The Hard Road To A Clean And Profitable Danantara
Established through amendment to the State-Owned Enterprises Law (Law No. 1), Danantara's creation has sparked significant discussion, often drawing comparisons with regional giants such as Singapore's Temasek Holdings and Malaysia's Khazanah Nasional.
Yet, a critical aspect often overlooked is the profound disparity in legal frameworks that govern these entities and the implications for Indonesian state-owned enterprises (SOEs).
Indonesia's legal framework for managing SOEs has traditionally been rigid and risk-averse. Under the former SOE Law, boards of directors were perpetually at dual risks: navigating business losses and evading potential corruption charges.
This ambiguity often stemmed from the blurred legal lines that failed to distinguish between genuine business losses and misappropriation of public funds.
Consequently, SOEs were involved in a stringent compliance framework that stifled innovation, promoted bureaucratic conservatism and hindered the development of a dynamic and competitive economy.
The reformed SOE Law attempts to mitigate these challenges by reclassifying business losses as corporate losses instead of losses to state finances, significantly reducing the criminal liability under Indonesia's principal anti-corruption law (UU Tipikor).
However, a more detailed review of UU Tipikor-particularly Articles 2 and 3-suggests that corruption may still be conducted based on two criteria: losses to state finances (keuangan negara) and harm to the state economy (perekonomian negara).
While the new SOE Law narrows the risk associated with state financial losses, the interpretation of“harm to the state economy” remains nebulous and broad.
Unlike financial losses, which are measurable and direct, harm to the state economy is a much broader notion. It could be interpreted to include impacts on the country's investment climate, economic system stability or other material adverse effects.
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