Buku The Shareholder Settlement Program

• Judul Buku: The Shareholder Settlement Program: A Pragmatic Resolution to confront a Systemic Banking Crises in view of the Dysfunctional Legal System and Tradition of the Republic of Indonesia
  
• Penulis: Taufik Mappaenre Maroef
• Penerbit: Leiden: Taufik Mappaenre Maroef, ©2010
• Bahasa: Inggris
• ISBN: 978-602-96367-0-3

Sinopsis Buku The Shareholder Settlement Program: A Pragmatic Resolution to confront a Systemic Banking Crises in view of the Dysfunctional Legal System and
Tradition of the Republic of Indonesia

It is not the intention of this study to linger on the legal matters that are not the main topic of this PhD dissertation, let alone to review and comment on the relevant judicial proceedings and reasoning.

However, it would be interesting to know if there is any intention to undertake a separate study on the numerous legal cases that were handled by/involved IBRA. A deeper and more comprehensive study on the legal matters outside of the Shareholder Settlement Program would provide the government with a mapping of these legal cases.

The mapping could then be useful in an effort to formulate the most suitable resolution for each of the legal cases, because any improper handling of these cases would certainly undermine the interest of the State.

One thing is for certain, there are still many unresolved legal matters and/or judicial proceedings involving IBRA that must be dealt with by the present administration.

Nevertheless, based on the aforesaid discussion regarding the sporadic reviews and analyses about specific court decisions that were handled by/involved IBRA, it is fair to conclude that the interaction between IBRA and the judiciary and/or the judicial system has been imprecise.

At the time, the judiciary and the judicial system were in the process of institutional and behavioral reforms, and IBRA’s existence was a lex specialis derogat lex generali. It is difficult to summarize whether a judicial proceeding and judgment, in which IBRA was a party, was influenced more by the sentiment of reform rather than by IBRA’s idiosyncrasy but one would always have the feeling that the two sources of influence existed in the aforesaid court decisions.

During 1998-2004, the judiciary and the judicial system in Indonesia were experiencing a most significant transformation from an authoritarian structure of government to a relatively liberal democracy, in which judiciary authority had been given more judicial independence both institutionally and in a behavioral sense.

Since 2004, the Supreme Court has been de facto and de jure in charge of the judicial and non-judicial aspects of the judiciary authority and the court system, particularly in recognition of the never-ending effort to achieve and maintain the kind of judicial independence as mandated by the Constitution.

Despite the imprecise standpoint of the judiciary and the mixed signals that were generated by many transactional legal matters that involved IBRA, the judiciary seemed to understand the extraordinary circumstances that surrounding IBRA’s establishment, namely the emergency situation and the occasional demand for the government to implement special rules and regulations to confront and overcome the multidimensional crisis, as well as to tolerate the limited use of IBRA’s extra-judicial powers in the implementation of its task and function as the agent of economic recovery.

The Supreme Court’s standpoint to refuse the request as submitted to undertake a judicial review against PP-17 reflected the Court’s general understanding of the background reasoning behind IBRA’s establishment, and yet the Supreme Court’s Decision could not provide any guaranty that the judiciary would continue to be in favor of IBRA and PP-17.

For instance, the judiciary standpoint in several bankruptcy proceedings that involved IBRA’s interests were more reflective of the struggle among the judiciaries and of the judicial system to adjust to the newly- enacted judicial proceedings, than to accommodate the important mission IBRA carried out to recover the state funds that had been injected into the failing banking system and/or to minimize the costs of the crisis.

The other legal cases and the relevant judiciary standpoints that have been discussed to a certain extent represented the overall need to overhaul the judicial system in its entirety, both in terms of its institutional infrastructure and its regulatory framework, which would be beyond the coverage of this study.

IBRA’s existence and the special regulatory framework thereof had encouraged the judiciary and the judicial system to be more pragmatic in the handling of many actual legal matters that involved IBRA, as well as to prevent the judicial system and its personnel from being dragged along elusively by the euphoric demand for total reform in all sectors that occurred during 1998-2000.

While the executive and the legislative branches were experiencing significant overhauls during the said period, the judicative power was expected to survive the unprecedented tempestuous climate and to stay on the right track.

The judiciary was expected to support the government’s policy decision and its implementation as part of the efforts to confront and overcome the multidimensional crisis despite the fact that at the same time the judiciary was enjoying its new status of being independent especially of the executive power.

In general, the judiciary was of the opinion that the effort to revitalize the banking system and the national economy was far more important for the nation and the state of Indonesia, than the urge among the judiciaries to enjoy the new freedom the Supreme Court and the court system had bestowed upon them since the legislative amendments in 1999 and 2004.

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