This paper is a combination of two papers that had the Bisnis Indonesia daily published February 26, 2004 edition under the title The News Letter and the special edition of the National Law Commission in early 2003 with the title of Release and Discharge In Perspective of Law in Indonesia. The author intentionally combine these two papers for discussion as a whole more easily understood by the reader.
By: Sulistiono Kertawacana
Advocate in Jakarta
Bank Restructuring Agency (IBRA) on February 17 and has submitted the Statement Lunas (SKL) to Sudwikatmono (Bank Surya) and the Nin King (Bank Danahutama).
Giving SKL is a follow-up solution for the debtor (shareholders) who have signed the Settlement of Shareholders (PKPS) and has fulfilled its obligations. Two other names that will receive the SKL is Ibrahim Risjad and Hendra Liem (hukumonline.com February 17.).
SKL is a letter issued by IBRA upon repayment of all debt obligations of the debtor PKPS. With SKL, the debtor does not get a lawsuit, though never committing a crime, such as violation of legal lending limit (LLL).
That is, of SKL is identical to the granting of release and discharge (R & D) is widely condemned in various circles. Furthermore, full description is called R & D in this paper.
Giving R & D initiated the agreement in the form of government through IBRA PKPS with the debtor as shareholder banks that have received Bank Indonesia Liquidity Support (BLBI) in three kinds.
The agreement is the Master of Settlement and Acquisition Agreement (MSAA), Master of Refinancing and Note Issuance Agreement (MRNIA), and Deed of Recognition Bonds
No.X/2001 MPR decree assigns the president consistently implement MSAA and MRNIA. For those not fulfilling their obligations, will take firm action (in accordance with Law No.25 / 2000 on Propenas CHAPTER IV item C No. 2.3, and 4.)
Meet Obligations On The obligor IBRA
Obligor Bank Obligations
Nirwan Bakrie Bank Nusa Nasional Rp3, 359 trillion
Husodo Angkosubroto Bank International Sewu Rp209, 2 billion
Iwan Suhardiman Bank Tamara Rp35, 6 billion
The Tse Min Bank Hastin Rp139, 8 billion
The Ning Kong Bank the international Baja Rp45, 1 billion
Obligor What Not to Meet Obligations On IBRA
Marimutu Sinivasan Bank Putera Multikarsa Rp1, 13 trillion
Adisaputra Januardy & James Januardy Bank Namura Internusa Rp123, 0 billion
Lidya Mochtar Bank Tamara Rp202, 8 billion
Omar Putihrai Tamara Bank 190, 2 billion
Ocean of Diamonds Exchange Bank eminent Rp615, 4 billion
Atang Latif Bank Indonesia Raya Rp325, 4 billion
Hashim Djojohadikusumo Bank Pelita and Rp119 billion Istimarat
Pending completion of obligors The Debt Restructuring Group Tirtamas
Ex Bank Shareholder Liability
Prosperity Bank Board Hashim Djojohadikusumo Rp216, 98 billion
Al Njoo Rp108, 5 billion
Honggo Wendratno Rp108, 5 billion
Note: Data as at 14 february 2004 Business / Budi Initiative
PKPS R & D includes clauses that establish the government will provide removal and exemption from civil and criminal charges to the debtor who has paid its obligations.
For that, the president issued Presidential Instruction No. 8 of 2002 on the Provision of Legal Certainty Guarantee To Debtor Has Completed Its obligation Or Legal Action To Debtor By Non Finalizing Settlement obligation Shareholders (Presidential Instruction No.8/2002).
The impression arises, it is the policy of Presidential Instruction No.8/2002 in interpreting the mandate of the president of MPR.
Presidential Instruction No.8/2002 give such instructions to the Chairman. At least two important clauses in the Presidential Instruction No.8/2002 which raises questions.
First, to borrowers who have completed PKPS, will be given proof of completion of discharge and exemption from civil and criminal charges.
According to the authors, this provision is not known to Indonesian law. In fact, in theory, legal science is hard to find reasons for justification. The government made a deal with the subject of civil law to undertake (guarantee) to provide release and exemption from criminal prosecution (which may have indicated to engage in corrupt activities penyelahgunaan BLBI funds).
Is not every citizen is guaranteed by the constitution to get legal protection if they are not committing crimes as specified in section 28D of the 1945 Constitution Second Amendment that everyone is entitled to recognition, guarantees, protection and legal certainty of fair and equal treatment before the law.
For comparison, we taxpayers do not need a treaty with the government to spend R & D, if we have mebayar taxes correctly. It also PKPS which is related to the distribution BLBI can not eliminate the errors associated with the crime of violation of the LLL.
Second, if against the debtor is still under investigation, investigation and / or prosecution by law enforcement agencies, as well as performed with the cessation of the handling aspects of the criminal, whose implementation is still being done in accordance with the provisions of the legislation in force.
Substantially, the president has given a kind of abolition, in addition ordered the Chief of Police and the Attorney General to issue a warrant Penghentinan Investigation, Investigation, and / or prosecutions (SP3) to the shareholders of the bank. Presidential Materials not in accordance with the competencies of the president as provided for in giving abolition of the Constitution of 1945 (Constitution 45).
Indeed, there is no relevance between the payment obligation to the debts which become obligations of the debtor as a stockholder of the bank under surveillance with guarantees liberation in criminal cases (in banking).
The obligation to pay the debts of the debtor is a logical consequence for the debtor who has received BLBI from the government. Therefore, it is not proper settlement of obligations arising from PKPS, freeing the debtor from criminal threats (including violations of LLL).
Criminals can avoid the (threat of) a criminal, if there are reasons which exclude them (strafuitsluitingsgronden), namely (i) the reasons for forgiving, (ii) justification, and / or (iii) decriminalization.
What is meant forgiving reason is that if the actions of the debtor still categorized crime, but there are reasons that eliminates errors (schulduitsluitingsgronden)
Consequently, the offender will be released from criminal charges and threat (see article 48 s / d 49 of the Criminal Code). For example, someone who kills a thief and self-defense to save his life.
Justification, if any legal action under the Act is still categorized as a crime, committed in the name / command of law (rechtvaardingsgronden). Therefore, the perpetrator is justified to do it and not convicted (see article 50 of the Criminal Code). For example, a police officer who executes death row inmates.
While decriminalization is that if an act which was originally categorized a crime, then amended by the Act into action is not punishable.
For example, at the time of the action is still in the category of criminal acts, but later changed to not include criminal acts. Article 1 paragraph 2 of the Penal Code, if after the deed is done there is a change of legislation, the lightest use rule for the defendant.
Unfortunately, from the three categories above, the provision of R & D can not be justified based on one of those reasons.
There is no reason at all forgiving for debtors. Because, they are one cause of Indonesia's banking bobroknya. If granted, it should be decided by the judge in the court examination.
In addition, there is no justification, if R & D carried out by order of law. In fact, the MPR has also commissioned the president to act firmly against the perpetrators of deviation BLBI.
Later in the field of Justice and Human Rights, the president assigns to (i) thoroughly investigate all criminal acts of corruption in the financial sector and banking including BLBI (sub-field of Combating corruption) and (ii) continue and complete the law enforcement completely (among-pen ), banking and finance (sub field of Rule of Law).
Under consideration are also clearly not possible decriminalization. Therefore, the article which provides criminal threat must be removed.
While article 49 paragraph 2, Article 50 and Article 50A of Law No.10/1998 concerning Amendment to Law No.7/1992 on Banking (Banking Act) that threatens imprisonment for violators LLL, it is still valid. Presidential Instruction No.2/2002 mendekriminalisasikan not valid for the Banking Law.
Is giving R & D that refers to the authority of IBRA? Under section 37A, the Banking Law gives great authority to IBRA IBRA. Among these powers are: (i) take over and run all the rights and powers of shareholders (including the AGM), directors, and commissioners BDP, (ii) review, cancel, terminate the contract of adverse BDP, (iii) transfer of wealth management to the management of BDP other party, and (iv) collect the receivables BDP with Forced Letter.
However, the great authority given, none in it the authority to issue R & D.
Thus, the Presidential Directive to the Chairman of IBRA to publish R & D is not correct. Therefore, the IBRA is not an institution that has the authority to issue R & D.
Indonesian criminal justice system knows the system 'forgiveness' criminal by the police, prosecutors, or the president in accordance with the level of ongoing legal process. But do not know 'forgiveness' model of criminal Instruction No.8/2002.
Police officers, prosecutors and even the president was not authorized to give any sort of guardianship (with instructions to the head of IBRA) through an agreement that is civil. There is a place and its own procedures and in his capacity as public officials to provide 'forgiveness'.
Police officers and prosecutors can do a 'remission' as the set in Act No.8 of 1981 on Criminal Proceedings (Criminal Code). While the President may grant clemency and rehabilitation with consideration meperhatikan Supreme Court (article 14 paragraph 1 of the Constitution the First Amendment 45). The President also may grant amnesty and abolition by taking into consideration the House of Representatives (Article 14 paragraph 2 of the Constitution the First Amendment 45).
Police officers as investigators and prosecutorial officials as public prosecutor, the authority to stop the investigation on the condition that there is insufficient evidence or the event was not a criminal act (Article 7 (1) letter (i) in conjunction with Article 109 (2) and article 140 (2 ) point (a) Criminal Code).
In fact, the Criminal Procedure Code gives broader authority to the public prosecutor is to close the case for legal reasons (Article 140 (2) point (a) Criminal Code). In addition, article 32 of Law No. 5 year 1991 on the Attorney General (AGO Act) provides that the Attorney General the authority to exclude the case in the public interest.
Public interest is the interest of nation and state and / or interests of the wider community. The authority of the Attorney General to exclude these cases is an opportunity principle, only be made after considering suggestions and opinions of the state power agencies that have a relationship with the problem. In accordance with the nature and weight of cases that are set aside,
Attorney General to report the first case penyampingan plan to the President for instructions. However, in R & D, it was the initiative came from the President, as evidenced by the issuance of Presidential Instruction No.8/2002 which instructed (among them-pen) to the Attorney General.
This gave the impression the president has made the initiative in the form of intervention against law enforcement. Maybe this will commonly done when the case is politically charged, not charged for corruption. In fact, Law No.31 of 1999 as amended by Law No.20 of 2001 on Eradication of Corruption has the threat of capital punishment against perpetrators of corruption made in certain circumstances, which (among others) when the country in a state of economic and monetary crisis sedag as experienced by Indonesia at this time, the death penalty may be imposed (article 2, paragraph 2).
Examples of classic cases that may be appropriate for penyampingan case is a physician who served in remote areas of giving the drug to the patient, thus suffering from the disease worse. Because in those areas no longer a doctor on duty, while the area was there an outbreak of a disease, then the public prosecutor with the authority to stop the investigation to the larger interests of many patients who need help the doctor.
The President may grant clemency and rehabilitation with consideration meperhatikan Supreme Court (article 14 (1) First Amendment Constitution 45). According to Law No.22 / 2002 on clemency, pardon is the forgiveness in the form of change, mitigation, reduction, or elimination of the implementation of criminal law that has been fixed to convict a magnitude given by the president. Based on this, obviously not including the Presidential Instruction No.8/2002 category of granting clemency, because the debtor has not been found guilty of permanent legal force.
The President also may grant amnesty and abolition by taking into consideration the House of Representatives - House (Article 14 (2) First Amendment Constitution 45). However, during the time the president gave amnesty and abolition to the cases of politically charged and not charged offense Banking. Especially for the case which indicate corruption.
By granting amnesty, all the legal consequences (criminal) prisoners abolished. Whereas abolition would exclude (stop) the prosecution.
Then, the debtor whose case in the proceedings, including in the category of obtaining pardon? Of course not.
The reason is, first, abolition was given to cases of political nuance. Not for criminal cases indicated corruption banking and financial abuse of the state, especially BLBI (see Emergency Law No.11 / DRT/1954 jo Law No.1/1961). Even Article 2 of the Act clearly states No.11/Drt/1954 granted amnesty and abolition to all persons who committed the crime (before December 27, 1949) due to political disputes between Indonesia and the Kingdom of the Netherlands.
Second, the abolition is usually given in the form of direct presidential decree and included the names who deserve it. Not a Presidential Directive and did not mention names.
It should be investigated
Presidential Instruction No.8/2002 ordered the execution of R & D that has implications for providing the release and liberation from the aspect of criminal charges, is unknown in Indonesian law. Indonesian law allows the termination of the investigation, investigation, and / or prosecution as set Penal Code.
Even the 1945 Constitution and its amendment gives the President authority to abolish the criminal execution of a court ruling remains in force. But of all that, the implementation of Presidential Instruction No.8/2002 which menginstrukiskan R & D is not known and have a place in Indonesian law.
The material, actually Instruction No.8/2002 cancellation may be requested through the mechanism of judicial review as provided for Article 24A Third Constitution Amendment 45. The government has an action similar to the 'ultra vires' ie to act beyond the authority given by the Act.
In the Indonesian legal perspective, R & D is no legal force, because contrary to Indonesian laws and regulations. Indeed, IBRA could change the clause R & D are listed in PKPS to meet the elements of procedural changes to the agreement. In the agreement there is usually a core Severability provisions if there are any clauses or articles that are contrary to applicable law (the law PKPS Indonesia), then the clause or section does not apply to the agreement, while the other clauses and articles that may apply. Thus, when the SKL IBRA reportedly contains material R & D simply contains a full description alone without even an implicit statement of explicit R & D from IBRA on behalf of the government. Not mean the government has done in default (deny the agreement) on PKPS. The reason that the clause R & D are included so that shareholders of banks willing to perform the obligation is less precise.
Because, based on scientific spectacles that the threat of criminal law as it applied ultimum remidium, as a last resort so that law-abiding citizen. Not with the reverse logic, criminal charges are eliminated so that the bank's shareholders want to obey the law.
On the other hand, R & D illustrates not berwibawanya government in front of the conglomerates, so that should humble ourselves so that bank shareholders would perform its obligations. In fact proper, legitimate government with all authority, if willing and sincere, can force bank shareholders to comply with the law.
The government should not break through a mechanism that has been available in the applicable law, if you want to build a strong legal system and dignified. In a modern constitutional state, government action must be based on the mechanisms and legal procedures have been specified.
Unlike the state system in a traditional kingdom, the king has the right to forgive anyone with mechanisms and procedures that are considered worthy and deserving of forgiveness by the subjectivity of the king.
It is hung on the degree of sense of justice and wisdom of the king. Both poor law enforcement tergatung on the nature of individual kings, not the system and standard mechanism built.
We certainly want a strong legal system and tightly arranged so that once the possibility of small deviations. We also hope that this country has a legal officer with integrity and have a certain character a noble good came from his own personal reasons or because the system does not provide opportunities to act negatively.
With these explanations, from various angles of R & D is difficult to find legal reasons. Therefore, the move was in addition to conflict with MPR, IBRA is also not authorized by law to provide it, and is unknown in Indonesian positive law.
Therefore, IBRA did not need to add stain dark world of law in Indonesia. The President as the agency that issued the Presidential Instruction and Head of IBRA as one of the recipients instruction, good enough to get a "warning" from the Corruption Eradication Commission (KPK) (read Awaits Presidential Commission to investigate R & D, Business February 4, 2004).
Because it is not possible "bargain" before, during, and / or after a given R & D. Because, from being law, R & D is not unfounded. However, it seems the government really excited "enforce". Impression, R & D provided for legal security.
Commission should empower the Money Laundering Act to facilitate investigate.
Please check the transactions that are not fair between the debtors and parties associated with it (direct and indirect) with (i) President and Chairman of IBRA, (ii) the president's family and the Chairman of IBRA's president, (iii) the party president, (iv) and / or people close to the president / party president and Chairman.
How many "donations" from its debtors and parties associated with the debtor to the party president? For the Commission, survived to fight!