Is there evidence of evil intentions?


President Susilo Bambang Yudhoyono said on his speech following the House of Representatives recommendations over the century bank bailout that the bailout policy was the right choice and justifiable. The president said that the decision was taken at the height of the global financial crisis in late 2008 when a quick response had been needed and therefore they should not be subject to criminal charges.

Even the president himself backed his two top aides in a televised speech to the nation by saying Boediono and Sri Mulyani deserved thanks for “outstanding service” in averting a banking crisis. “Indonesia was lucky to have had Sri Mulyani and Boediono in charge when the global financial crisis hit, as both have “spotless track records in terms of competence, credibility, and personal integrity.” He said.

It would be interesting to highlight the president’s statement.

The message from the president is clear: Is it fair that decision makers be subjected to ridicule, shame and even criminal charges when they had the country’s best interest at heart ? The House’s answers might yet result in government’s ability to deliver much-needed policies in the longer term.

Nevertheless, the House of Representatives has chosen to ridicule the Bank Century bailout policy as it had covered up irregularities, violations of banking regulations and criminal laws such as corruption.

Therefore, the decision according to House inquiries committee reccomendations, the bailout decision could be the subject of criminal charges.

Based on doctrine from common law, the ingredient that must be present for there to be  the criminal charges is the“Mens rea” which is translated from the Latin means “guilty mind”. The use of ”Mens Rea” shows that prerequisite the subject of criminal charges related to state of mind.

The concept of mens rea developed in England during the latter part of the common-law era (about the year 1600) when judges began to hold that an act alone could not create criminal liability unless it was accompanied by a guilty state of mind which can be translated as  “evil intention”. Actus non facit reum nisi mens sit rea which means “the act does not make a person guilty unless the mind be also guilty.

Mens rea or the “evil intention” is the mental element that produces criminal liability when combined with “Actus Reus” or can be translated as “guilty act” as a physical element. The word “evil intention” tells what kind of mental state an accused must have to fulfill the prerequisite of the criminal charges.

A fundamental principle of criminal charges is that a crime consists of both a mental and a physical element. Sometimes a law creates criminal liabilities for the commission or omission of a particular act without designating a mens rea. These are called strict liability.

Possibilities that decision to be criminalized still exist. It does not mean that the decision can not be the subject of criminal charges. Prof Hikmahanto Juwana, law professor from University Of Indonesia, once said should the decisions be deemed as a criminal act, the enactment of those decisions must comprised of mens rea or evil intentions behind those decisions.

Once the evil intention on the accusation can not be fulfilled, it could be the reason for exemption from the criminal charges liabilities (schuldduitsluitingsgrond). We generally do not punish people for criminal act if they do something that they could not control.

Our Anti Corruption law is defined by statutes that contain a word and phrase indicating the mens rea requirement that require that a person act knowingly, purposely, or recklessly.

Therefore, the subject of corruption charges requires a mens rea or “evil intention”.

Given that ideas, once again, it would be interesting to ask about Boediono, Sri Mulyani  and officials from KSSK, BI, LPS for their mens rea or “evil intention” behind their decision to rescue troubled Bank Century and its subsequent management of bailout funds, which folded to more than $700 million.

There are deep differences between wrongdoing and delictual action (criminal action).  When the “evil intention” behind the enactment of decision is not fulfilled, it would be merely administrative wrongdoing.

The administratively wrongdoing can not be the subject of criminal charges. If there are administrative mistakes and deviations of the bailout policy, it is the domain of state administration law, and the sanction is merely administrative.

The debate about criminalization of decision has mirrored a deep divide in our nation following the bailout scandal. Is there any so-called “evil intention” behind the disbursement which folds ten times from the original estimate? Are there any criminal acts involved behind the enactment of decision?

President said the decision over century case should not be subject to criminal charges. On the contrary, the decision taken by the House’s plenary where it chose Option C stated that there were criminal violations in the extension of the Bank Century bailout amounting to $700 million.

However, according to our distribution  of power governance system, it is not the president and parliament business to judge over bailout decision.  The House’s right to investigate (hak angket) is not the “trial” for deciding the “evil intention” behind the enactment of decision.

The “idea” of the house’s special committee is to prove the “evil intention” behind the bailout decision. . Those “evil intention” are allegations that there were flows of funds from the bailout disbursement to a certain political party for election campaign.

Moreover, some lawmakers were confidently believe about the “evil intention” occurrence behind the bailout policy. Starting from the recording of a conservation between Sri Mulyani and the disgraced century bank former owner, Robert Tantular at the meeting to  the allegation that there were flow of funds to certain politician.

Those allegations were never proved so it turns to “a political idol contest” sessions by posing “unsubstantial questions” apparently just to ensure that they would appear on live television. Based on survey conducted by the chamber of public research on 19-21 Febuary 2010, it reveals 52.5 percent of respondents view that House Inquiry Committee work only for political interest, while only 34.2 percent view that the lawmakers work for the nation’s sake.

But still, despite the House had failed to prove their allegations of evil intention, 325 members of House of Representatives still insist that the government’s decisions to inject the bailout was illegal and there is indication of corruption.

Is it appropriate that the clashes of opinion between the term of “systemic” and “non-systemic threat” as a form of criminal act ? Despite the fact that after the bailout policy was taken, today our state budget is one of the best in the world and one of the best-growing countries who can survive from global crisis.

Although the House ruling isn’t legally binding, the fact that some lawmakers threatened to withhold funding for the state antigraft body if it failed to quickly follow up their recommendations can be considered as a” threat” to justice. The “threats” are not only for the antigraft body, but also for the finance minister. Some lawmakers threatened to boycott Finance Minister Sri Mulyani Indrawati’s appearance at the House of Representatives.

Replying to the house The state antigraft agency has said that they have to abide the principle of legal proof in the criminal process and therefore they need to collect enough pieces of evidence. They would not depend on the findings of the House committee recommendations because the House’s reccomendation lacked compelling evidence and would be difficult to follow up.

Afterall, who has the “evil intention” ? You decide.

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