(an old article responding 2010 House Of Representatives Recommendation concerning Century bank bailout)
President Susilo Bambang Yudhoyono mentioned in his speech following the House of Representatives recommendations over the century bank bailout that the bailout policy was the right choice and such choice was justifiable given the circumstances. The president said that the decision which was taken at the height of the global financial crisis in late 2008 was the quick response that was desperately needed. Therefore, the decision makers should not be subject to criminal charges.
The president himself even backed his two top aides in a televised speech to the nation by stating that 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.
Let’s highlight the president’s statement.
The message from the president is clear: Is it fair to have our decision makers 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 Century Bank bailout policy as it had covered up irregularities, violations of banking regulations and criminal laws such as corruption.
Therefore, according to the recommendations of the House’s inquiries committee , the bailout decision could be the subject of criminal charges.
Based on the doctrine from common law, the ingredient that must be present for there to be criminal charges is the“Mens rea” which in English means “guilty mind”. The use of ”Mens Rea” shows that the prerequisite for an action to be the subject of criminal charges is related to the state of mind.
The concept of mens rea was developed in England during the latter part of the common-law era (about the year 1600) when judges began to judge that an act alone could not create criminal liability unless it was accompanied by a guilty state of mind which can be translated as an “evil intention”. Actus non facit reum nisi mens sit rea which means “the act does not make a person guilty unless the mind isi proven 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 been in to fulfill the prerequisite of the criminal charges.
A fundamental principle of criminal charges is that a crime consists of both mental and physical elements. Sometimes a law creates criminal liabilities for the conduct or omission of a particular act without designating a mens rea. This is known as strict liability.
Possibilities that the decision shall be criminalized still exist. The explanations above alone, does not determine 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.
If the evil intention on the accusation can not be fulfilled, such could be grounds for exemption of the decision the criminal charges liabilities (schuldduitsluitingsgrond). We generally do not punish people for a 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 those ideas, once again, it would be interesting to question Boediono, Sri Mulyani and officials from KSSK, BI, LPS for their mens rea or “evil intention” behind their decision to rescue the troubled Bank Century and its subsequent management of bailout funds, which folded up 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 an 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 up to ten times from the original estimate? Are there any criminal acts involved behind the enactment of decision?
The President said that 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 give judgement over the 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. . Such “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 confidently believe in the occurrence of an “evil intention” 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 out to be “a political idol contest” session by posing “unsubstantial questions” apparently just to ensure that they would appear on live television. Based on a survey conducted by the chamber of public research on 19-21 Febuary 2010, 52.5 percent of respondents view that House Inquiry Committee worked only for political interest; while only 34.2 percent view that the lawmakers worked for the nation’s sake.
But still, despite the failure of the House 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 an indication of corruption.
Is it appropriate that the clashes of opinion between the term of “systemic threat” and “non-systemic threat” in bank Century’s failure 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 the global crisis.
Although the House’s 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 recommendation lacked compelling evidence and would be difficult to follow up.
Afterall, who has the “evil intention” ? You decide.