financial Services Authority Act regulates its own programs, especially regarding investigations. This will raise the question of whether there will be an investigation by FSA investigators in the same criminal offense, where the right and authority of the investigation to the FSA criminal offense is also owned by other existing investigators. This situation will likely not be in harmony with the integrated criminal justice system. Integrated criminal justice system has an understanding of the integration of investigators in the field of criminal acts. One of the pillars of an integrated handling system, is the need for coordination from investigators. With the existence of the Financial Services Authority investigator, this will lead to a dispute over the case in the investigation of the FSA criminal offense and there will be overlapping of authority which leads to the existence of nebis in idem. The Financial Services Authority (FSA) is an independent and independent institution that is free from interference from other parties, which have functions, duties and authorities

Problems in the Law of the FSA Authority of the Republic of Indonesia in Enforcing Criminal Acts against Banks
The new authority carried out by FSA in accordance with article 9 (c) is conducting an investigation. In  Although it is normatively stated that the FSA is an independent institution, in some circles there are still doubts about the independence of the FSA. In its implementation, FSA is led by a Board of Commissioners consisting of 9 members as stipulated in Article 10 paragraph (1) of the FSA Law. The composition of the Board of Commissioners (DK) which will be occupied by former employees of certain financial institutions, becomes the basis for doubts that the FSA will be truly independent.
As is known that the crisis that hit in 1998 had made the Indonesian financial system in ruins. Since investigations. This will raise the question of whether there will be an investigation by FSA investigators in the same criminal offense, where the right and authority of the investigation to the FSA criminal offense is also owned by other existing investigators. This situation will likely not be in harmony with the integrated criminal justice system. Integrated criminal justice system has an understanding of the integration of investigators in the field of criminal acts. One of the pillars of an integrated handling system, is the need for coordination from investigators (Note 12).
To carry out regulatory tasks, Article 8 of the FSA Law gives authority related to the regulation of   the aim that all financial service activities in the financial services sector be organized on a regular, fair, transparent and accountable basis, and able to realize a financial system that grows sustainably and stably, which in the end is able to protect the interests of consumers and society.
Here, the main problem is legal certainty that is not implemented properly. Certainty is a part of the public interest (Note 13).
Legal certainty is also considered as one of the conditions that must be fulfilled in law enforcement.
The principle of legal certainty means, the attitude or decision of any State administrative official may not cause legal shock (Note 14).
This view is justified by Gustav Radbruch. In its enforcement, the law is required to fulfill the three domains of enforceability that Gustav Radbruch called triadism which include three legal enforces, Muchtar Kusumaatmadja's opinion on the position of legal certainty was also emphasized by arguing that the main purpose of the law if it was reduced to just one thing was order which was made as a basic requirement for an organized society. Another objective of the law is the achievement of justice which varies in content and size, according to society and its era. Furthermore, to achieve order, the existence of legal certainty in human relations in the community is attempted, because it is impossible for humans to develop the talents and abilities God has given him optimally without the existence of legal and order certainty (Note 16).
Descartes argued that legal certainty can be obtained from the sanction method applied to legal subjects both individuals and legal entities that emphasize the process of orientation of the implementation process not on the results of implementation. Certainty provides clarity in carrying out legal actions when implementing contracts in the form of achievements even when the contract is in default (Note 17).
At the level of the problem of investigation, it is also a crucial problem based on a number of main problems both in the realm of structure and substance. The description is as follows (Note 18 Code, where PPNS is not necessarily able to collect all specified evidence that is. 2) Factors of Law Enforcement Officials. The factor of law enforcers that hindered the role of the Financial Services Authority (FSA) in investigating banking crimes was that the FSA PPNS personnel were limited in quantity to investigate banking crimes. In connection with the lack of FSA personnel, it is necessary to increase the number of FSA PPNS that specifically conduct investigations into banking crimes, so that investigators are not faced with a burdensome workload.
In quality, the law enforcement factor that impedes the role of the FSA in investigating banking crimes is the limited professionalism of the work of officers in the field of investigation, so that knowledge and technical skills of investigation need to be improved. FSA in investigating banking crimes must recruit Police Investigators and Prosecutors, FSA must make an agreement with Polri in conducting investigations into banking crimes so that they can immediately arrest suspects who are considered to have committed banking criminal acts. In addition, the FSA must also make an agreement with the Attorney General's Office to be able to bring down and prosecute the accused of banking crime. FSA must also be given full authority in acting to investigate allegations, violations and crimes in the banking sector. Based on the description above, it can be stated that the factor of law enforcement officers that can hinder the role of the Financial Services Authority (FSA) in investigating banking crimes is that the FSA civil servant personnel are limited in quantity to carry out investigations into banking crimes. In addition, quality is the limited professionalism of the work of officers in the field of investigation, so that the knowledge and technical skills of investigating criminal acts need to be improved.
3) Cultural factors of society. In terms of the cultural factors of the community, the intensity of the community in its involvement in enforcement and supporting the investigation will be hampered by the lack of clarity in the position of the investigative institution. These legal cultural factors include improved both by the FSA and police investigators who assist the FSA.
The inhibiting ideas mentioned above are part of the problem in the field related to the legal system that is not running optimally. Friedman divides the legal system into three (3) components, namely (Note

19):
1) The substance rule of the law, which covers all written and unwritten rules, both material law and formal law.
2) Structure of the law, covering legal institutions, legal apparatus and law enforcement systems.
Legal structures are closely related to the justice system carried out by law enforcement officials, in the criminal justice system, the application of law enforcement is carried out by investigators, prosecutors, judges and advocates.
3) Legal culture, is an emphasis in terms of culture in general, habits, opinions, ways of acting and thinking, which direct social power in society.
The three components of the legal system according to Lawrence Friedman above are souls or spirits that move the law as a social system that has special characteristics and techniques in its study.
Friedman dissected the legal system as a process that begins with an input in the form of raw materials, namely in the form of sheets of paper in a concept of claim filed in a court, then the judge manages the raw materials to produce an output in the form of a decision (Note 20).
Input in the form of a claim concept or indictment in a system is an element of social attitudes and values for the demands of the people who move the legal system. If the community does not make demands for values and attitudes that they consider contrary to their expectations either individually or in groups, then there will be no concept of a claim or an indictment that goes to court. If there are no claims or charges as input in the system, the court will not work and will never exist (Note 21). But of course a legal system is not a machine that works with definite mechanisms and processes. Legal experts with their ideal ideas want the law to be definite, predictable, and free from subjective matters in other words the law must be very programmed, so that every input that is entered and processed will produce a definite and predictable output. Therefore everything that outputs other than that will be seen as unfair (Note 22).
The ideal idea above is an idea that is impossible to realize in a common law legal system or a civil law legal system. This is inseparable from the unique and special character of the legal system as a specific social science. As expressed by Friedman that those who play an important role in a court process are Judges and lawyers. The judges in deciding the case they handled were inseparable from various factors, both background, attitudes, values and intuition. One study shows that Democrats at the Michigan Supreme Court are more sensitive than Republicans to the demands of unemployment (Note 23). Stuart Negel measures the role of lawyers in every judicial process based on the background, expertise and experience of lawyers for decision-making. As a result, he found that lawyers who were older and richer tended to win cases (Note 24).
Weaknesses in the aspect of the legal system are considered to be negligible, because there has been an agreement between the police and FSA in bridging the problem of the investigation process in the banking sector, but these problems are still a dilemma in the implementation. This is also what happens between the investigation process in the police and KPK scope, which often overlaps in carrying out authority substantially and procedurally.
In addition, the weakness of the legal system's entry into force also implies the absence of legal certainty. Certainty is a definite matter (condition), provision or provision. The law must be definite and fair. It must be a guideline for conduct and fairness because the behavioral guidelines must support an order that is considered reasonable. Only because it is fair and carried out with certainty can the law carry out its functions. Legal certainty is a question that can only be answered normatively, not sociology (Note 25).
According to Kelsen, law is a norm system. Norms are statements that emphasize the "should" aspect which tend to see law as something autonomous, independent, because for adherents of this thought, law is nothing but a collection of rules. For adherents of this school, the purpose of law is nothing more than just guaranteeing the realization of legal certainty. Legal certainty is realized by law by its nature which only makes a general rule of law. The general nature of the legal rules proves that the law does not aim to realize justice or benefit, but solely for certainty (Note 27).
The new thing in this FSA Law is that the FSA has the authority to carry out investigations which are very much needed by legal certainty, which is stated in the FSA Law. This authority is not owned by Bank Indonesia as a bank supervisor so far. Wider authority in the context of this examination is like the authority of law enforcement officials. FSA can act more decisively if it finds violations/fraud from the results of its examination. But keep in mind that as described above, the banking industry is a systemic belief industry. For banking supervisors/examiners, they have a duty to see from two sides.
The law enforcement/provisions and the other side are so that national banks continue to grow healthily, so that they must have a strategy so that if they find a violation, don't let the water become cloudy. This is somewhat different from other law enforcement officials. In addition to this, the FSA operational budget will be financed through the state budget and collected from supervised institutions (financial & banking institutions) (Article 37 of the FSA Law). This is rather strange, on the one hand FSA is given Legal certainty is a guarantee of a law that contains justice. The norms that promote justice must truly function as rules that are obeyed. According to Gustav Radbruch justice and legal certainty are permanent parts of the law. He argued that justice and legal certainty must be considered, legal certainty must be maintained for the security and order of a country. Finally, positive law must always be obeyed. Based on the theory of legal certainty and the value to be achieved, namely the value of justice and happiness (Note 28). What is done in the FSA's role in the investigation is one of the roles of examination. Examination is a series of activities to search for, collect, and process data and/or other information carried out by the

Conclusion
Legal Services of the Financial Services Authority and the National Police of the Republic of Indonesia evidence. The Second Factor is the Law Enforcement Officials. The factor of law enforcers that hindered the role of the Financial Services Authority (FSA) in investigating banking crimes was that the FSA PPNS personnel were limited in quantity to investigate banking crimes. In connection with the lack of FSA personnel, it is necessary to increase the number of FSA PPNS that specifically conduct investigations into banking crimes, so that investigators are not faced with a burdensome workload. In quality, the law enforcement factor that impedes the role of the FSA in investigating banking crimes is the limited professionalism of the work of officers in the field of investigation, so that knowledge and technical skills of investigation need to be improved. The three cultural factors of society. In terms of cultural factors of society, the intensity of the community in its involvement in enforcement and supporting the investigation will be hampered by the lack of clarity in the position of the investigative institution.