INDONESIA Law and Practice Contributed by: Lia Alizia, Jonathan Andreas Sitorus and El Yefta Akwila, Alizia & Partners Law Office
police officers, for carrying out investigations. These powers encompass various actions such as seizure, search, arrest, detention and other activities deemed as coercive measures. Since the HR internal investigation is not explicitly mandated in the prevailing laws, the internal investi - gator is not legally permitted to perform the coercive measures during any such investigation. 1.7 Other Cases When not explicitly required or prohibited, employ - ers typically decide on whether to conduct an inter - nal HR investigation by considering the credibility and seriousness of the claims, potential repercussions for the workplace, legal risks involved and adherence to company policy, as well as by weighing the advan - tages of upholding trust against the costs associated with investigating. It is also considered best practice to document the reasoning behind either proceeding with or foregoing an investigation. 2. Initial Steps 2.1 Communication to the Reporter and the Respondent Under Indonesian regulations, there is no statutory right for either the reporter or the respondent to be formally informed that an HR internal investigation will be opened. However, employers are expected to fol - low principles of fairness and due process, which in practice means that the respondent should be given an opportunity to provide clarification before disci - plinary action is taken. Employers may inform both parties, but this is not legally mandated. Subject to the employer’s internal policy, the internal investigator may be required to document each stage of the investigation in a formal report and provide the reporter with periodic updates on the progress of the inquiry, or simply a summary of the progress. 2.2 Communication to Authorities Theoretically, based on the newly regulated Indone - sian Criminal Code ( Kitab Undang-Undang Hukum Pidana KUHP) and KUHAP, there is an obligation (in this case, it could lie with the HR internal investigator)
to make a report to the appropriate authority of an incident that is allegedly classified as a criminal act under certain circumstances, as further explained in the following. Practically speaking, it is the firm’s view that this provision is not effective, as the opening of an HR internal investigation is yet to conclude with the reported act nor collected relevant evidence(s). This provision, however, is not applicable if the internal investigation has been concluded as explained in 6.6 Communication to Authorities . If a reported act is alleged to be an extraordinary offence, such as conspiracy to threaten state secu - rity, terrorism, illegal drug use or any offence against public order, the firm considers it necessary for the HR internal investigator to report such acts to the appro - priate authority. This is essential for the company to avoid legal liability, specifically negligence, should the reported act impact public security. The legal basis of the foregoing is Article 23 (1) of KUHAP, which states that any person who is aware of a criminal conspiracy to commit a criminal offence shall be obliged to immediately report such matter to the competent investigator or investigating authority. Furthermore, a mandatory obligation to report could arise in specific situations where Indonesian law or sector-specific regulations expressly require certain categories of institutions or individuals to notify the authorities of particular types of offences or incidents. In general, a criminal report must be made to the Indo - nesian National Police with jurisdiction over the loca - tion of the offence. Where the alleged conduct con - stitutes a special criminal offence outside KUHP, the competent authority shall be determined in accord - ance with the relevant sector-specific legislation, which, amongst other things: • requires entities in the financial sector to file a report of any suspicious financial transactions before the Indonesian Financial Intelligence Unit ( Pusat Pelaporan dan Analisis Transaksi Keuangan , or PPATK); and • obliges regulated entities in sectors such as bank - ing, insurance and capital markets to report any breaches, incidents or misconduct to their supervi - sory authority.
223 CHAMBERS.COM
Powered by FlippingBook