Helmut's Attorney Reveals Chronology Of Alleged Mining Business Criminalization

Illustration. (Photo: Pixabay)

JAKARTA - The attorney for the former Main Director of PT CLM Helmut Hermawan, Rusdianto Matulatuwa, explained the origins of the alleged criminalization that his client experienced.

Rusdianto said that initially PT Asia Pacific Mining Resources (APMR) as the owner of PT CLM made a civil agreement with PT Assera represented by Zainal Abidinsyah.

PT APMR then intends to borrow funds from PT Assera in exchange for shares. But the agreement in 2019 did not reach an agreement.

"Because the agreement has almost entered into the specified time limit, they are again making an accessoir (additional) civil agreement to the first principal agreement," said Rusdianto, in his statement, Monday, March 6.

In the end, said Rusdianto, neither of the two agreements were fulfilled. So that it must go through a lawsuit mechanism at the Indonesian National Arbitration Board (BANI).

But BANI's decision was annulled by the South Jakarta District Court, especially regarding the binding sale and purchase agreement (PPJB).

"However, the accessoir agreement has not changed," said Rusdianto.

But recently, it was the contents of the accessoir agreement that caused a stir. Because it gave rise to executive powers, the South Jakarta District Court accepted a request to exercise shares.

Rusdianto said that during the execution there were multiple interpretations in the minutes. He stated that the execution, which was carried out on Monday, April 18, 2022, had already taken place but had not yet been carried out.

However, the minutes of the execution were included in the notarial deed number 6 dated 24 August 2022, which stated the statement of changes to the General Meeting of Shareholders (GMS).

"(Though) the bailiff was unable to meet the person whose shares were to be executed," said Rusdianto.

Rusdianto added, before the execution process was carried out, his client had asked the Directorate General of General Legal Administration (AHU) to block the shares at the Ministry of Law and Human Rights.

Therefore, third parties wishing to execute shares cannot see the composition of the board of directors and their shares in the company. As a result, the execution process was not successful.

However, Rusdianto said that because the minutes of the execution had been included in the notarial deed, the Director General of AHU could unblock what his client had done and was free to see the composition of the shares in PT APMR and PT CLM.

"So they made changes to PT APMR's share ownership," said Rusdianto.

On September 13, 2022 at 17.20 WIB, the amendment to the notary deed was determined at the PT APMR GMS. In the evening, around 20.59 WIB, the decision was approved by AHU. A minute later, the notary issued deed number 7 concerning the decision of PT CLM's shareholders.

Surprisingly, before the day changed, the Director General of AHU again issued an endorsement. However, this process usually takes a long time.

Thus Rusdianto said, within seven hours there were two certificates made by the Director General of AHU. This made his client lose the composition of the shares and the position of directors.

"Because the takedown has taken place, of course in formal legal terms, the share rights are on their side. So, we, who were originally there, are non-existent and illegal," said Rusdianto.

Another oddity is the decision letter (SK) issued by the Ministry of Energy and Mineral Resources, regarding the Company's Work Plan and Budget (RKAP) which was issued on Saturday 4 February.

The letter ultimately kept Rusdianto and his client busy with the police. In fact, according to him, the initial problem was the unresolved PPJB.

In his view, Rusdianto suspects that there is the presence of certain parties with great power which paralyzes the law.

“Those things make the process go one way. I appeal to law enforcers, give them the opportunity to resolve it from the start," said Rusdianto.

His party is currently filing a lawsuit for the cancellation of the PPJB at the South Jakarta District Court and the cancellation for the SK issued by the Directorate General of AHU, related to the deed that came out overnight.

Rusdianto emphasized that the legal process that befell his client seemed forced. Especially criminal matters that are ultimum remedium in nature which should be the last legal remedy after other processes have been passed.

"If this continues in one direction, we could lose everything," said Rusdianto.

Meanwhile, Ahmad Redi, as an academic and also an expert in the field of mining law, assessed that the case experienced by Helmut Hermawan and PT CLM was a civil matter.

The basis is Minerba Law number 4 of 2009 and Law Number 3 of 2020 which states that mining business owners can transfer their shares as long as they have approval from the Minister of Energy and Mineral Resources.

"So if there is no permission from the Minister of Energy and Mineral Resources, like it or not, like it or not, the process of transferring shares legally is not valid, so it is not limited to AHU," he said.

Then he asked law enforcement to look at this case from a civil law perspective before bringing it to the criminal realm. If it is violated civilly, then there is a threat of administrative sanctions up to the revocation of the Mining Business Permit (IUP).

Then in the context of criminal law, there must be evidence beforehand in the investigation process if there is falsification or information conveyed incorrectly with malicious intent.

"For example in the context of reducing state revenues, or expanding its particular area," he said.