INTERNAL RESEARCH REPORT

From : RRF
To : AHO & TTA
Date : 12 March 2024
Regarding : Gratification

Background

Jemy Sutjiawan made a Sale and Purchase of Shares Agreement on August 1,

2019 with Marzuki Usman. As of September 11, 2023, Jemy Sutjiawan, President
Director of PT Sansaine Exindo and a Shareholder, is being questioned by the
Attorney General's Office (AGO) and may be named as a suspect in the ongoing
investigation. He has undergone several examination sessions related to this
case. Meanwhile, Johnny G. Plate, former Minister of Communications and
Information Technology, is facing charges of self-enrichment. He is accused of
receiving Rp 17.8 billion in corruption related to 4G Base Transceiver Stations
(BTS) at his ministry.

Questions

This report will discuss the extent to which a person who commits gratification
can have his assets seized. The second discussion in this Report, when a
Shareholder commits gratification, is the assets valid to transferred.

Definition of Gratification

Juridically, according to the Explanation of Article 12B of Law Number 20 of 2001

concerning Amendment to Law No. 31 of 1999 on The Eradication Of Corruption
(“Law 20/2001”), gratification is a gift in a broad sense, which includes the
provision of money, goods rebates/discounts, commissions, interest-free loans,
travel tickets, lodging facilities, tourist trips, free medical treatment, and other
facilities, both received domestically and abroad and which are carried out using
electronic means or without electronic means.

Gratification that may be Subject to Criminalization

There are further provisions regarding the types of gratification that can be
criminalized, namely: gratification that meet the elements of Article 12B of Law
20/2001 which states that every gratification to a civil servant or state organizer
is considered a bribe if it is related to his/her position and contrary to his/her
obligations or duties, with the following provisions:

a. with a value of Rp10 million or more, proof that the gratification is not a
bribe is carried out by the recipient of the gratification;
b. with a value of less than Rp10 million, the proof that the gratuity is a bribe
is carried out by the public prosecutor.

The giver of gratification cannot be subject to criminal sanctions unless the

gratification is considered a bribe. In the case of gratification that is considered a
bribe, the giver and receiver of gratification can both be subject to criminal
sanctions. This is because in the article on bribery, criminal sanctions are
imposed on the person who gives and the person who receives the gift.

How Far is the Asset Forfeiture in the Crime of Gratification

The punishment for civil servants or state administrators who meet the criteria of
Article 12B of Law 20/2001 is under the Article 5 Paragraph 1 letter a of Law
20/2001 states that, every person who gives or promises something to a civil
servant or state administrator with the intention that the civil servant or state
administrator does or does not do something in his/her position, which is
contrary to his/her obligations, shall be punished with imprisonment for a
minimum of 1 (one) year and a maximum of 5 (five) years and or a fine of at
least IDR50,000,000.00 (fifty million rupiah) and a maximum of
IDR250,000,000.00 (two hundred and fifty million rupiah).

The Validity of Transfer of Shares

Referring to Law Number 19 of 2019 concerning the Corruption Eradication

Commission (“Law 19/2019”) in Article 12 paragraph 2 states that the
Corruption Eradication Commission in the investigation, is authorized to conduct:

a. ordering the relevant agencies to prohibit a person from traveling abroad;

b. request information from banks or other financial institutions about the
financial condition of the suspect or defendant being examined;
c. ordering banks or other financial institutions to block accounts suspected
of being the proceeds of corruption belonging to the suspect, defendant, or
other related parties;
d. order the leader or superior of the suspect to temporarily dismiss the
suspect from his position;
e. request wealth data and tax data of the suspect or defendant to the
relevant agencies;
f. temporarily suspend a financial transaction, trade transaction, and other
agreements or temporarily revoke licenses, licenses and concessions
conducted or owned by the suspect or defendant which is suspected based
on sufficient preliminary evidence to be related to the Corruption Crime
under investigation;
g. request the assistance of Interpol Indonesia or other state law
enforcement agencies to conduct search, arrest, and confiscation of
evidence abroad; and
h. requesting assistance from the police or other relevant agencies to
conduct arrest, detention, search, and seizure in the Corruption
Eradication case being handled.

In summary, the Corruption Eradication Commission has the legal authority to

intervene during investigations by temporarily suspending financial and trade
transactions, as well as other agreements, and by temporarily revoking licenses,
permits, or concessions held or exercised by suspects or accused persons if there
is sufficient preliminary evidence suggesting a link to corruption. These measures
are essential to ensure a fair and thorough investigation process and to prevent
further corrupt activities.

Under the Article 12 Paragraph 2 letter f of Law 19/2019, stipulates that the
suspect or defendant is prohibited to conduct a financial transaction, trade
transaction, and other agreements or temporarily revoke licenses, licenses and
concessions. Based on the Case Law, Jemy Sutjiawan made a Sale and Purchase
of Shares Agreement on August 1, 2019, and became a suspect in the BTS case
on September 11, 2023. Hence, Jemy Sutjiawan's actions did not violate any
applicable laws, and the Sale and Purchase of Shares Agreement was valid, since
the Agreement was not made when Jemy Sutjiawan was named as a suspect.

Other Restrictions to Transferring Shares under the Company Law

According to Article 57 of Law Number 40 of 2007 regarding Limited Liability

Company (“Company Law”), provisions regarding the transfer of rights to
shares can be specified within a Company's Articles of Association. These
provisions may include:

a. the requirement to offer in advance to shareholders with a certain

classification or other shareholders;
b. the requirement to obtain prior approval from the company's organs;
c. the requirement to obtain prior approval from the authorized agency in
accordance with the provisions of laws and regulations.

Article 57 of Company Law also regulated in Article 7 paragraph 6 of the Deed of

Establishment, which states “Before selling, granting, transferring, or any form
of transfer of any shares to a third party other than transfer to an Affiliated
Company, the Shareholder must first offer in writing to the other Shareholders.”

Moreover, under Article 61 paragraph 1 of Company Law, states that every

shareholder has the right to file a lawsuit against the Company in the district
court if he/she is aggrieved by any action of the Company which he/she
considers unfair and unreasonable as a result of a resolution of the General
Meeting of Shareholders, the Board of Directors and/or the Board of
Commissioners.

Therefore, the transfer of shares for shareholders who are suspects in a criminal
case, especially under the Company Law, is more risky due to the need to obtain
prior approval from other shareholders. In addition, the Company Law also gives
shareholders the right to sue if they are aggrieved.

Conclusion
In the case of a Shareholder who is a suspect or defendant in a criminal case and
wishes to transfer shares, such action is prohibited under Law 19/2019. There
are restrictions on the transfer of shares in the Company Law, which are further
regulated in the Company's Articles of Association. However, Jemy Sutjiawan is
not prohibited from transferring shares since the Sale and Purchase of Shares
Agreement was made long before he became a suspect.

Since the Company Law does not provide for a time limit for filing a lawsuit from
the time the decision is made. Jemy Sutjiawan still has the possibility of a lawsuit
from other Shareholders in the company, if they feel aggrieved because of the
Company's actions that are considered unfair and without reasonable cause as a
result of the decisions of the GMS, Board of Directors, and/or Board of
Commissioners.