Corresponding Author: Aida Ardini
E-mail: [email protected]
INTRODUCTION
The 1997 � 1998 global financial crisis started in Thailand and
then quickly affected neighboring countries. It first hit Indonesia, South
Korea, and Malaysia, this financial crisis that occurred in Asia became a
global crisis that would later hit Russia and Brazil in 1999, followed by
Argentina and Turkey in 2001. In Indonesia, it began with the depreciation of
Rupiah against American Dollar (�USD�). Indonesian banks ran out of capital due
to bad loans, which IMF concluded to have started a domino effect, giving rise
to many new policies resulting in the closure of 16 (sixteen) national private
banks in Indonesia (Chou, 1999). However, it turned out that the effects of these new policies
also had an impact on worsening economic conditions.
As a matter of fact, the government�s
effort to implement a very tight monetary policy to stabilize the value of the
Rupiah (tight money policy) created a negative effect on banking in Indonesia (Yunus et
al., 2017). There were also a number of issues that
existed in general public, from the loss of foreign exchange transactions to
the issue of confiscation, causing the occurrence of massive withdrawal of
funds by the customer who would immediate ely
transfer them from a large private bank to a government bank or a foreign bank.
In the audit report by the State Audit
Board dated July 22nd 2000, it was stated that there were
irregularities in the use of BLBI funds amounting to Rp. 54,5 trillion from the
Rp. 106 trillion that the government had given to 10 (ten) frozen operation
banks and to 32 (thirty-two) suspended business activity banks. Furthermore, in
the final audit report dated August 5th 2000 by the State Audit
Board, it was stated that there was a state loss amounting to Rp. 138,4
trillion and Rp. 144,5 trillion of BLBI funds that had been given by the
government to bank owners, there was also a misappropriation of Rp. 84,4
trillion BLBI funds by 48 (forty-eight) beneficiary banks and approximately Rp.
34,7 trillion (25%) that had been accounted for.
METHOD
The research carried out by the author is
normative research, namely research from in action to the applicability of
normative law. This type of research is field research. Normative legal
research used in this study aims to examine the implementation or
implementation of positive legal provisions (legislation) regarding BLBI factually
in legal events that have occurred in society. This method is used to see and
ascertain whether the implementation of pre-existing laws is efficient and
effective enough to resolve the BLBI sting so that legal events in concreto
are visible in their application.
RESULTS AND
DISCUSSION
The existence of a dispute over BLBI funds
gave rise to two options or legal obligations, namely the choice between
closing a troubled bank because it was contrary to the laws and regulations or
saving the national banking system which was damaged as a result of the
monetary crisis and as an effort to restore and maintain public trust in the
national banking system and Indonesia's foreign payment system.
Efforts to recover BLBI funds could be
discerned in several legal aspects, for example in the civil law aspect, the
distribution of BLBI funds by Bank of Indonesia was the implementation of the
contents of the provisions contained in:
a. Regulations No. 13 of 1968 concerning
Central Bank;
b. Regulations No. 7 of 1992 and No. 10 of
1998 concerning Banking;
c. Civil Code;
d. Presidential Decree No. 26 concerning
Guarantees for Payment Obligations for Commercial Banks;
e. Instruction and Presidential Decree at the
Limited Cabinet Session on Economics, Finance, and Development Supervision on
September 3rd 1997;
f.
Decree of the Minister of Finance No. 26/KMK.017/1998 dated January 28th
1998 concerning Terms and Procedures for Implementing Government Guarantees for
Payment Obligations for Commercial Banks (Roubini
& Mihm, 2010).
Recently, the government in 2021 was
starting to make serious efforts again to settle the collection rights for BLBI
funds by forming a Task Force (�Satgas�). This is
stated in the Presidential Decree of the Republic of Indonesia Number 6 of 2021
concerning the Task Force for Handling State Collection Rights for BLBI Funds.
This task force was formed in the context of handling and restoring state
rights in the form of state claims for remaining state receivables from BLBI
funds and property assets. This resulted in state losses of around Rp. 110.4
trillion. The government established a Task Force (Satgas)
for Handling State Collection Rights for Bank of Indonesia Liquidity Assistance
Funds was stipulated in Presidential Decree Number 6 of 2021.
The establishment of the BLBI Task Force
has a noble purpose, namely to carry out the handling, settlement, and
restoration of state rights originating from BLBI funds effectively and
efficiently as well as fairly through legal and/or other efforts at home or
abroad, both to debtors, obligors, company owners and their heirs or other
parties who cooperated with them.
The BLBI Task Force has four tasks, namely:
1.
Develop strategic policies in the
context of accelerating the handling and recovery of state collection rights
and BLBI assets;
2.
Integrate and determine the steps
for implementing strategic policies and breakthroughs needed in the context of
accelerating the handling and recovery of state collection rights and BLBI
assets;
3.
Provide direction to implementers
in accelerating the handling and recovery of state collection rights and BLBI
assets;
4.
Monitor and evaluate the
implementation of accelerated handling and recovery of state collection rights
and BLBI assets.
The case that the Government is
currently handling is the confiscation of assets by the BLBI Task Force is :
1.
Assets Owned by Obligor Trijono Gondokusumo
�������� The land located in Jonggol Owned by Obligor Trijono Gondokusumo The assets taken are collateral for the
Settlement of Shareholder Obligations (PKPS) of PT Bank Putra Surya Perkasa.
2.
Agus Anwar's Assets
�������� The land located in Bojong Koneng covering an area of
340 hectares owned by Obligor Agus Anwar of the Bank
Indonesia Liquidity Assistance (BLBI) task force has again carried out
confiscation. This time the blbi assets that were
confiscated were land covering an area of approximately 340 hectares in Bojong Koneng Village, Babakan Madang, Bogor.
�������� This land is a collateral
belonging to BLBI obligor Agus Anwar or known as the
assets of PT Bumisuri Adilestari.
�������� The confiscation of Agus Anwar's obligor guarantee goods was carried out based
on the Deed of Shareholders' Obligation Settlement Agreement and Debt
Recognition Number 6745 / BIDKONS / 1103 dated November 21, 2003 between Agus Anwar and the National Banking Restructuring Agency (BPPN).
3.
Assets of Kaharudin Ongko
�������� Two Assets Belonging to the
Children of Kaharudin Ongko,
the confiscation was carried out for two assets of lrjanto
Ongko, who are debt insurers as well as children of Kaharudin Ongko.
�������� The Head of the BLBI Task
Force, Rionald Silaban,
said that this seizure was carried out considering that Kaharudin
Ongko as the insurer of debt to the state has not yet
completed all his obligations as an obligor of the National Commercial Bank and
Arya Panduarta Bank.
In terms of
value, Kaharudin Ongko
still has obligations as an obligor of a National Commercial Bank of Rp.
7,727,984,148,737.00 (excluding administrative fees for managing state
receivables of 10 percent), and as an obligor of Bank Arya Panduarta
of Rp. 359,435,826,603.76 (excluding administrative fees for managing state
receivables of 10 percent).
4.
Miki Santoso's Assets
The Task Force (Satgas)
for The Collection of State Rights for Liquidity Assistance of Bank Indonesia
(BLBI) or the BLBI Task Force again carried out asset confiscation. Together
with the DKI Jakarta Branch of the State Receivables Affairs Committee (PUPN),
the BLBI Task Force confiscated assets belonging to Santoso Sumali.
��������������� Director
of Law and Public Relations of the Directorate General of State Assets (DJKN)
of the Ministry of Finance (Kemenkeu) Tri Wahyuningsih Retno Mulyani said that the seizure was carried out as an effort
to settle the state collection rights of BLBI funds derived from the obligor of
Shareholders' Obligation Settlement (PKPS) of Bank Metropolitan Raya and PKPS
Bank Bahari.
��������������� The
assets taken were in the form of two plots of land covering an area of 848
square meters along with buildings on it. These confiscated assets are located
on Pilar Road, Kedoya Kav
Delta Housing Complex. G1 and G12, Kedoya Selatan
Village, Kebon Jeruk
District, West Jakarta.
��������������� The
foreclosure was carried out as an effort to collect debts from the obligors of
the Settlement of Shareholders' Obligations (PKPS) of Bank Metropolitan Raya
and PKPS of Bank Bahari. The value of the debt
amounted to IDR 524.56 billion.
5.
Assets Owned by Ulung Bursa
The Task Force on State Bill of Rights of
Bank Indonesia Liquidity Assistance Fund (Satgas
BLBI) confiscated 2 assets belonging to the obligor Ulung
Bursa who received BLBI funds in 1998.
The two assets seized from Ulung Bursa are land and houses located in Menteng, Central Jakarta and Matraman,
East Jakarta.
Meanwhile, other assets are also still in the
form of land and its buildings covering an area of 1,658 m2 located on Jalan Matraman Raya No. 71, Palmeriam
Village, Matraman District, East Jakarta.
6.
Assets Belonging to the Texmaco Group
The Bank Indonesia Liquidity Assistance Task
Force (BLBI) has again confiscated Texmaco group
guarantee assets totaling 159 plots of land in 6 regencies/cities.
This was conveyed by the Coordinating
Minister for Politics, Law, and Security (Menko
Polhukam) Mahfud Md, in a press conference, Thursday
(20/1/2022).
The 6 regencies/cities in question, including
tangerang city, Semarang city, Karawang regency, Pemalang regency, Kendal regency and Batang
regency with a total land area of 1.9 million square meters.
Previously, the BLBI task force had carried
out the first phase of the seizure on December 23, 2021, to the Texmaco group. The BLBI task force has seized 587 parcels
of collateral land from and for credit of the Texmaco
group covering an area of 4.8 million square meters.
7.
Assets belonging to Tutut Soeharto
and Tommy Soeharto
The head of the Task of Handling State
Collection Rights of Bank Indonesia Liquidity Assistance Fund (BLBI Task Force)
continues to hunt for assets once pledged by BLBI debtors and obligors in 1998.
If blbi debtors and obligors are stubborn then the
BLBI task force does not hesitate to make foreclosures.
One of the BLBI obligors that has been
confiscated by the task force is the assets of PT Timor Putera
Nasional (TPN) owned by Hutomo Mandala Putra aka
Tommy Soeharto who is the son of the Second President
Soeharto. Nili's seized
assets are approximately IDR 600 billion. Director General of State Assets of
the Ministry of Finance who also serves as The Daily Chairman of the Task Force
for Handling State Collection Rights for Bank Indonesia Liquidity Assistance
Funds (Satgas BLBI) Rionald
Silaban said, The
confiscated assets from Tommy Soeharto are in the
form of 124.6 ha of land worth Rp 600 billion located in Karawang Regency, West
Java.
The returning of BLBI funds with legal certainty and justice must
refer to strict legal rules from the government in an effort to restore state
assets. As previously explained, the settlement of BLBI funds must be conducted
in an assertive manner that would make obligors return the funds that they had
taken away and also there should be an implementation of severe sanctions for
forfeiture of the obligor's assets and confiscation of all assets generated by
crime. The legal framework to achieve this is by implementing the Money
Laundering Act, so that all parties involved or had been accommodating and
assisting also get the appropriate punishment as has been stated in the
Corruption Crime Act and the Money Laundering Act.
Based on data compiled by ICW to date, 16
BLBI corruption cases have been processed in court, but overall
the results achieved are still very disappointing. This is because 3 suspects
have been released by the court (Leonard Tanubrata, Kaharudin Ongko and Leo Ardiyanto). Of the 13 suspects who have been sentenced to
prison by judges at the first level (PN), Appeal (PT) or Cassation (MA), it
turned out that 6 defendants were sentenced to under 18 months and 2 defendants
were sentenced to 4 and 8 years. The remaining 5 defendants were sentenced to
life and 20 years in prison but the verdict was handed down without the
defendant present (in absentia). The following is a table regarding corruption
cases of recipients of BLBI funds that were processed in court compiled by ICW.
To produce the
appropriate legal construction in returning state assets in a just manner, the
government should issue strict rules against the perpetrators of these crimes,
not only through a Presidential Decree / Presidential Instruction but if
necessary special regulations should be constructed that can accommodate law
enforcement officials in pursuing irresponsible obligors. As the theory of
development law explains that the law must accommodate the wider public in
order to create justice in society and can provide a deterrent effect to
criminal acts who misappropriated BLBI funds because the policies taken today
are not yet strong in upholding justice to all Indonesian people and due to the
effects of from the misappropriation of BLBI funds, it is undeniable that
Indonesia experiences a deficit every year (Arifin, 2018).
A.
Liquidity Dispute Resolution Efforts in Several Countries
In modern financial history, banking crises
have occurred one after another in various regions and countries of the world.
According to an IMF study (1997) in the last fifteen years there are about 30
countries that have carried out systemic banking restructuring programs (Kawai, 2005)
��������������� Experience in
various countries shows that systemic restructuring of banking is a long
process (multi-year) and its resolution often intersects with social and
political dimensions. This is understandable given that the systemic banking
crisis has had a far-reaching negative impact on an economy.
��������������� Broadly
speaking, the banking settlement strategy adopted in various countries can be
seen in several aspects, namely:
1.
The Application of Skim Blanket Guarantee
In general, the definition of blanket
guarantee in the international world is an instrument of emergency action
in the form of providing payment guarantees for the obligations of
non-performing banks both to depositors and their creditors. The enactment of
this instrument is usually temporarily until the banking systemic crisis is
restored and the budgetary burden will be borne by the Government through a
supervisory authority or institution specially established or appointed to
carry out the restructuring and restructuring of the banking system may be
reduced or terminated.
In some countries such as Sweden,
Turkey, Finland, Thailand, and Korea, the application of blanket guarantee shemes to both depositors and creditors is a fairly
successful part of stabilizing the financial system as a whole and high
interest rate penalties or forms of non-monetary penalties such as management
replacement, control of bank assets/ownership, and so on, namely with the aim
of how to stabilize the financial system.��
The strategy implemented here aims to alleviate the crisis, restore the
trust of depositors, and protect the national payment system as soon as
possible.
2.
Financial Restructuring
How to solve the problem of
solvency (stock) of banks. After the crisis can be controlled, banking
restructuring is directed to restore the health of the bank's financial
position through financial restructuring. The problem that will be faced
is how the impact of the instruments used on monetary and fiscal conditions,
the distribution of losses charged to the government, bank owners, creditors,
and depositors, and the effectiveness of the return of non-performing loans (loan recovery).
3.
How to encourage banks to return to healthy operations. As mentioned
earlier, the restructuring of the bank's financial position will be incomplete
if it is not followed by an improvement in the external environment in which
the banking operates (operational restructuring). Therefore, the banking
restructuring strategy in the operational restructuring stage is directed at
addressing the existing weaknesses in the accounting system, the configuration
of the banking sector and the legal framework that will affect the operational
movement of the banking industry in the future. In practice, the measures taken
in many countries are related to efforts to create a banking system that can
encourage market discipline through
competition and firm exit-policies.
In terms of banking authorities, this means that it will also involve improving
aspects of the legal framework and banking supervision.
B.
BLBI Refund Legal Construction
The provision of BLBI funds occurred during a
time when Indonesia experienced a monetary crisis from 1997 to 1998. Many efforts
have been made by the Government in returning BLBI funds, one of which is
through criminal settlement mechanisms in court and outside the court. �The legal construction taken by the
Government in seeking the return of BLBI funds has been widely pursued, with
the MSAA or MRNIA� method including the R
& D clauses implemented in Presidential Instruction No. 8 of 2002
concerning the Provision of Legal Certainty Guarantees to Debtors Who Have
Completed Their Obligations or Legal Actions to Debtors Who Do Not Settle Their
Obligations Based on Settlement of Shareholder Obligations so that the issuance
of many SKL� (Certificate of
Payment)� abused by obligors. The weak
regulation was eventually misused by obligors.
Lnumbers that can be taken in the completion of BLBI
according to the MSAA mechanism: (Apriadi et
al., 2016)
1.
The bank's PSP takes over the obligation on loans to related parties
(BMPK), so that loans from banks to related parties switch to loans to bank
PSPs;
2.
The bank transfers loans that violate the BMPK (afiliated
loans to related parties) to BPPN. And upon this transfer, BPPNI's Finance
Ministry paid by issuing Government bonds. After this transfer, BPPN has the
status of a creditor of the bank's PSP;
3.
The psp bank (now the debtor of BPPN) handed over
its assets (in the form of shares) to AVIHolding
Company with a transfer agreement. Upon the handover of these assets, the
bank's PSP receives payment in the form of Promissory Notes which can be
converted into Convertible Bonds, which at any time can be converted into validarns with AVIHolding
Company;
4.
The bank's PSP submits the Promissory Notes received from AVIHolding Company to BPPN as payment for the obligations
owed;
5.
At the time of the handover of assets by the bank's PSP as outlined in letter c above, the BPPN consultant
conducts research on the assets submitted regarding their conformity with the
Disclosure, Reprensentation & Warranties stated
by the bank's PSP on these assets. Disclosure is a statement regarding the
condition of the assets submitted, which is made by the bank's PSP prior to the
handover of assets and attached to
the MSAA. Representation and Warranties is a statement made by the bank's PSP
that guarantees that there is no lawsuit from a third party over the assets
submitted and if there is a lawsuit, the surrendering party (PSP bank) will
replace the assets with other assets or bear the lawsuit. As a guarantee of the
correctness of the Disclosure, Representation &
Warranties, the bank's PSP hands over assets other than the assets used to pay
the obligations, to an independent third party. For example, BDNI handed over
assets to Chase Manhattan Bank Singapore. Assets surrendered to guarantee the correctness of
Disclosure, Representation & Warranties are referred to as Holdback Assets
or Escrow. Disbursement of these assets can only be done at the request of BPPN;
6.
After the assets are handed over to AV and BPPN through AV/Holding Company
accepts the surrender (closing), it means that the parties have carried out
their obligations and received their rights. Thus, the bank's PPSP is
considered to have completed its obligations completely (settlement);
7.
The MSAA also regulates release and discharge (R & D). R & D can be
issued during the settlement process or after the completion process ends
(closing). Nevertheless, the R & D that can be equated with the receipt is
the one whose amount corresponds to the amount received as payment. That is, if
the amount paid is only 30% then R & D also only mentions the figure of
30%.
C.
BLBI Dispute Resolution Efforts through Deferred Prosecution Agreement (DPA) �in Indonesia as
an Alternative
� In
the provisions of Law Number 7 of 2006 which is a ratification of UNCAC (United
Nations Convention Against Corruption) where article 26 paragraph (4) states
that the state party is also obliged to strive for the responsible corporation
to be subject to effective, proportional and prohibitive criminal or
non-criminal sanctions, including financial sanctions. If non-criminal
sanctions are effectively and proprionally considered
more effective according to law enforcement and judges then the use of criminal
law can be considered and set aside (Suhariyanto, 2016).
The absence of DPA arrangements in
Indonesia needs to be considered in resolving economic crimes committed by
corporations, because until now the settlement of economic crimes committed by
corporations with the current law enforcement model has not met justice, legal
certainty and legal expediency are still carried out and reduce the potential
for conflicts of interest. On the other hand, the inequality of costs and benefits in the seizure of
assets is large, where the cost of dispossessing assets is greater than the
assets to be seized.
To further focus on the scope that
will be discussed, the formulation of the proposed problem, namely the provisions of Schedule 17 of the Crime
and Courts Act 2013 against criminal acts committed by corporations and the
opportunity for the application of DPA in the Indonesian Legal System.
Indonesia in handling corruption
crimes committed by corporations based on Law Number 31 of 1999 concerning the
Eradication of Corruption Crimes as amended by Law Number 20 of 2001 concerning
Amendments to Law Number 31 of 1999 concerning the Eradication of Corruption
Crimes (hereinafter referred to as the PTPK Law). In Article 2, Article 3,
Article 20 of the PTPK Law, it is recognized that corporations as legal subjects
who have criminal responsibility in corruption crimes.
Looking at other countries such as
the UK handling corruption crimes committed by corporations based on Schedule 17 of the Crime and Courts Act 2013 (hereinafter
referred to as Schedule 17 of C&C Act 2013), where the policy used in
dealing with corruption crimes committed by corporations uses the DPA (Deffered Prosecution Agreement) policy.
Schedule 17 of the Crime and Courst Act 2013 provides for the provisions of the Deffered Prosecution Agreement (DPA). The DPA is an
agreement entered into under the supervision of a judge, made by the British
public prosecutor (JPU) with the corporation to be prosecuted. The agreement
contains the permissibility of a temporary termination of prosecution with a specified
period of time in order for a corporation to meet certain conditions.
The criminal acts that the DPA can
apply are only certain criminal offenses, namely fraud, tax evasion, theft,
forgery of accounting, bribery and other economic crimes contained in the
provisions of the Theft Act 1968, Customs and Excise Management Act 1979,
Forgery and Counterfeiting Act 1981, Section 450 of The Companies Act 1985,
Section 72 of the Value Added Tax Act 1994,�
Financial Services and Markets Act 2000, Proceeds of Crime Act 2002,
Companies Act 2006, Fraud Act 2006, Bribery Act 2010, Regulations 45 of the
Money Laundering Regulations 2007. The DPA can only be applied to corporations
not to individuals.
The DPA is not implemented in
order to punish as severely as possible or in other words kill the corporation,
if it uses this principle it will result in the closure of the corporation,
causing unemployment and a decrease in the company's investment.
In order for the Deferred
Prosecution Agreement to be implemented, there are two stages that must be met
in order for a case to be applied deferred prosecution agreement, these stages
must be considered by the prosecutor in determining whether or not a case is
implemented deffered prosecution agreement. The
stages are: (Januarsyah et al., 2021)
1.
Evidentiary Stage In this stage the prosecutor proves whether what is the
evidence that a criminal act has been committed, but if there is no concrete
evidence, it can also be considered the existence of an allegation that has
reasonable grounds to say that the corporation has committed a criminal act and
if an investigation is carried out it will find evidence of the allegations.
2.
The Public Interest Stage The public interest should be considered by
prosecutors in determining whether the Deferred Prosecution Agreement can be
implemented. The public interest in question usually relates to the seriousness
of the crimes that have been committed, the mistakes of the corporation, and
the magnitude of the damage caused to the victim.
The determination of whether or
not the DPA is appropriate to apply to the company is charged to the
objectivity of the prosecutor himself so that the basis for consideration
differs from one case to another.
The public interest means to consider the
seriousness of the evil deeds that inflicted harm on the victim, As in the case of sfo v. rolls
royce10 one of the considerations of the public interest in the case is that
the crimes that the roll royce has committed have
caused a fundamental harm to the intergrity and
confidence of the market. If the stage is considered to have been met, then the
prosecutor may invite the corporation to carry out the DPA negotiations. The
negotiations carried out are to determine what conditions the corporation must
meet within a certain period of time. These conditions are described in article
5 which reads as follows:
1.
Paying fines;
2.
The necessity to pay compensation to the victim;
3.
Donate a certain amount of money to a charity or other designated third
party;
4.
the necessity to return any profit resulting from a criminal offense;
5.
the necessity to improve company policies and employee training so that
these crimes do not occur again;
6.
the necessity to cooperate in investigations;
7.
paying the costs of the case.
These conditions may be imposed
more than one depending on the negotiations between the prosecutor and the
corporation. These predetermined and agreed conditions must later be carried
out and fulfilled by the corporation within a certain period of time which has
also been agreed upon.
1.
DPA Implementation in Indonesia a. DPA Implementation Opportunities
DPA as a tool in law enforcement
in the UK, namely prosecutors. The DPA has successfully ensnared several
corporations, namely Standard Bank, XYZ Limited, Tesco Plc and Roll Royce. Dpa. For this reason, it can explain the opportunity to
implement DPA in Indonesia, if law enforcement and legislators intend to
implement it, several things can be stated that explain the relationship
between DPA and the Indonesian legal system. Some of these things are as
follows:
Elements of corporate misconduct
In the UK corporations have been regarded as legal subjects who have had
criminal liability. It is seen in one of the laws, namely the Bribery Act 2010.
On "Article 7" of the Bribery
Act it reads:
�A relevant commercial organisation
(�C�) is guilty of an offence under this section if a person (�A�) associated
with C bribes another person intending:(a) to obtain or retain business for C,
or (b) to obtain or retain an advantage in the conduct of business for C.� �
Prior to this provision, in
Inggis the corporation as a subject of criminal law
was indeed nothing new, namely in the case of R v Birmingham & Glocester Railway Co.12 To
assume the guilt of a British corporation using the theory of identification.
This doctrine assumes that all legal or illegal acts committed by high-level managers or directors are
identified as corporate acts (Sjahdeini, 2006).
Denning LJ, in the case of H.L Bolton Engineering Co. Ltd v T. J.
Graham & Sons Ltd. �explains the
theory of identification likens an enterprise to a human body, where in full he
expresses: (Sjahdeini, 2006)
�A company may in many ways be likende to a human
body. It has a brain and nerve centre which controls
what it does. It also has hands which hold the tool and act in accordance with
directions from the centre. Some of the people in the
company are mere servants and agents who are nothing more than hands to do the
work and cannot be said to represent the mind or will. Others are directors and
managers who represent the directing mind and will of the company, and control
what it does. The state of mind of these managers is the state of mind of the
company and is treated by the law as such.�
Indonesia recognizes corporations
as owners of criminal liability in corruption crimes, namely based on the
provisions of Article 20 of the PTPK Law. It is also added in the Passage of
the PTPK Law, where it is stated that in the law the corporation as the subject
of corruption crimes that can be subject to sanctions and in the explanation of
article 20 (1) it is stated that what is meant by "management" is a
corporate organ that carries out the management of the corporation concerned in
accordance with the articles of association, including those who in reality
have the authority and participate in deciding corporate policies that can be
qualified� as a criminal offence of
corruption.
The provisions of the UUPTPK
regulate the scope of criminal acts that can be held accountable to corporations.
These criminal acts are bribery, unlawful acts that can harm the country's
finances or economy, fraudulent acts, giving compensation and other criminal
acts that are considered as criminal acts of corruption. In the history of
Indonesian laws and regulations, criminal corporate liability for criminal acts
committed, known as three corporate criminal liability systems, namely:
It is the management of the corporation as
the maker and the management who is responsible (the development of corporate
responsibility in the first stage);
1. The corporation as the maker but the
management is responsible (the development of corporate liability in the second
stage)
2. Corporations as makers and corporations must
also be responsible (the development of corporate liability in the third stage)
Another opinion expressed by Sutan Remy Sjahdeini,
namely adding the concept of management and corporate accountability both as
perpetrators of criminal acts and both must also bear criminal liability. On
the concept of management and corporate accountability, Sutan Remi Sjahdeini argued (Sutan Remy
Sjahdeini, 2018)
3. If only the administrator is burdened with
criminal liability, it becomes unfair to the people who have suffered losses
because the management in carrying out their actions is for and on behalf of
the corporation and is intended to provide benefits or avoid reducing financial
losses for the corporation.
4. If the person who is burdened with criminal
liability is only the corporation while the administrator does not have to bear
the responsibility, then the administrator will "throw stones in hiding
hands".
5. The imposition of liability to the
corporation is only possible in a vicarious manner because the corporation is
unlikely to be able to do a legal act on its own.
Indonesian law actually recognizes
corporate criminal liability. However, in the criminal justice process against
BLBI cases based on Law Number 3 of 1971 concerning the Eradication of
Corruption, it is not expressly regulated regarding corporate criminal
liability, so that in the case of BLBI, all perpetrators convicted are the
administrators of the corporation, using the construction of individual
criminal responsibility. Although efforts to resolve BLBI cases are also
carried out using settlement methods other than criminal, the public still
hopes that the criminal justice process will take precedence. The absence of a
positive law governing this matter makes the BLBI case unable to be resolved by
focusing on the punishment of corporations that have legal relations with the
State (Bank Indonesia) in providing BLBI. Meanwhile, the countries of France,
Finland, Norway and Australia, already have provisions for corporate criminal
liability in their respective criminal laws, thus further clarifying the criminal
liability of corporations.
In practice, the settlement of
BLBI cases is carried out by means of litigation and non-litigation. For
settlement with criminal justice proceedings, the construction of indictments
is based on the individual criminal liability of the corporate management,
shareholders and persons who play an important role in relation to the BLBI
that has been granted by Bank Indonesia against the banking corporation.
CONCLUSION
So that legal reconstruction is
needed to have effective rules in and become a grand strategy that has full authority in implementing banking
restructuring programs with financial restructuring �efforts� by "reviving" previously
inactivated institutions such as BPPN which has considerable experience in
handling BLBI cases by handling the AMU method and existing institutions
handling� Banking restructuring has been
relatively large, starting from Bank Indonesia, to the Ministry of Finance. The
reactivation of these Institutions must have political support, for the
establishment of the law itself. As explained in the previous chapter, the
attachment between law and politics greatly affects the implementation of the
law itself, so that the need for continuous law and politics in order to create
a clear vision and mission about the direction of goals in law enforcement BLBI
that is legally effective and fair, because often policies undergo sudden
changes that result in slowing down the smooth running of the program itself.
Therefore, new or existing institutions are needed to be reactivated in
handling restructuring, starting from Bank Indonesia, the Ministry of Finance, BPPN,
Bappenas, but the obstacle in this implementation is
the lack of political support, to the establishment of the law itself. As
explained in the previous chapter, the attachment between law and politics
greatly affects the implementation of the law itself, so that the need for
continuous law and politics in order to create a clear vision and mission about
the direction of goals in BLBI law enforcement, because often policies undergo
sudden changes, resulting in slowing down the smooth running of the program
itself.�
Efforts to implement the DPA system in Indonesia in resolving at least
can be applied to resolving BLBI disputes, as stated in Corporate
Responsibility in Article 20 paragraph (1) of Ri Law No. 20 of 2001 concerning
Amendments to Law No. 31 of 1999 concerning the Eradication of Corruption
Crimes. Reflecting on this, the BLBI case that can be resolved using the DPA
method is not only for individuals but can be carried out corporate punishment,
but Indonesia does not yet have special provisions regarding corporate criminal
liability in criminal law (the Criminal Code does not recognize the term
corporation)
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