15 Legal Experts Assert Pertamina Matter Is Purely Commercial Relationship, Not Corruption Offence
Fifteen legal experts from various universities, including specialists in government procurement, have concluded that an allegation of corruption in crude oil and refined product management at PT Pertamina (Persero), its Sub Holding, and Work Co-operation Contract (KKKS) contractors during 2018-2023 does not constitute a criminal corruption offence. The matter is purely a commercial relationship.
This determination was based on findings from an examination session held by the Faculty of Law of Wahid Hasyim University in Jakarta regarding a court decision in a corruption case involving Muhamad Kerry Adrianto Riza, Dimas Werhaspati, and Gading Ramadhan Joedo.
The examination considered the indictment, prosecutor’s statement, defence arguments from the defendants’ legal advisers and the defendants themselves, and court transcripts. The experts concluded that the matters concerning ship leasing by PT Pertamina International Shipping (PT PIS) from PT Jenggala Maritim Nusantara (PT JMN) and fuel terminal leasing by PT Pertamina (Persero) from PT Orbit Terminal Merak (PT OTM) represent purely commercial relationships and not corruption offences as defined in Article 603 of Law Number 1 of 2023 concerning the Criminal Code.
The 15 experts included: Prof. Dr. Eva Achjani Zulfa (University of Indonesia Faculty of Law); Prof. Dr. Tongat (Muhammadiyah University Malang Faculty of Law); Prof. Dr. Amir Ilyas (Hasanuddin University Makassar Faculty of Law); Prof. Dr. Rena Yulia (Sultan Ageng Tirtayasa University Banten Faculty of Law); Dr Mudzakkir (Islamic University of Indonesia Yogyakarta Faculty of Law); Dr. Chairul Huda (Muhammadiyah University Jakarta Faculty of Law); Dr. Fachrizal Affandi (Brawijaya University Faculty of Law); Maradona (Airlangga University Faculty of Law); Dr. Mahmud Mulyadi (North Sumatra University Faculty of Law); Dr. Ir. Nandang Sutisna (Expert and Consultant in Government Procurement); Dr. Beniharmoni Harefa (UPN Veteran Faculty of Law); Dr. Aditya Wiguna Sanjaya (State University of Surabaya Faculty of Law); Dr. Rocky Marbun (Pancasila University Faculty of Law); Dr. Azmi Syahputra (Trisakti University Faculty of Law); and Karina Dwi Nugraha Putri (Gadjah Mada University Yogyakarta Faculty of Law).
Dean of Wahid Hasyim University Faculty of Law, Dr. Mastur, stated that the examination was conducted as part of developing academic discourse regarding corruption case handling in Indonesia.
“We at Wahid Hasyim Faculty of Law are conducting this examination as discourse for the future development of legal science. Because corruption cases have indeed required new discretionary discourse on the development of legal science,” said Mastur on Thursday (12/3).
He added that the activity involved legal experts from various fields to provide a comprehensive view of developments in criminal law, administrative law, and legal sociology.
“Today, in this examination, there are various legal experts in both criminal and administrative fields seeking to develop perspectives in their legal fields, including future developments in corruption cases,” he said.
Based on the examination findings presented by Wahyu Priyanka Natapermana from the Faculty of Law of Islamic University of Indonesia, the academics concluded that matters concerning ship leasing by PT Pertamina International Shipping (PIS) from PT Jenggala Maritim Nusantara (JMN) and fuel terminal leasing by PT Pertamina from PT OTM constitute a commercial relationship and do not meet the elements of corruption.
“The matters concerning ship leasing by PT JMN to PT PIS and fuel terminal leasing by PT OTM to PT Pertamina are purely commercial relationships and not corruption offences as defined in Article 603 of Law Number 1 of 2023 concerning the Criminal Code, or Article 2 of the Corruption Eradication Law,” she said.
The examiners also noted that the judges did not clarify the legal status of the defendants in relation to corporate criminal liability and the system of criminal responsibility. Thus, the legal experts determined that the element of “any person” in Article 2 of the Corruption Eradication Law was not satisfied.
During the trial, the three defendants were said to have held strategic positions in several companies. However, the examiners found that the judges did not explain in their legal reasoning the defendants’ status regarding criminal conduct as a matter of corporate criminal liability and its system of criminal responsibility.
Regarding the ship leasing by JMN to PIS, the examiners found that the confirmation to Bank Mandiri questioned in the case constituted part of the investment credit application process for ship purchase.
According to the examiners, such confirmation was an initiative by Bank Mandiri in implementing the Know Your Customer principle and therefore cannot be qualified as unlawful conduct under Article 603 of the Criminal Code.
Additionally, the inclusion of a domestic transportation clause requiring Indonesian-flagged vessels was deemed lawful as it constitutes implementation of the Shipping Law provisions.
“Although including a domestic transportation clause would exclude foreign-flagged vessels from participating in the tender, the inclusion of such a clause is part of implementing the Shipping Law.”