Judge Mulyono's Dissenting Opinion On State Losses In Asabri's Case Is Appropriate, Calculations Must Be Factual

ILLUSTRATION OF DOCK BETWEEN

JAKARTA - The dissenting opinion of a member judge, Mulyono Dwi Purwanto, in the case of corruption in the management of PT Asabri (Persero) funds regarding state losses of Rp. 22.788 trillion is still potential or not real, which is the right step. Because the calculation of state losses must be real or definite.

Professor of Criminal Law at Airlangga University, Nur Basuki Minarno, assessed that the opinion of Judge Mulyono had complied with the rules. Moreover, even that opinion will be recorded during the next stage of the trial or the appeals and cassation courts.

"If the argument (Judge Mulyono, ed) is like that from the side of the rules, it's true. This dissenting opinion is important to be a record for the court above it, said Nur to reporters, Thursday, January 6.

In addition, said Nur, referring to Articles 2 and 3 of the Corruption Crime Act (Tipikor) the phrase 'can' in a sentence that can harm state finances has been declared invalid by the Constitutional Court (MK). So that state losses in corruption cases must be real, real, and definite state financial losses.

"So, state losses must be real, must be real and definite, not only potential losses, that is actually the same meaning in Article 1 number 22 of Law Number 1 of 2004 concerning State Treasury which states that state/regional losses are lack of money, letter valuables, and goods, which are real and definite in number as a result of unlawful acts, whether intentionally or negligently," he said.

Nur also thinks that Judge Mulyono's opinion differs because the calculation of state losses calculated by the Supreme Audit Agency (BPK) is inconsistent.

The reason is that, on the one hand, BPK's calculations are based on the purchase of investment funds by Asabri which did not comply with procedures. Meanwhile, on the other hand, BPK continues to use the return of securities received from illegally purchased mutual funds in its calculation of state financial losses.

“This means that here, the BPK uses 2 different parameters. So, BPK said that the purchase of investment funds was not in accordance with the procedure, but in its calculations it used the return of securities received from illegally purchased mutual funds. So that the member of the Panel of Judges, Mulyono, considered that it did not show actual state losses, but only showed potential losses," said Nur.

Apart from that, Nur was reluctant to comment further on the process and mechanism for calculating state losses in the Asabri case. Because, he is not an expert in this matter.

However, the calculation of state losses must be certain because it can affect legal certainty and justice for the convict. For example, the burden of returning the state's financial losses.

“I do not understand how to calculate state financial losses, because I am not an accountant. But I underlined as judge Mulyono's opinion, because in the proof of Articles 2 and 3 of the Anti-Corruption Law there must be real and definite state losses, but the calculation carried out by BPK uses total loss. That's what Judge Mulyono highlighted," he said.

"State financial losses cannot be potential losses, because later it will become a burden for the convict to return compensation to the state. So, it must be real and definitely do not let the real state loss only Rp 5 billion, then it becomes Rp 5 trillion, the convict will be able to return it, even though it is not that much what he enjoys, “he continued.

Meanwhile, Judge Mulyono assessed that state losses of Rp. 22.788 trillion based on the BPK report were still potential and not real state losses.

"The audit method used to calculate the calculation of state losses is 'total loss' with a modification, namely calculating the difference in money issued by PT Asabri for the purchase of investment instruments that do not comply with legal regulations minus the funds returned from investments as of December 31, 2019. Meanwhile, according to accounting standards as of a certain date, the profit or loss position is 'unrealized' because it hasn't happened yet or has actually been sold based on the acquisition price, so it's still potential," said Mulyono.