Sinar Harapan January 07, 2005
Legal Practitioner in Jakarta
National Bank Restructuring Agency (IBRA) has extended his tenure. These expressions may be provocative. In fact, thus is standing the law. This was contrary to the public impression that spread in the media at the end of February and then a busy discussing the "dissolution" of IBRA.
Public affirmation of many fooled by paragraph 1 of Article 1 of Presidential Decree No.15/2004 regarding Task Termination and Liquidation stating that IBRA declared dissolved as of February 27, 2004. In fact, if we listen to the affirmation of Article 1 paragraph 3 and 4 juncto Article 2 of Presidential Decree No. 15/2004, essentially he extended his duty to 30 April 2004. The task was particularly associated with the completion of four things namely liquidate Frozen-Bank Operations / Business Activities of Frozen-Bank, obligations of shareholders, audit and transactions that have occurred prior to February 27, 2004. That is, the institutional IBRA has not disbanded, but only reduce and eliminate other tasks besides four IBRA it.
Previously, the agency was responsible to do the administration of government guarantees provided to commercial banks as mentioned in the Presidential Decree No26/1998 and control, coach and effort to restructure, including restructuring of banks by Bank Indonesia (BI) declared healthy and necessary legal action in order to restructure bank (Article 2 of Presidential Decree. 27/1998 on Establishment of IBRA).
In connection with banking restructuring program, (formerly) IBRA has duties to recover banks stated and delivered by BI, settle the bank's assets, both physical assets and obligations of the debtor through the Asset Management Unit (Asset Management Unit), and seek a refund of state has been distributed to the bank - bank through the settlement assets in a restructuring (Article 3 paragraph 1 of Government Regulation (PP) No. 17/1998 on IBRA, as amended by Regulation No. 47/2001-PP IBRA).
Article 6 of paragraph 1 of Presidential Decree. 15/2004 confirmed with IBRA for the task and / or dissolution of IBRA, all his wealth into state property managed by the Ministry of Finance (Finance). Clearly, this is confuse construction. Because there are doubts about the exact time when IBRA no longer wealth. Apparently, the president does not understand this.
Because, there are 63-days period, or approximately two months between the end of IBRA's task in certain areas as referred to Decree 15/2004 (February 27, 2004) with the agency's time frame stated dispersed (April 30, 2004). This is not the time for a moment that many faced IBRA conundrum. In the end, this will cause a serious legal problem.
Task renewal of IBRA has legal consequences for the validity of legal acts which Clearance Team has been formed by presidential decree No.16/2004 on the establishment of IBRA clearance team led by the Ministry of Finance, especially, related to the authority to represent completion of IBRA in business assets (wealth IBRA). Clearance Team has duties in charge of handling the problem filing, the state property-related cases in the judiciary, legal issues, financial administration, and assistance in the framework of implementation of audit IBRA clearance.
To carry out its duties, Clearance Teams should be assisted by the Working Group (KK), which was formed as the head of Team Finance settlement. One of the tasks of these families are handling the Working Group on Legal Issues (KKPMH) which acts as the power minister (as head of Team clearance) for the proceedings in the courts.
More Precisely Regulated by PP (Government Regulation)
Yet, should the existence of IBRA is extended to 30 April 2004 (by narrowing its function), with consequences for the local authorities for legal action for and in behalf of IBRA associated with wealth of IBRA that is an organ regulated by PP IBRA. This is where the importance of assertiveness of Presidential Decree No.15/2004 to decide when property assets under IBRA be managed by the Ministry of Finance.
Because, as long as the agency still standing, in principle the authority to represent good IBRA outside the court and in the courts (including the dispute in court relating to the wealth IBRA) is an organ regulated in the PP IBRA namely IBRA chairman (Article 5, paragraph 4 PP IBRA) .
Therefore, the validity of KKPMH acting as proxy of the Minister of Finance for the proceedings in the courts in the context of settlement for the benefit of potential wealth of IBRA has no strong basis for the authorities in court. Consequently, his opponent will easily win the legal dispute in court.
Therefore, the legal basis through Clearance Team to act KKPMH deal IBRA property disputes is weak. In fact, position, duties, and authority in the Ministry of Finance as stipulated PP IBRA was transferred to the Minister of State Owned Enterprises (PP No. 63/2001).
If the government authorities intend to cut existing organs of IBRA (in certain cases) because of perceived IBRA's task has been reduced, it is more appropriate if it should be arranged in PP IBRA (not by decree of a lower level than the PP in the hierarchy of legislation).
Clearly, the principle of legal construction of the extension of duty with camouflage IBRA "Liquidation" is better to have a political purpose with a weak legal footing. Prepare to reap KKPMH defeat in court as has been experienced during this IBRA. Good government is willing to learn from previous experiences. Construction law will affect litigations victory.