RAHASIA BANK

(BANK SECRECY)

By :
Jonker Sihombing
1. Bank is considered as :
- financial institution
- financial intermediary
- risky institution, and
- a trust institution.
As a trust institution, bank should keep
strictly confidential all necessary data and
information about its customers.
2. Financial system stability has a close
relationship with bank secrecy regulations.
The absence of sufficient bank secrecy
regulation will put the bank in an unstable
position.
In short, a customer puts its money into a
bank, because he trust about the
confidentiality rules adopted by the bank.
3. Besides the :
- size
- reputation, and
- prudent banking practice adopted by
the bank,
customers maintain relationship with the
bank, because they understand that bank
would keep their data and information as a
confidential matter.
4. KUWAIT is an example of a success story of
adopting bank secrecy. By applying strictly
bank secrecy, billions of USD funds coming from
all parts of the world into KUWAIT.
For INDONESIA, bank secrecy regulation is
considered important. Banking industry in
Indonesia is fragile after hampered by crisis in
1998/1998. In order to restore the above
damaged, adopting bank secrecy is important.
5. Bank secrecy is important for 4 reasons :
a. To convince the customers when giving their
confidential data and information into the
bank.
b. For the sake of the bank itself who needs
trust from customers.
c. Regulation of bank secrecy is based on the
philosophy that the government has the
power, …..
 ---, and on the other hand, people
should obey rules issued by the
government.
d. Regulation about bank secrecy is also
needed by a country in order to avoid
unnecessary confiscations. This reason is
important especially in a country where
regulations could change over time.
6. Two doctrines of bank secrecy, they are :
a. absolute secrecy, where
confidentiality of customers data and
information should be kept by the bank
without any exception, and
b. relative secrecy, where there are several
reasons given by the law to pierce the
confidentiality above.
7. a. Bank secrecy is a global perspective today.
b. There is no country who keep the
above secrecy absolutely. The existence of
tax haven countries does not mean that
they keep confidentiality of customers 100
%.
c. Basically, tax haven country is used for the
purpose of reducing tax burden, not for
smuggling data and information.
8. Bank secrecy in Indonesia :
a. Article 1 point 16 of Act No. 7 of 1992
stated that bank secrecy is everything
related to information and data about
customers, which according to the normal
banking practice should be kept
confidential.
With the above sense, all data and
information of debtors and creditors of
bank are the objects of bank secrecy.
In short, there is no difference treatment
between debtors and creditors of the bank,
viewed from bank secrecy.
Note : SECRECY covers :
a. customers information in general
b. customers financial data.
b. Act No. 10 of 1998 which amended Act No.
7 of 1992, in Article 1 point 28 stated bank
secrecy as “everything related to data and
information about depositors and their
deposits”.
With the above new definition, bank secrecy
in Indonesia has changed, not covered all
customers of bank, but only for “depositors”.
 c. Bank secrecy in Indonesia is not an
absolute doctrine, but a relative one.
It means that there are several ways to
pierce the bank secrecy given by the law.

9. Regulations which allow to pierce the bank

secrecy, according to Act No. 10 of 1998 :
a. Article 41 of Act No 10 of 1998 :
(1). For the sake of taxation, chairman of BI
(now OJK) at the request of MoF is
authorized to issue a written order to the
bank in order to provide information, and
show written evidence and any papers,
concerning financial situation of a certain
depositors, to the tax officer.
(2) According to Art 2 of Act No 9 of 2017
jo Perppu No 1 Thn 2017, Bank should
be active to report to DJP related to
with tax due by the customers.
(3) This is also in relation with Indonesia
has participated in AEoI with hundred
countries over the world.
b. Article 41A of Act No. 10 of 1998 :
(1). For the completion of bank accounts
that have been submitted to Bureau of
States Receivables Collection (BUPLN),
chairman of BI (now OJK) gives
permission to the official of BUPLN to
obtain information about deposits of
debtors of bank.
(2). Permit referred to in paragraph (1) shall
be provided in writing at the written
request of the head of BUPLN.
(3). Request referred in paragraph (2) must
mention the name and position of
official of BUPLN, the relevant name of
debtor, and the reason for wanting
information.
c. Article 42 of Act No. 10 of 1998 :
(1). For the sake of justice in criminal case,
chairman of BI (now OJK) can grant
permission to the police, prosecutors or
judges, to obtain information from
banks on deposits of the suspects
or defendants at the bank.
(2). Permit referred to in Paragraph (1) shall
be provided in writing at the written
request of Kapolri, Attorney General,
and the Chief Justice (Ketua MA).
(3). Requests referred to in paragraph (2)
must state the name and position of the
police, prosecutors and judges, the name of
suspect/defendant, why they need info,
and relationship of criminal case and
the necessary information.
d. Article 43 of Act No. 10 of 1998 :
In a civil case between the bank and its
customers, directors of the bank may
inform the court about financial situation of
the customer, and provide other
information relevant to the case.

(According to the explanation part of Art. 43,

the above info could be given by directors of bank
without permission from Minister of Finance).
e. Article 44 of Act No. 10 of 1998 :
(1). In the exchange of information between
banks, directors of the bank may notify
other banks about financial condition of
its customers.
(2). The above provision shall be made in
details by BI.
f. Article 44A of Act No. 10 of 1998 :
(1). Upon request, concern, or proxy from
depositors made in writing, bank is
obliged to give info about deposits of
depositors in the bank, to the party
designated by depositors.
(2). In the case of depositors have died,
the legal heirs of depositors is entitled to
obtain info about depositor’s deposits.
g. Article 45 of Act No. 10 of 1998 :
Those who feel aggrieved by the statements
given by the bank as referred to Art 41; Art
42; Art 43; and Art 44; has the right to know

the content of such information, and

request correction if there are errors in
information.
10. Act No. 25 of 2003 concerning Central
Reporting & Analyzing Financial Transaction
(PPATK) gives exemption to the bank secrecy :
a. Article 14 :
Obligation of a bank to report depositor’s
transaction to PPATK is exempted from
bank secrecy regulation.
b. Article 27 point 3 of the said Act stated
that : in fulfilling its function, for PPATK is
not imposed regulation about bank
secrecy.
c. Article 33 point 2 stated that :
In collecting info, for investigators, and
prosecutors, and judges; regulation about
bank secrecy is not applicable.
11. Act No. 8 of 2010 concerning Anti Money
Laundering Act (UU TPPU) stated in :
a. Article 28 said that obligation to
report suspicious transaction for
institution is exempted from secrecy rules.
b. Article 41 point 2 stated that submission of
data and info by government bodies to
PPATK is exempted from secrecy rules.
c. Article 45 stated that :
In exercising authorities, PPATK is exempted from
regulations and ethics concerning secrecy.
d. Article 72 point 1 stated that :
For the sake of examination in connection with
criminal case of TPPU; investigators, prosecutors,
and judges; are authorized to ask institutions to
submit written information about assets of
defendants.
12. Based on Article 6 of Act No. 3 of 2011 regarding
Fund Transfer ( UU Transfer Dana), it is said that :
“ Utk keperluan konfirmasi dalam transaksi
transfer dana yang dilakukan secara elektronik,
pemberitahuan nomor rekening dan/ atau
nama penerima, dapat dikecualikan dari
ketentuan rahasia bank”.
13. Bank secrecy for former (ex) depositors :
a. Article 44A Act No. 10 of 1998 stated that :
In the case of depositors have died, the
legal heirs of depositors is entitled to
obtain info about depositor’s deposits.
b. Article 322 point (1) of KUHP stated that :
For whoever intentionally discard secrecy
which he/she has to keep confidentially
because of job or position, for the current or..
….previous position, will be sentenced by :
- maximum 9 months in jail, or
- penalty up to Rp. 9 million.
14. Based upon the latest stated article (Art.
322 KUHP), keeping confidentially data
and information of customers is a must for
the bank.
But, there is no time limit of keeping
confidentiality, whether 5 years or 10
years, etc.
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