RECOVERING INDONESIA’S ASSETS: PAST,
PRESENT AND FUTURE
Amien Sunaryadi and Dayu Nirma Amurwanti
Abstrak
Tulisan ini menjelaskan mengenai pengalaman Indonesia dalam proses pengembalian aset curian dan hal-hal yang dapat dilakukan di masa depan untuk mencapai pengembalianaset yang efektif. Dalam beberapa kasus, Indonesia sukses dalam pengembalian aset curian seperti dalam kasus Kartika Thahir. Namun kegagalan juga dialami, seperti pada kasus-kasus perbankan. Dengan demikan, Indonesia perlu meningkatkan upaya pengembalian aset curian, di antaranya dengan pembuktian kuat bahwa aset yang ingin dikembalikan adalah aset curian, permintaan bantuan secara informal dan formal, kepemimpinan yang kuat, sumber daya manusia, dan pembagian tugas dan fungsi yang jelas antara instansi terkait.
Kata kunci: Kartika Thahir case, prove, persistent effort, international cooperation
Asset Recovery: an Arduous and Tenuous Process
Many developing countries have already sought to recover stolen assets and proceeds of crime, including Indonesia. With US $20-40 billion stolen every year through bribery, only US $5 billion is recovered to date, after years of high profile, politically sensitive legal battle46. Yet it is important for any government to declare that crime does not pay – that ill-gotten assets have to be contested and repatriated. Indonesia’s experience in asset recovery is a mix of success and perils, with much to be learned.
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Learning from the Past: can history repeat itself?
In 1994, Pertamina47 managed to recover USD $76 million48 from the contested 17 deposits in Singapore from the Kartika Thahir, the wife of General Achmad Thahir, after 17 year-long civil proceedings and appeal in Singapore. Pertamina managed to prove, based on the first instance court ruling that all bribes and earned interest deposited in the accounts are derived from a breach of fiduciary duty. The success came after years of court battle, millions of dollars paid to foreign lawyers, and the determination to provide a firm link between the funds received and source of bribes as well as, Gen Thahir’s role in Pertamina – which involves intensive and carefully considered evidence gathering and presentation with strong support from the government.
For any international asset recovery efforts to be successful, clear nexus has to be established between contested assets and the offense: that assets are benefits derived from the offense. The Singapore court ruling in the Kartika Thahir case describes that the deposits are commissions from foreign contractors awarded through fraudulent manner involving Gen. Thahir.
More importantly, strong leadership to manage a team of different background and expertise is key – aside from undivided focus and persistence. Indonesia’s fight to recoup Pertamina’s assets is led by General LB “Benny” Moerdani – a fearless, action oriented leader and strategists from the Indonesian military – his leadership unwavering in 17 years, and remained strong through 3 prominent positions: General Moerdani was the Chief of Indonesian Strategic Intelligence Agency (BAIS) when the case was first heard in court (1977), the Chief of Indonesian Military in 1983-1988, and the Minister for Defense in
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PT Pertambangan Minyak dan Gas Bumi Negara, a state owned enterprise whose principal business is in exploration, processing and marketing of oil and natural gas. 48
Kartika Ratna Thahir v PT Pertambangan Minyak dan Gas Bumi Negara (Pertamina)
199449. The General was not alone – he had access to the best human resources in his team and funding for the team to operate.
It is conceivable that the Pertamina’s success has not been repeated. A similar opportunity presented itself in 2007 when the Royal Court of Guernsey ordered an injunction and offered the Government of Indonesia to be a third party. Although the legal battle is still ongoing, the Indonesian government is criticized for not doing enough to prove its claim that the 36 million Euros are proceeds of corrupt practices. Other high profile international recovery cases are the Bank Indonesia liquidity funds (BLBI) – misused during the 1998 financial crises, and scams in the state owned BNI and Mandiri. In all of the banking related cases, Indonesia only managed to recover USD $3 million from a total of USD $280 million allegedly stolen50.
The Pertamina success came long before instruments are available for Indonesian authorities and to facilitate international cooperation. It precedes the signing of bilateral and multilateral treaties on mutual legal assistance, the declaration of United Nations Conventions against Transnational Organized Crime (UNTOC) and against Corruption (UNCAC), and the promulgation of domestic laws such as laws on Mutual Legal Assistance and Extradition, Laws on Money Laundering and others. Capacity and experience in drafting requests is also enhanced over the years – if Indonesia is better equipped – why history of success in recovering asset has not repeat itself?
Learning from the past, critical success factors for asset recovery are: ability to show nexus between contested assets and the offense, strong leadership of the team and persistent efforts.
The present: systematic asset recovery efforts- have they delivered? Recovering ill-gotten assets or proceeds of crime in other jurisdictions require international cooperation. Most information sharing is taking place through informal, less bureaucratic manner between law enforcement authorities or financial intelligence units, but when coercive measures are required to order production of documents, to prevent
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dissipation of assets, and to recover assets – assistance is sought from corresponding jurisdictions. When requesting assistance a formal request is presented, to allow the requested state to act based on the request.
Law Number 1/2006 on Mutual Legal Assistance states that the Central Authority is the Ministry of Law and Human Rights, and that request for assistance shall be conveyed by the Minister (directly or through diplomatic channels) based on an inquiry from the Chief of Indonesian National Police (Kapolri) or the Attorney General51, or in the case of corruption, from the Chair of the Corruption Eradication Commission (KPK). Within each of the institutions stated in the law, procedures to initiate request vary, some are better defined than others.
In fact, the articles translate to layers of steps which have to be undertaken prior to the drafting or even submission of request for assistance. Overall KPK applies less bureaucracy, but the volume of cases handled by the KPK is marginal compared to the Indonesian National Police (INP) or the Attorney General’s Office (AGO).
During pre-investigation or investigation stage – when assets are identified and located, and there is fear of dissipation, the investigating officers may initiate request. The letter from the Chief of INP to the Central Authority is drafted upon review and approval of the supervisors – the head of unit, director, and the Deputy Head of Criminal Investigation Division. The internal review process constitutes strings of paper work – before a formal letter is signed and presented to the Central Authority.
Assets may also be identified at the investigation stage, but the need to seize assets arises during prosecution stage. The prosecutor for the case has to express the request either to the District Attorney or to the Attorney General, after review by the Deputy Attorney General for Special or General Crimes, with some support from the Legal Bureau.
The court may also order the confiscation and forfeiture of assets through court orders, which have to be executed abroad. In this case the Attorney General will present a letter to the Central Authority to request foreign jurisdictions to execute Indonesian court orders.
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At any stage, the Directorate of International Law and Central Authority is tasked with conducting technical assessments on legality, format, legal basis to proceed, and communicating with the requested state authority prior to sending a formal request from the Minister of Law and Human Rights, on behalf of the Government of Indonesia. When there are questions concerning the request, the Central Authority will have to request the Chief of INP or the Attorney General or the Chair of the KPK to respond, through a letter, and the process returns in full cycle.
For civil actions taken abroad, such as the case in Guernsey, the process is less defined. In all cases that involve asset recovery in foreign jurisdictions, teams are appointed and assigned to expedite processes and overcome issues related to inter-agency coordination.
So have the fore mentioned processes been delivered? Have better capacities (from experience and trainings) manifested in better, more concerted efforts? Indonesia is not necessarily prolific in producing requests, let alone been successful in ensuring that foreign authorities are able to act upon the requests based on the standards of the requested state. What are the impediments, which prevail to this date?
Instruments +Capacity - Clearly Defined Accountability = Recipe for Ineffectiveness?
Asset recovery, for the many so called ‘practitioners’, has not been treated as a matter of utmost importance and urgency. Yet they are not the only one to blame. For those holding in different positions in any of the multiple stages in the asset recovery process, ensuring that any mutual legal assistance request submitted by Indonesia is executable – can never be traced or located in their terms of reference, primary responsibilities and functions (tugas pokok dan fungsi, tupoksi), key performance indicators – which explains why specific appointments or team creations are required for each case.
manage hand over of information and responsibilities. But have we lost all hope?
The Way Forward: A Comprehensive Diagnosis before Immediate Cure It is impossible to ensure that a fearless action oriented leader such as General Moerdani to lead every single effort to recover ill-gotten assets abroad. But with clear division of roles and responsibilities, enhanced accountability of everyone involved, dedicated resources able to convince foreign jurisdictions on the claims of Indonesia’s stakes abroad - then we may have a better chance of winning our battles.
There is an impetus for change, for reform – as public is now demanding expediency – or at least greater accountability - in recovering assets of high profile corruption and bank fraud cases. However, a simplistic view of the problem may not suffice in addressing the human resource management, institutional and legal framework issues. A thorough diagnosis of the business process, institutional set up, capacity, legal framework, and even resources is paramount prior to determining how to move forward at full speed. And only with such, then the history of success in recovering millions of dollars’ worth of ill-gotten assets will not only repeat itself, but will also multifold.***
