In a case or Citizen Lawsuit or Actio Popularis in the Central Jakarta District Court, the Plaintiffs argue that as citizens of the Republic of Indonesia, they have a legal standing and the authority or competence to file a lawsuit against several parties, including the Government of the Republic of Indonesia, a State-Owned Enterprise (“SOE”), a subsidiary of a State-Owned Enterprise and a private party domiciled abroad, because the State suffers losses from an alleged unlawful act related to changes in the composition of shareholders in the SOE’s subsidiary. Therefore, in the previously mentioned case, the Defendant presented an expert before the court to explain that the definition of state finance according to the Law on State Finances is rights and obligations that can be valued in money and everything related to these rights and obligations stated as state property, whereas Article 23 Paragraph 1 of the 1945 Constitution of the Republic of Indonesia states that the form of state finances is in the State Budget. Furthermore, according to Article 4 paragraph 1 and its elucidation of Law 19 of 2003 concerning SOEs, SOE assets and finances are State’s separated assets. This has also been strengthened by the Decision of the Constitutional Court No. 62 of 2013 which states that SOEs are not subject to and does not use methods of direct ownership or State Budget Law, instead they use Good Corporate Governance.
Based on Article 10 paragraph (1) Law No. 15 of 2006 concerning Audit Board in conjunction with Government Regulation No. 60 of 2008 in conjunction with Article 20 Law No. 30 of 2014 in conjunction with Supreme Court Regulation No. 5 of 2015, parties entitled to conduct investigative audit is the Audit Board and the Government Internal Oversight Apparatus, namely the Financial and Development Supervisory Agency, the inspectorate general, the ministry’s inspectorate of agency, the supreme court supervisory agency, the supervisory agency at the state agency, or the provincial inspectorate. Private parties or institutions do not have the authority to determine state losses. Therefore, if there is an institution or private party that does that, then their validity and legality cannot be used in the decision-making process.
Furthermore, experts explained that losses could arise due to the unlawful act or negligence. For example subsidies can be considered as state loss because there is no state benefit. However such loss is contained in the State Budget Law on the basis that the State is responsible for giving its rights to the citizen through taxes, hence tax revenues should be returned to the citizen in the form of infrastructure, since the deficiency is contained and provided a legal basis in the State Budget so it does not constitute as state loss. Therefore, Citizens do not have the authority to file a lawsuit for state losses because such authority has been given to the Minister of Finance and the Minister of State-Owned Enterprises as state representatives in state finances. Furthermore, the functions of the House of Representatives are legislation, budgeting, and supervision. As for the Special Committee, which is part of the investigation, is very political in nature and cannot be used as evidence of a violation of the law. Furthermore, this matter has not yet come to the opinion of the House of Representatives, while the flow of supervision of the House of Representatives in a protocol manner is directly conveyed to the Minister of State-Owned Enterprises and then the Minister of State-Owned Enterprises with his public or private authority follows up on the results of the House of Representatives’ supervision.
Based on the explanation above, the expert is on the opinion that Citizens do not have the authority to file a Citizen Lawsuit or Actio Popularis in court regarding alleged state losses.
Hope it is useful,
FREDRIK J. PINAKUNARY LAW OFFICES