GOI DROPS CORRUPTION CHARGES AGAINST FORMER

C O N F I D E N T I A L SECTION 01 OF 04 JAKARTA 006332 SIPDIS SIPDIS E.O. 12958: DECL: 06/18/2016 TAGS: PGOV ECON KDEM KJUS KCRM ID SUBJECT: GOI DROPS CORRUPTION CHARGES AGAINST FORMER PRESIDENT SUHARTO JAKARTA 00006332 001.2 OF 004 Classified By: Political Officer Mark Clark. Reason: 1.4 (d). SUMMARY -------------- ¶1. (C) The Yudhoyono administration appeared inconsistent and confused as prosecutors dropped corruption charges against ailing former President Suharto. The handling of Suharto's case illustrates poor policy coordination at the top level of the GOI, and the outcome appears to have reduced, at least temporarily, Yudhoyono's standing with NGOs and liberal segments of civil society. Cabinet members made contradictory statements about Suharto's legal status; eventually, President Yudhoyono let stand a statement of the Attorney General that prosecutors had dropped corruption charges, reversing a threat of aggressive prosecution just one week earlier. This case had been inactive for years, and few observers believed it would move forward; Suharto lies critically ill in a Jakarta hospital. Indonesia's premier anti-corruption agency, KPK, sees better prospects in targeting on-going, large-scale corruption rather than reaching back to the Suharto era. But abandoning the prosecution of a notoriously corrupt, high-profile figure has prompted public questioning of President Yudhoyono's commitment to fighting corruption, one of the central pledges in his 2004 campaign. Caring little about the technical merits of the case, many Indonesians will be disappointed with the symbolic exoneration of Suharto without pursuit of his substantial ill-gotten wealth. End Summary. TUG-OF-WAR OVER "CHARITABLE" FOUNDATIONS -------------- ¶2. (U) Former President Suharto's supporters and detractors have engaged in a sustained tug-of-war over his legal fate since his downfall in 1998 and the ensuing investigations into his financial empire. In early 2000, Suharto was placed under "city arrest," but courts subsequently halted legal proceedings on the ground of Suharto's failing health. Many have subsequently questioned the propriety of this determination, by a panel of physicians -- especially when Suharto made public appearances and hosted foreign leaders at his residence. Pressure to resume proceedings against Suharto occasionally arose in recent years. ¶3. (C) The corruption case against Suharto revolves around the business activities of seven social welfare foundations Suharto set up during his Presidency. It has not touched on any funds Suharto may have illegally transferred overseas or on the business interests of his children--each of which is an object of public anger. (A UBS Warburg official told us recently that Suharto was one of the biggest Indonesian customers of UBS Warburg's private bank for years.) According to Anti-Corruption Commission Vice Chairman Amien Sunaryadi, with political patronage from Suharto, the foundations found it easy to raise funds from the GOI, private companies, and other sources. They used much of these funds to finance a range of social welfare activities, including providing "thousands of scholarships" to students and supporting orphanages and senior citizen centers. ¶4. (C) However, during Suharto's later years, the foundations also loaned large sums of money to a number of Suharto cronies, including Bob Hasan, much of which was never paid back. Suharto personally approved these loans, Sunaryadi said. Since the foundations had collected funds from the GOI, the AGO determined that the bad loans constituted a "loss to the state," the key requirement for a corrupt act under Indonesian law. However, Sunaryadi noted that the AGO had never attempted to prosecute any of the recipients of the loans or othe foundation officials involved in approving them SUHARTO'S ILLNESS PROMPTS PUBLIC VACILLATION -------------- ( -------------- -------------- 5.(U) Attorney General Abdul Rahman Saleh said publily on April 21 that a special team of 20 doctors ould soon reexamine Suharto to determine his fitess for trial. On May 3, Saleh said that this pan had become uncertain, b"ecause he had no budge for the estimated costs of over 20,000 USD. OnMay 4, following a meeting with former Malaysian Prme Minister Mahathir, Suharto was admitted to a akarta hospital for treatment related to intestinal bleeding. h(s"prompte d JAKARTA 00006332 002.2 OF 004 a flurry of statements from leading figures: - On May 5, the press quoted Saleh as saying, "My associates and I are determined to resolve this case completely. This is not because we dislike Mr. Suharto and want to make difficulties for him, but is for the sake of clarifying the status of the former President and his case." The media portrayed Saleh as retaining an adversarial disposition toward Suharto. - On May 8, Vice President Kalla said "we should no longer think about legal prosecution against an ailing former leader," according to media reports. - On May 10, following a meeting Yudhoyono held with top state officials, Coordinating Minister for Political, Legal, and Security Affairs Widodo A.S. told the press that the disposition of Suharto's case would be based on consideration of political, economic, legal, humanitarian, health, and moral factors, as well as historical precedent and the community's sentiment. This would require the gathering of further documentation to attain a "comprehensive formulation." - On May 11, the South Jakarta District Attorney issued a decision formally closing the case against Suharto because of his ill health. - Also on May 11, State Secretary Yusril Mahendra said that the GOI would no longer pursue corruption charges against Suharto, although the legal modalities for dropping the case remained undetermined. Yusril visited Suharto in the hospital May 11, where he told journalists, "I (wish) to convey the government's decision to terminate the investigation into the Suharto case." Separately, Attorney General Saleh stated that the travel ban against Suharto had been lifted to allow him access to overseas medical treatment. - Later that day, Presidential Spokesman Andi Mallarangeng refuted Yusril's claim, saying that President Yudhoyono had not yet made any decision on the case. - On May 12, President Yudhoyono told the press, "If it's impossible to pursue prosecution due to Suharto's health, we believe that the foundations, which are the reason we were pursuing the prosecution, can be relinquished to the state." (Note: Substantial portions of the Suharto's wealth was in the hands of foundations under his control. End Note.) - Also on May 12, AG Saleh made public reference to the action of the South Jakarta District Attorney and announced in a press conference that, accordingly, Suharto was "free." ¶6. (C) Although a fine compromise on paper, it may be difficult to recover significant funds from the foundations. Sunaryadi of the KPK told us that when the AGO initiated its investigation of the foundations in 2000, Suharto handed over their management to former Coordinating Minister for Public Health Haryono Suyono. Management of the foundations has since passed from GOI minister to minister, giving the GOI "ex officio" control since 2000. Sunaryadi said that there is evidence that the foundations have suffered from poor management since they passed to the GOI, and their current financial position is unclear. "There is still a lot of money in the foundations," he admitted, "but they also have significant liabilities" in the form of expected future contributions to scholarships, orphanages and the like. Taking large amounts of money from the foundations would bring these social programs to a halt, likely prompting protests. PROSECUTORS' VIEWS -------------- ¶7. (C) A contact in the Attorney General's Office confirmed to us that the South Jakarta District Attorney, as the lead prosecutor in the case, maintained the authority to close the case due to Suharto's failing health. Attorney General Saleh concurred with this decision, according to our source. For the President to have weighed in on this medical determination or the District Attorney's response to it would have appeared as improper politicization of the case. Theoretically, should Suharto's health improve, the former President would again be subject to criminal proceedings, as stipulated by the Supreme Court order from 2000 which halted JAKARTA 00006332 003.2 OF 004 his prosecution because of his poor health. Also, the AGO may reopen the case should new evidence come to light supporting its prosecution. (Comment: Without a change in Suharto's health, this would appear highly inconsistent, but our contact may have floated this possibility in an effort to reduce political backlash for closing the case. End Comment.) ¶8. (C) Legally, the President does not have the power to reopen the prosecution. Both the President and the AG have the authority to end prosecutions for the sake of public interest. The President also has the authority to grant a pardon. These moves would permanently close the case against Suharto, in a manner more definitive than the District Attorney's action. NGOS' VIEWS -------------- ¶9. (C) Leading Human Rights organizations held a press conference on May 16, to speak with "one voice" in their opposition to the Attorney General's decision to drop the corruption case against Suharto. Rafendi Djamin, head of Human Rights Watch Group (HRWG) told us that we can expect demonstrations as a result of the decision, especially on May 21, the anniversary of Suharto's downfall. Mugiyanto, head of the Indonesian Association of Families of the Disappeared (IKOHI),said the human rights community was united in their opposition to the Attorney's General's decision because it set a bad precedent for future charges of human rights violations against Suharto. Djamin even went so far as to say that accountability for Suharto's actions was the key to "reformasi" -- the term used here to describe democratization since 1998. (Comment: Opposition figure Amien Rais was quick to describe closure of the Suharto case as a slap against "reformasi." End Comment.) ¶10. (C) Activist legal experts say although the Attorney General has the legal authority to dismiss the case against Suharto, they are disappointed he did not seek a legal alternative to hold Suharto accountable. Ibrahim Assegaf, head of Hukumonline, an online legal resource, acknowledged Suharto was very sick. He said all of the twenty doctors that examined Suharto, including some doctors that Suharto had once jailed, agreed that Suharto will not recover from his current illness. However, Assegaf, citing the Pinochet trial as an example, also argued that there should be a way, using the law, to hold Suharto accountable, if only to force him pay back the money he allegedly stole from Indonesia. Bivitri Susanti, Executive Director for the Center for Indonesian Law and Policy Studies, saw the termination of the case as the result of political pressure and said that in private discussions with the Attorney General he gave "signals" that he was unhappy with the decision but could not explicitly say so. Susanti also pointed out that the corruption case was best way to hold Suharto accountable because a human rights case would be legally more complicated and require approval of the parliament, which legislators have been historically hesitant to give. DETRACTING FROM ANTI-CORRUPTION CAMPAIGN? -------------- ¶11. (C) Not surprisingly, the view from Indonesia's lead anti-corruption institution, the KPK, is more nuanced. Sunaryadi said the KPK board met on May 15 to discuss the Suharto case, and concluded that there need be no "direct link" between prosecuting Suharto and the effectiveness of the GOI anti-corruption campaign. "A symbol is a symbol, but corruption is corruption," Sunaryadi said, and Indonesia remains a target-rich environment. He argued it would be much more effective for the KPK and other GOI anti-corruption bodies to shift their focus away from acts that took place before Indonesia's 1999 Corruption Law came into force, and instead focus on institutions where there are ongoing, large-scale corrupt activities, such as Bulog and Pertamina. Procurement kickback scams with their roots in the Suharto era remain commonplace at both these institutions, Sunaryadi said, and prosecuting the responsible officials would have a much greater impact on day-to-day corruption than a case against Suharto, especially if the prosecutions were followed by institutional reforms. He said the KPK has traced kickbacks from a Bulog commodity procurement through a half dozen intermediaries to a payment for a luxury residence for the child of a senior Bulog official. JAKARTA 00006332 004.2 OF 004 COMMENT -------------- ¶12. (C) Media reports made policymakers' public remarks on the Suharto case appear inconsistent and confused. This likely reflects a confluence of factors, including attempts by Suharto sympathizers to influence the outcome of the debate; the desire of some policymakers to float trial balloons allowing them to gauge public reaction; some officials' uncertainty about the legal modalities; and a lack of discipline and coordination within the Yudhoyono government. It remains unclear to us whether the South Jakarta District Attorney, who took the most significant step in stopping the case, did so based on instructions from above, and, if so, whether President Yudhoyono exercised decisive leadership in this matter. The appearance was of a president taken by surprise. Rather than letting the Suharto prosecution disappear through the inevitable passing of the former strong man, Yudhoyono is now tagged with a proactive decision to drop the charges, leaving him vulnerable to criticism for not pursuing justice and abandoning "reformasi." Yudhoyono will need to portray this legal decision as the proper approach for treating an ailing former ruler and for coming to terms with the country's authoritarian past. Some credible effort to retrieve Suharto's ill-gotten wealth, hinted at by Yudhoyono in his May 12 comments, would go a long way in selling this approach. PASCOE