The BLBI Whirlwind
The Supreme Court’s verdict releases Syafruddin Arsyad Temenggung, previously charged for issuing a letter clearing Sjamsul Nursalim of his Bank Indonesia liquidity support debt. Supreme court justices attempted to persuade another in the panel that the case was not criminal. Supreme Court Chief Justice Hatta Ali is caught in the whirlwind.
Supreme Court justices had a tough deliberation over Syafruddin Arsyad Temenggung’s cassation. Led by Salman Luthan, with Syamsul Rakan Chaniago and Mohamad Askin as members, the cassation judges panel had to deliberate twice. “It’s decided that the court is adjourned for a more in-depth (review),” Salman Luthan told Tempo on Thursday, July 11.
In the deliberation on June 26, Salman said each justice insisted on his own opinion. All three justices had different views on the corruption case involving the letter issued by the 2004 chairman of the Indonesian Bank Restructuring Agency (IBRA) Syafruddin Arsyad Temenggung, clearing Sjamsul Nursalim of debt. Sjamsul was at the time owner of Bank Dagang Nasional Indonesia (BDNI), which had received the Bank Indonesia Liquidity Assistance (BLBI) funds.
In fact, Salman had already scheduled a deliberation on June 25, but he said one of the Supreme Court justices was not yet ready for trial. In the July 9 hearing, the three justices still insisted on their opinions. That day’s deliberation went tough because none of the justices could be swayed. “The deliberation had to be stopped several times because (we) needed to take breaks,” said Syamsul Rakan Chaniago on Saturday, July 13.
Salman feels that the decision of the Jakarta High Court’s panel of judges against Syafruddin in early January was already appropriate. Syafruddin was sentenced to 15 years in prison and a fine of Rp1 billion. The sentence was heavier than the Jakarta Corruption Court’s decision to sentence Syafruddin to 13 years in prison and a fine of Rp700 million on September 24, 2018. Salman refused to respond when we asked him to comment further. “Justices are not allowed to comment on their own decisions,” he said.
Meanwhile, justice Syamsul Rakan Chaniago disagrees with the Jakarta High Court verdict, saying that Syafruddin’s case is a civil one. Mohamad Askin offers yet a different view. He believes that Syafruddin only committed an administrative violation. Syamsul’s and Askin’s votes outnumbered Salman’s. Syamsul did not wish to comment on the decision, citing the ethical code. “Let the academicians examine the decision,” he said.
Syamsul’s and Askin’s opinions counted toward non-criminal violation and trumped Salman’s insistence that the case was a criminal one. Salman said the three opinions resulted in a dismissal, releasing Syafruddin from the sentence given to him in the previous court.
Cleared by the Constitutional Court
When about to formulate their decisions, two members of the panel of justices tried to persuade Salman to change his opinion. “I refused,” said the non-career Supreme Court justice, who chose to stand by his decision. Since the start, Salman was already of the view that the Jakarta High Court’s decision was an appropriate and a convincing one.
That same day, Supreme Court Chief of Legal Bureau and Public Relations, Abdullah, announced the verdict that favored Syafruddin. He said there were dissenting opinions among the three justices. “Stating that defendant Syafruddin Arsyad Termenggung is proven to have committed the act he was charged with but that the act was not a criminal one,” said Abdullah when reading the verdict.
According to a copy of the verdict’s excerpt, Syafruddin has been freed from all charges and will also be immediately released from detention. That same night, the Corruption Eradication Commission (KPK) freed the former Finance Sector Committee secretary from detention. Prior, because of his persistent appeals, he was still detained at KPK’s detention center. Syafruddin was sentenced to 13 years in prison in his first court, the Jakarta Corruption Court. “I’m grateful for the decision,” he said upon leaving the KPK detention center.
One day before the verdict was issued, the KPK held a press conference to urge the Supreme Court to immediately put an end to Syafruddin’s cassation trial. The KPK warned of the verdict’s decision because Syafruddin’s detention period was to end on July 9. If a verdict was not reached by then, Syafruddin had to be released for the sake of law. In the end, Syafruddin was indeed freed by the Supreme Court’s decision. “I signed a release letter that same night,” said KPK Deputy Chairman Laode Muhammad Syarif on Thursday, July 11.
A law enforcer at the Supreme Court explained that when the case entered the Court in January, it immediately received special attention from Chief Justice Hatta Ali. Unlike what is typical for other cases, he said, it was Hatta who chose the three justices for the panel, not the chairman of the criminal chamber. According to the same source, the appointments of non-career judges for the panel was out of the ordinary. “It was odd,” he said. Supreme Court Chief Justice Hatta Ali did not wish to comment on said irregularity. “It has to do with the independence of the justices,” said Hatta.
Sjamsul Nursalim and Itjih Nursalim in Jakarta, 1990./TEMPO doc./Ronald Agusta
Former Supreme Court Chief Justice Bagir Manan chuckled when we asked him to comment on the verdict on Syafruddin Arsyad Temenggung’s case. But Bagir immediately followed the laughter by saying that he was not laughing at the verdict. Although he respected the difference of opinion among the three justices, he said the verdict still had to be criticized. “A judge has to have a basis for his opinion,” he told us on Friday, July 12.
According to Bagir, Syafruddin Temenggung was tried for corruption. Investigators had already concluded that his action should be tried as a corruption case because of the state losses inflicted. Bagir disagreed that the case was a civil one. “I don’t understand the connection with civil (law) because there was no savings and loan relationship in the BLBI case,” he said.
The KPK began investigating the case after receiving a BLBI embezzlement report in 2008. It took five years for KPK’s team to collect data until the case could be recommended for further investigation. After examining at least 71 witnesses, over 10 experts and dozens of items of evidence throughout a five-year period, investigators named Syafruddin Arsyad Temenggung a suspect on April 25, 2017.
At the Jakarta Corruption Court, the panel of judges led by Yanto agreed that the charge filed by KPK prosecutors was proven in court. The Jakarta High Corruption Court’s panel of judges, led by Elang Prakoso Wibowo, also agreed on the criminal charge filed by KPK prosecutors. Supreme Justice Salman Luthan believes that the Jakarta Corruption Court had issued the appropriate vedict. “I agree 100 percent,” he said
In the verdict, the cassation panel stated that Syafruddin was proven to have violated the law and misuse his authority by issuing a letter clearing Sjamsul Nursalim from his BLBI debt when he knew that Sjamsul still had unpaid loans. Syafruddin is believed to have caused Rp4.58 trillion in state losses.
Salman Luthan./ TEMPO/STR/Dhemas Reviyanto Atmodjo
According to the cassation verdict, Sjamsul in fact still had an obligation to resolve the Rp4.8 trillion debt owed by Dipasena aquaculture farmers in Lampung to his bank, Bank Dagang Nasional Indonesia (BDNI). The asset was given to the IBRA as part of Sjamsul’s BLBI obligation.
When signing the BLBI master settlement and acquisition agreement with IBRA in September 1998, Sjamsul made a statement that the aquaculture farmers had had no trouble paying their debt. At the time, he and IBRA agreed on the amount of Rp47.2 trillion after BDNI was frozen. Putting the worth of BDNI asset into account, Sjamsul still has to pay Rp28.4 trillion. Sjamsul paid Rp1 trillion to cover the debt, while the rest was settled by relinquishing Gajah Tunggal Group’s assets and the Dipasena aquaculture.
After a financial and legal audit by a public accounting firm and a law office, IBRA received information that Sjamsul had misrepresented the situation of the farmers’ debt to BDNI, which was guaranteed by Dipasena Citra Darmaja and Wachyuni Madira—two companies owned by Sjamsul.
Bagir Manan./ TEMPO//Eko Siswono Toyudho
Then-chairman of IBRA, Glenn M.S. Yusuf, then wrote a letter to Sjamsul, asking him to hand over more assets to cover for the Dipasena aquaculture farmers’ debt. Two weeks later, on November 12, 1999, Sjamsul replied to Glenn’s letter, refusing the request. He also refused to renegotiate after the finding, insisting that the farmers’ debt was already appropriate. Sjamsul did not waver until Syafruddin Arsyad Temenggung led IBRA in April 2002.
In October 2002, Sjamsul began to communicate with IBRA to discuss the Dipasena aquaculture farmers’ debt. That same month, he sent his wife, Itjih Nursalim, to attend two meetings at the IBRA office, which, according to court witnesses was on Syafruddin’s invitation. In the two meetings, Itjih said her husband never gave false information on the farmers’ debt. Later it was known that in the two meetings, Syafruddin had decided that the debt was a good asset, so that Sjamsul had no need to hand over more assets.
According to the minutes of the last meeting on October 29, Syafruddin concluded that Sjamsul did not misrepresent the debt. Because of this, Syarifuddin did not order his subordinates to perform a restructuring process. Once he felt the aquaculture farmers’ debt was not problematic, Syafruddin signed a letter stating that Sjamsul debt as a BLBI obligor had been cleared.
It is this action that the KPK as well as the Corruption Court and High Court judges felt was Syafruddin’s criminal act. “The suspect understood clearly that Sjamsul had misrepresented the aquaculture farmers’ debt as sound when it was problematic,” read the court’s verdict. Syafruddin was even believed to have known about the farmers’ bad debt since the time he sat as the secretary of the finance sector policy committee, an institution formed by the finance ministry to oversee BLBI debtors.
Unlike Salman Luthan, Syamsul Rakan Chaniago and Mohamad Askin rejected KPK prosecutors’ charge. Both believe that Syafruddin did not show malicious intent, nor did he violate the law and abuse his authority. They agreed that Syafruddin had not committed a criminal violation.
Furthermore, the two justices tried to influence Salman to support their opinion. “I will always commit to doing the right thing,” said Salman. However, Abdullah said that he did not view the verdict as odd. “The justices are very independent in forming opinions,” he said.
Syafruddin Temenggung’s attorney, Ahmad Yani, said his side had already said that the case was a civil one since the start. He also denied that Syafruddin was responsible for the error in calculating the assets submitted by Sjamsul Nursalim, resulting in a letter clearing him of debt. “Pak Syafruddin’s job was not to calculate the value of the assets,” he said on Friday, July 12.
From Pre-trial to Cassation
ON the day the Supreme Court announced that Syafruddin Arsyad Temenggung was to go free, Corruption Eradication Commission (KPK) investigators were summoning witnesses against suspects Sjamsul Nursalim and his wife, Itjih Nursalim. Those examined were 1998-1999 Finance Minister Bambang Subianto and 2001-2004 Chairman of National Development Planning Agency, Kwik Kian Gie. The next day, investigators also examined several witnesses, including former State-Owned Enterprises Minister Laksamana Sukardi.
The KPK named Sjamsul and Itjih Nursalim as suspects in a preliminary hearing in mid-May. Both are indicted on charges similar to Syafruddin’s. According to KPK Deputy Chairman Saut Situmorang, the Sjamsul case was developed from Syafruddin’s case. Because Sjamsul and his wife, both of whom now live in Singapore, have never appeared for examination summonses, the KPK is preparing for trying their cases in absentia.
Besides the complexity of the case, because the investigation began in 2013, KPK Deputy Chairman Laode Muhammad Syarif said there was plenty of legal resistance since his institution named both Sjamsul Nursalim and his wife as suspects. The process of investigating Sjamsul’s involvement, said Laode, was difficult because he never cooperated whenever he was summoned to be examined. Sjamsul even resisted by taking the Supreme Audit Agency (BPK)—which provided the basis calculation of state losses for the case against him—to court. “The trial is at the Tangerang District Court,” said Syarif.
What shocked KPK was the cassation verdict on Syafruddin. According to Syarif, the verdict was bizarre because the three justices gave different opinions. He says Syafruddin had always known that what Sjamsul paid to the government did not equal his debt. “He enriched others using his position,” said Syarif.
Syarif says his institution has prepared options so that the BLBI charges can be proven with a permanent legal force. The motivation, he said, is to return the Rp4.58 trillion in state losses. The case is the biggest the KPK has ever handled, said Syarif. “It’s a big case. The bigger the tree, the more powerful the wind blow upon it.”
A law enforcer overseeing the case says the person most benefited by the verdict is Sjamsul Nursalim. The dismissal, explained our source, will be a basis for him to annul the suspect status, which will be fought for in court. “The only way to annul the Syafruddin verdict is a review,” he added. “The Constitutional Court’s decision forbidding prosecutors to request a judicial review is being carefully studied by the KPK.”
Sjamsul’s attorney, Maqdir Ismail, says the judge should have categorized the BLBI case as a civil case. BLBI matters, he said, is a debt issue that should have been managed by the police or the prosecutors’ office. “The KPK must honor Supreme Court’s verdict by relinquishing the case to other institutions,” he said.