[Unpad.ac.id, 2/05/2016] Currently, there are still differences of understanding between practitioners and academics regarding capital ownership of State Owned Enterprises (SOEs). In practice, SOEs capital is still seen as the country’s wealth. Whereas SOE is Limited Company who possesses capital separate from the state’s.
Lecturer of Faculty of Law Unpad, Dr. Isis Ikhwansyah, S.H., M.H., CN. revealed that in the research he conducted in 2015 and then to a number of commercial courts in five cities in Indonesia, it is known that many legal practitioners interpreted the capital of SOEs as the state’s wealth.
“Almost all the judges in commercial court I studied stated that SOE capital is state assets,” said Dr. Isis.
These differences, according to Dr. Isis, were caused by disharmony in addressing the SOE as an independent legal entity, between the legal regime of private and public law regime. Of public law regime, the State Finance Law and the Law on State Treasury stated that the SOE capital was included in the state’s wealth.
“But from private law perspective, public or private legal entities conducting business should be subject to the legal regime of the business,” he said.
Furthermore, Dr. Isis explained that during a Supreme Court meeting, it was agreed that the SOEs capital was not a state’s wealth, but the capital of the Limited Company. It is also stated in the letter of MA No. 4 in 2014. However, this letter did not have a binding force for the judges.
“It could be seen in my interview at the commercial court. Judges handling the matter were insistent that SOE’s capital is the capital of the state,” he said.
According to the man born in Bandung on May 21, 1960, SOE is a profit-oriented business unit. Thus, the state should be able to run the company in a professional manner. But what happened nowadays is that the state has not been given SOE full freedom in doing business in a professional manner.
SOE management is still not free and overshadowed by fear because they thought they were managing state money. If they were in unfavorable conditions and harming the company, then they could be considered detrimental to the country’s financial and charged of corruption even if the decisions were made as professional business decision.
“Burdened by responsibility of running state finances would cause them to be too careful in conducting business,” said Dr. Isis, an expert in Corporate Law.
Dr. Isis quoted Prof. Nindyo Pramono from Gadjah Mada University, who said that the SOE Business is like a bird that was released, but still has its tail held down.
“So the bird can not soar free. If it was let to be, it can fly and try to find their own food. This is a half-hearted action, “said this Chief Master of Notary FH Unpad.
SOE as Limited Company should be subject to the Limited Liability Company Act, stating that SOE is an independent legal entity and has a capital separated from their owners. If SOEs capital were still claimed to be the state’s wealth, the company would undergo difficulty to grow.
“For example, SOE was given freedom in accordance with the principles of business law, then the profits later return to the country, because then the dividend was paid to be included in the budget,” he said.
Dr. Isis also suggested that this legal decision should be guided by the doctrine of the business judgment rule. Based on the business judgment rule it was stated that the decision of a director was long regarded as a business decision, acting in good faith. There would be no conflict of interest, and it only aimed to bring progress to the company, and then it can be avoid allegations of criminal conduct.
“So SOE should be given the freedom to run the business independently, guided by the doctrine of the business judgment rule. The business decision to the director, according to the doctrine, was not to be judged as right or wrong act. The judge also must consult with the experts in order to judge the director’s decision, “said the man who once served as Head of Learning and Student Affairs Unpad.
Yet it was not to say that SOEs management could not be exposed to crime. Dr. Isis said, the SEOs still could be exposed to crime if there was misappropriation of funds, or failure to deposit dividends into the state budget.
“But if they are running its business, they are still in the right track. Let them flourished. By the time they were doing business, there was a failure risk that must be borne. Yet we should not take the first failure as a sign of corruption; it would prevent them from doing business freely, “he said.*
Reported by Artanti Hendriyana / eh
