---

Attorneys of the Petitioners in the judicial review of Article 2 paragraph (1) and Article 3 of Law No. 20 of 2001 on Corruption Eradication, Monday (29/4) in the Courtroom of the Constitutional Court. Photo by Humas MK/Ifa.

JAKARTA, Public Relations of the Constitutional Court—The Pertamina United Workers Union Federation requested the judicial review of Article 2 paragraph (1) and Article 3 of Law Number 20 of 2001 on Corruption, Monday (29/4/2019) in the Plenary Courtroom of the Constitutional Court. They requested that SOE officials, especially Pertamina, cannot be subject to criminal sanctions if they take actions that could harm state finances.

Chairman Arie Gumilar and secretary general Dicky Firmansyah of the Pertamina United Workers Union Federation are Petitioners of Case No. 32/PUU-XVII/2019. They questioned the phrase "Anyone" and "detrimental to the finances of the state or the economy of the state." Article 2 paragraph (1) of the Anti-Corruption Law reads, "Anyone unlawfully enriching himself and/or other persons or a corporation in such a way as to be detrimental to the finances of the state or the economy of the state shall be liable to life in prison, or a prison term of not less than 4 (four) years and not exceeding 20 (twenty) years and a fine of not less than Rp200,000,000 (two hundred million rupiah) and not exceeding Rp1,000,000,000 (one billion rupiah)." Article 3 reads, "Anyone with the intention of enriching himself or other persons or a corporation, abusing the authority, the facilities or other means at their disposal due to rank or position in such a way that is detrimental to the finances of the state or the economy of the state, shall be liable to life imprisonment or a prison term of not less than 1 (one) year and not exceeding 20 (twenty) years and/or a fine of not less than Rp50,000,000 (fifty million rupiah) and not exceeding Rp1,000,000,000 (one billion rupiah)."

Attorney Janses E Sihaloho mentioned the business judgment rule, that the decision of a board of directors cannot be contested even though the decision could result in the company experiencing a loss. "An optimal decision of the board of directors certainly results in profits for the company. However, if no proper results are achieved, this is seen as a business risk," he said.

In addition, Janses said that SOEs run businesses similarly to other business entities, by trying to make profits. From corporation legal aspect, directors are given the authority to take steps to make business decisions.

"The authority is protected by law [and] cannot be contested [if] the decision is made in good faith, is in accordance with the existing provisions, is rational, and does not have any conflict of interest," he explained.

He added that corporate actions carried out by Pertamina officials are classified as civil actions. Therefore, criminal sanctions cannot be imposed those actions.

Considering Past Petitions

Constitutional Justice Saldi Isra requested that the Petitioners study the Constitutional Court\'s decisions to check whether a similar case has been decided by the Constitutional Court. "This can be used to strengthen the petition submitted by the Petitioners," he explained. 

If there is a similar case, he said, the Petitioners must pay attention to several things, including the differences in references with past cases.

Justice Saldi also commented on the request for exemption from criminal sanction for BUMN officials. "Later on other professions, such as Civil Servants (PNS), could ask for the same thing. The existing provision can lose its erga omnes nature," he said.

He also asked for the conclusion section to be deleted because it does not exist in the standard petition format in the Constitutional Court. This, he said, could be included in the posita. Constitutional Justice Manahan M. P. Sitompul requested that the legal fact be removed because it was unnecessary.

Constitutional Justice Enny Nurbaningsih stated that the norms in the Law are general. A petition cannot be filed for concrete individual cases. "You are asking that this provision exclude Pertamina specifically. The issue in question is the unconstitutionality, not a concrete case," she said.

---