Principles of Recognizing Service Users in Corruption Prevention, Money Laundering and Terrorism Financing
Rolib Sitorus1*
1 Universitas Pelita Harapan, Indonesia
*Corresponding Author: [email protected] Accepted: 15 January 2023 | Published: 31 January 2023
DOI:https://doi.org/10.55057/ajlg.2022.4.4.4
__________________________________________________________________________________________
Abstract: The implementation of a clean and good government is one of the important principles in the implementation of executive functions in the administration of a modern state today. The general principles of good governance in public services require guidelines for state administration officials to carry out their functions efficiently, effectively and transparently in order to achieve good public services. Efforts to implement an efficient, effective and transparent government can be carried out in various aspects of government, one of which is in the implementation of government goods and services procurement projects. In this aspect, it is very vulnerable to abuse of authority, especially in relation to the use of state money provided by the government. State money is often misused intentionally by actors in the procurement of goods and services. In addition to the procurement of goods and services, other activities related to the use of money are money laundering and terrorism crimes that use funds as proceeds of crime, such as arms trafficking, prostitution, drug transactions, and other crimes. In this paper, the aim is to find out the government's efforts in applying the principle of recognizing service users in an effort to prevent corruption, money laundering, and acts of terrorism that use money or funds originating from crime. The method used is to collect library materials, both legislation, reference books, scientific journals, and others as well as utilizing field data from the experience of examining the implementation of notary protocols in the North Sumatera area. With this method, it is hoped that the results of the efforts made by the government through the principle of recognizing service users through the procurement of goods and services, carrying out duties in the position of a notary, and preventing acts of terrorism.
Keywords: Service users, corruption, money laundering, terrorism
___________________________________________________________________________
1. Introduction
The Government of Indonesia, in the framework of carrying out efforts to prevent and supervise acts of corruption, money laundering and crimes of terrorism, has issued laws and regulations as the legal basis. As mandated in the 1945 that Indonesian Constitution is a state based on law, this clearly states that the implementation of the life of the Indonesian nation and state must be based on statutory regulations as positive law. State administrators and legislators sincerely desire to organize a clean and authoritative government in accordance with the general
principles of best governance. The existence of certainty based on law is one of the principles that puts forward the legal basis or law, properly and fairly in the life of the state.1
Corruption practices that occur in various activities specifically in government administration, among others, are carried out in work contracts for the procurement of goods & services by the government, infrastructure projects in various regions. These are activities that are prone to abuse of authority which in turn leads to corruption. In the rules of the Republic of Indonesia, acts of corruption are classified as an extraordinary crime which is equated with crimes against humanity as violations of human rights (HAM). The crime of terrorism is also included as an extraordinary crime as a violation of human rights.
Entering the reform order which has an agenda for eradicating corruption, will also eradicate money laundering crimes. Meanwhile, with the increase in intolerant actions in various aspects and various forms, it has finally led to a new form of crime, namely acts of terrorism that were born as a form of radical action carried out by certain groups of people even on behalf of certain groups or religions. In order to anticipate crimes in the form of corruption, crimes of money laundering and crime of terrorism, the Government of Indonesia has issued laws and regulations.
After the end of the new order to carry out the big agenda of the reform order, namely to eradicate corruption, UU no. 31 of 1999 concerning the Eradicate of Corruption Crimes, as later the law was amended with the issuance of Law no. 20 of 2001 concerning Amendments to UU no. 31 of 1999 concerning the Eradicate of Corruption Crimes. This is the initial period of seriousness to make efforts to eradicate corruption in Indonesia. In the 2009-2014 period, UU no. 8 of 2010 concerning the Prevention and Eradication of Money Laundering Crimes, and UU of the Republic of Indonesia Number 9 of 2013 concerning the Prevention and Eradication of Terrorism Financing Crimes. As an implementation provision, Minister of UU and Human Rights Regulation No. 9 of 2017 concerning the Application of Service PMPJ for Notaries. This provision is considered to be a guide and direction for a notary in carrying out this task to identify the parties who will make the deed, the notary being one of the spearheads used by the government to anticipate acts of money laundering or terrorism financing crimes.
Recognizing service users in legal terminology in Indonesia is a new term that gives the meaning of an activity carried out to find out in detail the background of the parties in activities related to finance, for example for goods procurement projects within the government environment in implementing a project it must be known:
a. Clearly who is the official making the commitment, the official using the budget, the power of attorney for the user of the budget, and others;
b. And other parties must also clearly know the activities carried out by the contractor or project contractor, the guarantors whether they are individuals or through legal entities;
c. Affiliation of financial institutions or financing institutions involved in the implementation of a government project, for example, in the government procurement of goods & services project.
Indonesia's constitutional journey on an ongoing basis makes principle efforts to recognize service users, dividing 2 (two) major parts of the field, namely:
1 17 AAUB and its Explanation “https://www. Hukumonline.com/klinik/a/17-asas-asas-umum-Government- yang-baik-dan-explanation-lt62d8f9bedcda1”, accessed on 24 November 2022.
a. Prevention of criminal acts of corruption, in a series that is regulated in hierarchical legislation with the issuance of: TAP MPR, UU, PP to other lower implementing regulations, both within the scope of executive, legislative and judicial powers.
b. Prevention of money laundering, as well as acts of financing activities related to terrorist activities that can occur within the scope of a country or international terrorism. In these two activities related to finance, it can be carried out through networks within the Indonesian state and also in collaboration with foreign parties or institutions outside the country of Indonesia, because acts of money laundering and terrorism financing are closely related to certain parties in the country. outside Indonesia.
In this writing, these activities are important related to PMPJ carried out by parties in government procurement of goods and services, and by a notary in the activity of issuing deed or agreements through a notarial deed made before a notary.
The problem in this research is how is the application of PMPJ in preventing and eradicating acts of corruption, money laundering and terrorism funding crimes?
2. Research Methods
With regard to the data in the writing of this study, the data collection was carried out by reviewing statutory provisions, as well as conceptual methods or approaches through a review of the literature. An approach through legislation and a conceptual approach are used to identify and clarify the core themes of this research on PMPJ preventing corruption crimes, preventing money laundering crimes, and crimes related to the activities of financing acts of terrorism.
This is what will be argued theoretically based on the concept as well as practically what happens in the field of law every day, for example through the use of notary services.
The material collected related to the problems in the research is then analyzed in a qualitative normative way, namely substance analysis. This analysis is carried out by reviewing regulatory articles and researching practices that occur in the implementation of laws to get answers to the problems being discussed and researched.
3. Research Results and Discussion
3.1. PMPJ Principles in Prevention of Corruption Crimes
The discussion regarding the occurrence of a criminal act of corruption, especially in the administration of government, is always related to the running of the wheels of government.
Within the scope of state administration legal knowledge, it is known that there are general principles of good governance (AAUB) which form the philosophical basis for good state administration which is carried out through state organs, whether they are executive, legislative or judicial institutions.
Government officials who have the authority to carry out certain actions in carrying out their actions or actions are not bound by the provisions of the law; written regulations, besides that government officials must pay attention to laws that live in society but are not written, namely AAUB.2 AAUB wants that in the administration of state government there is no abuse of power or authority. In addition, there is a principle, namely the principle of meaningful accountability
2 Ridwan HR, 2011, State Administrative Law (Revised Edition), PT Raja Granfindo Persada, Jakarta, p. 235.
where every activity and until the end result must be accountable to the public or to the people as the highest sovereign in the country in accordance with statutory rules as positive law.3 The passage of time in the course of the history of the Indonesian government from the old order to the new order and then entering the reform era, an important issue that always arises is how to organize a clean and authoritative state (good governance) that is free from corruption. Since the old days, the issue of corruption has emerged as a hot topic of discussion among the public. In the framework of preventing and eradicating corruption crimes, there are several provisions that form the legal basis, namely:
(1) PERPU No. 24 of 1960;
(2) TAP MPR RI No. XI/MPR/1998;
(3) UU no. 31 of 1999;
(4) UU no. 30 of 2002;
(5) UU no. 19 of 2019.
The above laws become the legal basis in the framework of preventing and eradicating corruption crimes that have occurred in Indonesia.
In line with the development of regulations on the prevention and eradication of corruption in connection with the research for this writing, how is PMPJ implemented, and what exactly is meant by PMPJ itself. PPATK Regulation Number 7 of 2017 in Article 1 Number (3) states that Recognizing a Service User is a principle applied by other goods and/or service providers in order to understand the profile and transactions of service users by carrying out their obligations, whereas in Number (5) service users is a party that uses services from other providers of goods and/or services.
Corruption crimes often occur in goods & services procurement projects, especially those held by the government. Some opinions about the meaning of corruption state that:
i. Corruption is defined as an act fraudulently. Fraudulent acts are criminal acts within the scope of crime that are detrimental to the state.
ii. The term corruption applies to many fields, namely the problem of bribery, which is related to acts of manipulation in the economic sector, and related to the field of public interest.4
Corruption is indeed seen as an extraordinary crime, therefore it requires extraordinary efforts to eradicate it. Efforts to eradicate acts of corruption consisting of two major parts, namely (1) acts of enforcement, and (2) actions of prevention, will never succeed optimally if they are only carried out by the government alone without involving the participation of the general public.5 Efforts to prevent and eradicate corruption as an extraordinary crime that harms the state and ultimately also the people of the State of Indonesia, the government takes one preventive step by carrying out what is known as the principle of recognizing service users (PMPJ). So then how do you carry out this PMPJ related to the use of state funds through the work of procuring goods and services by the government? This is an important discussion in this research.
3 Ibid.
4 Ministry of Ristekdikti, 2018, Anti-Corruption Education for Higher Education (Revised Edition), p. 2.
5 Anti-Corruption Education Book for Higher Education, “https://aclc.kpk.go.id/materi-pembelahan/education/
books/books-education-anti-corruption-for-perguruan-tinggi”, accessed December 1, 2022.
Indonesia as a country based on law (rule of law), first regulates its regulations in statutory provisions. This PMPJ is carried out as part of the implementation of the legislation as previously stated which is the legal basis for preventing & eradicating corruption. In connection with the work of procuring goods and services, the principle of introduce service users is regulated in:
(1) RI Rules on UU & Human Rights No. 9 of 2017;
(2) PPATK No. 7 of 2017.
The prevention of corruption in the procurement of goods and services carried out by the government, according to the regulations issued by the PPATK above, is through the principle of recognizing service users in Article 4, namely:
(1) Providers of other goods and/services are required to formulate, stipulate, and implement PMPJ policies and rules in a firm and sustainable manner.
(2) The PMPJ referred to in Paragraph (1) above contains:
a. identification of Service Users;
b. data matching of Service Users;
c. supervision of Service Users.
(3) The providers of other goods and/or services referred to in paragraph (1) provide expert services for the purposes or for and on behalf of the Service User regarding: a. there is an element of buying and selling property; b. existence of management of money, securities, and or other financial service products; c. management of current accounts, savings, time deposits, and/or securities accounts; d. corporate operation & management;
and/or e. establishment, purchase and sale of legal entities.
The provisions in PPATK Number 7 of 2017 concerning PMPJ for Providers of Other Goods and/or Services, provide a wide scope for prevention so that corruption does not occur in procuring other goods and services.
3.2. PMPJ in the Prevention and Eradication of Money Laundering Crimes
The term money laundering or money laundering is a term that we are familiar with, especially when talking about criminal acts of corruption. In general, money laundering is defined as ways to enrich oneself by obscuring the origin of money so that it is not clear.6 The definition of money laundering is all actions that are in accordance with the elements of a criminal act.
In addition to the term money laundering, it is also necessary to understand the term financial transactions, namely activities to make or obtain placement, deposits, withdrawals, overbooking, transfers, payments, giving or donations, safekeeping, and/or exchanging a sum of money or other actions and/or activities related with money.7
As with the discussion regarding the prevention and eradication of criminal acts of corruption committed through PMPJ, for money laundering crimes PMPJ is also implemented by involving many parties such as instruments stipulated by BI, banking institutions, or through a notary related to financial transactions. Regulations on the implementation of PMPJ in preventing and eradicating money laundering crimes are contained in the following provisions:
(1) UU no. 8 of 2010;
(2) PP No. 43 of 2015;
(3) BI Regulation No. 19/10/PBI/2017;
(4) Regulation of Minister of Law & Human Rights No. 9 of 2017.
6 Explanation of the Crime of Money Laundering and Its Origins, “https://nasional.tempo.co/read/1571851/
penjuangan-tindak-pidana-penwashan-uang-dan-their origins”, accessed on 01 December 2022.
7 Article 1 Number (4), Law no. 8 of 2010.
In order to prevent the crime of money laundering through the implementation of PMPJ, several methods can also be carried out by several instruments, including through the role of Bank Indonesia, the role of a banking institution, or through the role of a notary.
Implementation of financial transactions by payment service providers whether in the form of banks or non-banks, by BI in preventing money laundering crimes, namely by carrying out risk management, in BI Regulation Number 19/10/PBI/2017.
The role of banking institutions in preventing money laundering crimes is by taking into account obligations to banks and obligations to customers or prospective customers, namely:
(1) The requirement for banks to implement PMPJ, which requires complete consumer data, including the origin and purpose of using money, monitoring accounts and transactions of money owners, identifying suspicious financial transactions;
(2) Make a report to PPATK for all unusual money transactions and cash transactions of five hundred million rupiah or above.
3.3. PMPJ in the Prevention and Eradication of Terrorism Crime Financing
Laws and regulations relating to the crime of financing terrorism and the application of the principle of recognizing service users, namely:
(1) UU no. 9 of 2013;
(2) UU no. 30 of 2004 in conjunction with UU no. 2 of 2014;
(3) PP No. 13 of 2018;
(4) Regulation of Minister of Law & Human Rights No. 9 of 2019;
(5) Head of PPATK Regulation No. 11 of 2016;
(6) Circular of the Director General of AHU No. AHU.UM.01.01-1232 dated 16 September 2019 concerning Guidelines for the Implementation of PMPJ for Notaries;
(7) Circular of the Director General of AHU No. AHU.UM.01.01-1239 dated 16 September 2019 concerning Guidelines for Monitoring Compliance with PMPJ Implementation and Reporting to PPATK for Notaries.
Such is the seriousness with which the handling of the criminal act of terrorism financing involves the roles of various parties including banking institutions and notaries. In this discussion the main focus is on the application of PMPJ which is carried out by a notary in relation to the duties and obligations of a notary in issuing deeds, especially those related to money.
In the protocol for implementing the duties of a notary, in addition to carrying out the provisions in the law regarding the position of a notary, in the framework of PMPJ the notary is given an additional task, namely implementing PMPJ. In making a deed, a notary must really pay attention to and pay close attention to the provisions in UU no. 9 of 2013, in Article 11 states that efforts to prevent acts of terrorism financing crimes are carried out through:
a. implementation of Financial PMPJ;
b. FSP compliance reporting & monitoring;
c. supervising money transfer activities by means of transfers or remittances through other systems; and
d. supervision of cash and/or other payment instruments into or outside the Indonesian customs area.
The Indonesian Ministry of Law and Human Rights in supervising notaries as public officials with existing regulations formed a team to supervise notaries in regions throughout the territory of the Republic of Indonesia. In discussing this research, if you take the example of a deed
made by a notary in the North Sumatra area, especially taking samples in Batubara Regency, Asahan Regency, and Tanjung Balai City in 2022, it is still found that some notaries have not implemented the PMPJ.
In the supervision of a notary, apart from supervising the protocol in making the deed in accordance with a predetermined format, supervision is carried out to check whether there are still notaries who issue deeds, for example buying and selling land with a value of over two hundred and fifty million without knowing the client's profile or even without know the origin of the money used in the transaction. However, from the results of supervision of the notary protocol, it is true that some notaries have complied with PMPJ, as seen from the notary's unwillingness to issue a deed of sale and purchase of land because the client was unwilling to inform about the origin of the money used. It was even encountered that a notary asked his client to make a statement that the money used was lawful money that did not originate from either civil or criminal crime, and if the client was willing to make the statement, then the notary was willing to issue the deed.
On the other hand, the application of PMPJ to prevent financing of terrorism crimes, namely by entering money from certain parties originating from abroad, it is banking institutions that are the spearhead to anticipate this when it is known that money is coming in from sources originating from outside the country. Indonesia. So in synergy the banking sector, the police apparatus as well as the prosecutor's office and notaries jointly implement PMPJ in an effort to prevent corruption crimes, money laundering crimes and terrorism financing
4. Conclusion
Based on the descriptions in the research discussion above relating to PMPJ in an effort to prevent corruption crimes, money laundering crimes, and terrorism financing crimes, the following conclusions can be drawn:
(1) In line with the rolling history of the Indonesian constitutional system, from the old order to the new order until now, in the reform era, crimes by exploiting or abusing authority have been committed to enrich oneself or a group of people, which actions have harmed the state or people of Indonesia, so to preventing the encroachment of state finances for self-enrichment as an act of corruption needs to be prevented and prevented through the role of Bank Indonesia, banking institutions, and also by notaries.
(2) Actions to disguise the origin of money that can be the proceeds of crime whether it be corruption, arms trafficking, prostitution or also the proceeds of selling drugs which acts are known as money laundering crimes by the state through laws that also regulate how to implement PMPJ in preventing and eradicate it.
(3) The crime of funding terrorist activities that can divide the nation becomes an important part of the implementation of PMPJ. To prevent the entry of money originating from abroad that is intended to finance terrorism crimes, PMPJ is implemented through the implementation of the functions of banking institutions, the state police, the prosecutor's office, and also a notary as a public official.
References
General Principles of Good Governance and Their Explanations "https://www.
Hukumonline.com/klinik/a/17-asas-asas-umum-Government-yang-good-dan- explanation-lt62d8f9bedcda1".
Bank Indonesia, 2021, Indonesia's Risk Assessment of Crimes Financing Terrorism and Funding for the Proliferation of Weapons of Mass Destruction in 2021.
Bank Indonesia, 2021, Sectoral Risk Assessment of Payment Service Providers Non-Bank Institutions and Non-Bank Foreign Exchange Business Activities.
Bank Indonesia, 2021, Indonesia's Risk Assessment of Crimes Financing Terrorism and Funding for the Proliferation of Weapons of Mass Destruction in 2021.
Bank Indonesia, 2021, Indonesia's Risk Assessment of Money Laundering Crimes in 2021.
Anti-Corruption Education Book for Higher Education, “https://aclc.kpk.go.id/materi- pembelahan/education/books/books-education-anti-corruption-for-perguruan- tinggi”.
Ministry of Research, Technology and Higher Education of the Republic of Indonesia, 2018, Anti-Corruption Education for Higher Education (Revised Edition).
Explanation of the Crime of Money Laundering and Its Origins,
“https://nasional.tempo.co/read/ 1571851/penhasilan-tindak-pidana-pencutuan- uang-dan-asal-ususnya”.
Ridwan HR, 2011, State Administrative Law (Revised Edition), Jakarta: PT RajaGrafindo Persada.
Stipulation of the People's Consultative Assembly of the Republic of Indonesia Number XI/MPR/1998 concerning the Organization of a State that is Clean and Free of Corruption, Collusion and Nepotism;
Government Regulation in Lieu of UU Number 24 of 1960 concerning Investigation, Prosecution and Examination of Corruption Crimes;
UU of the Republic of Indonesia Number 31 of 1999 concerning Eradication of Corruption Crimes;
UU of the Republic of Indonesia Number 30 of 2002 concerning the Corruption Eradication Commission;
UU of the Republic of Indonesia Number 30 of 2004 in conjunction with UU of the Republic of Indonesia Number 2 of 2014 concerning the Office of a Notary;
UU of the Republic of Indonesia Number 8 of 2010 concerning Prevention and Eradication of Money Laundering Crimes;
UU of the Republic of Indonesia Number 9 of 2013 concerning Prevention and Eradication of Terrorism Financing Crimes;
UU of the Republic of Indonesia Number 19 of 2019 concerning the Second Amendment to UU of the Republic of Indonesia Number 30 of 2002 concerning the Corruption Eradication Commission.
Government Regulation of the Republic of Indonesia Number 43 of 2015 concerning Reporting Parties in the Prevention and Eradication of Money Laundering Crimes;
Regulation of the Minister of Law and Human Rights of the Republic of Indonesia Number 9 of 2017 concerning Application of the Principle of Recognizing Service Users for Notaries;
Regulation of the Center for Reporting and Analysis of Financial Transactions Number 7 of 2017 concerning Application of the Principle of Recognizing Service Users for Providers of Other Goods and/or Services;
Bank Indonesia Regulation Number 19/10/PBI/2017 concerning Implementation of Anti- Money Laundering and Prevention of the Financing of Terrorism for Non-Bank Payment System Operators and Non-Bank Foreign Exchange Business Activity Operators;
Regulation of the Minister of Law and Human Rights of the Republic of Indonesia Number 9 of 2017 concerning Application of the Principle of Recognizing Service Users for Notaries.
Presidential Regulation of the Republic of Indonesia Number 13 of 2018 concerning Application of the Principle of Recognizing Beneficial Owners of Corporations in the Context of Prevention and Eradication of Money Laundering Crimes and Terrorism Financing Crimes;
Regulation of the Minister of Law and Human Rights Number 9 of 2019 concerning Application of the Principle of Recognizing Service Users for Notaries;
PPATK Head Regulation Number 11 of 2016 concerning Procedures for Submission of Suspicious Financial Transaction Reports for Professions;
Circular of the Director General of General Legal Administration No. AHU.UM.01.01-1232 dated 16 September 2019 concerning Guidelines for the Application of the Principle of Recognizing Service Users (PMPJ) for Notaries;
Circular of the Director General of General Legal Administration No. AHU.UM.01.01-1239 dated 16 September 2019 concerning Guidelines for Compliance Supervision of the Application of the Principle of Recognizing Service Users (PMPJ) and Reporting to the Financial Transaction Reports and Analysis Center (PPATK) for Notaries.
