Undang-Undang No. 1 Tahun 2023 tentang Kitab Undang-Undang Hukum Pidana (“KUHP Baru”) membawa pembaruan positif terhadap kebijakan pidana mati di Indonesia, antara lain masa percobaan dalam vonis pidana mati dan komutasi bagi terpidana mati yang tidak dieksekusi. Sayangnya, perubahan yang patut diapresiasi ini malah terancam karena masih adanya kekosongan hukum yang luput dari KUHP Baru, yakni bagaimana perubahan-perubahan ini akan berlaku bagi mereka yang sudah maupun akan divonis pidana mati berdasarkan Wetboek van Strafrecht (WvS). Kekosongan hukum tersebut melahirkan kebutuhan akan kebijakan perantara sebagai jambatan kepastian hukum terhadap kebijakan pidana mati yang diatur dalam KUHP Baru. Seiring dengan hal tersebut, LSM Law Firm menyelenggarakan Seminar Nasional pada 27 Juni 2023 sebagai wadah untuk menelisik lebih jauh kekosongan hukum dalam KUHP Baru dan urgensi perancangan kebijakan perantara sebagai salah satu solusinya.

Seminar Nasional yang berjudul “Urgensi Kebijakan Perantara Pidana Mati guna Menyongsong Keberlakuan KUHP di Tahun 2026” ini turut menghadirkan perwakilan dari Kementerian Hukum dan Hak Asasi Manusia serta Hakim Agung dari Kamar Pidana Mahkamah Agung untuk menanggapi kertas kebijakan yang telah dirancang oleh LSM Law Firm. Kertas kebijakan ini merupakan hasil diskusi terkait kebijakan pidana mati pada KUHP Baru bersama dengan para akademisi dan masyarakat sipil dalam rangkaian focus group discussion yang LSM Law Firm selenggarakan sebelumnya.

Tidak hanya mengupas kekosongan hukum pada kebijakan pidana mati dalam KUHP Baru, kertas kebijakan bertajuk “Jangan Eksekusi sampai Semuanya Pasti: Menilik Masa Depan Kebijakan Pidana Mati dalam KUHP Baru” ini menggarisbawahi gentingnya perancangan dan pengesahan kebijakan perantara aturan pidana mati sebelum KUHP Baru berlaku di tahun 2026. Terdapat juga beberapa usulan lainnya yang ditujukan kepada Pemerintah maupun Mahkamah Agung sebagai rekomendasi kebijakan terkait pidana mati. Kertas kebijakan ini telah diserahkan kepada para pemangku kepentingan setelah dilangsungkannya Seminar Nasional sebagai masukan yang harapannya dapat ditindaklanjuti.

Kertas kebijakan ini merupakan salah satu langkah LSM Law Firm yang turut andil untuk mencapai cita-cita penghapusan total pidana mati di Indonesia. Pergerakan menuju abolisi penuh pidana mati tentu tidak akan berhenti di sini saja. Karenanya, kami mengundang Anda untuk turut membaca dan/atau membagikan kertas kebijakan kami yang dapat diunduh pada tautan berikut ini.

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We, LUBIS SANTOSA & MARAMIS (“LSM”), are pleased to announce that we have formed a Strategic Cooperation Alliance with MAKES & PARTNERS (“Makes”) aimed at bringing and combining LSM’s excellence in dispute resolution practice and Makes’ excellence in corporate finance and capital market practice, respectively.

This Alliance will allow both firms to continue to ensure the added value and quality in order to provide comprehensive legal services with utmost integrity. This Alliance is also fully supported by Makes’ Pan Asia Strategic Alliance, Wong Partnership, a leading and highly reputable Singapore law firm with its affiliated offices across various jurisdictions.

A further and official joint announcement by the firms will follow.

LUBIS SANTOSA & MARAMIS

01 November 2021

Singapore has grown into one of the leading jurisdictions for international debt restructuring. This has developed synergistically with its position as an international financial centre and preferred venue of international dispute resolution, particularly with the Singapore International Arbitration Centre, the Singapore International Commercial Court, and the Singapore International Mediation Centre. The recent reforms to Singapore’s insolvency and restructuring framework have allowed Singapore to compete with other leading global restructuring and insolvency jurisdictions such as the U.S., the U.K. and Hong Kong.

For the most part, in its push to become a leading regional and global restructuring hub, Singapore is very receptive to foreign companies restructuring their debts in Singapore. The IRDA allows unregistered foreign companies to be wound up if they have a “substantial connection” to Singapore. Recent case law has shown that the Singapore courts are willing to adopt a flexible test to determine whether a foreign company has a “substantial connection” with Singapore.

On Indonesia’s part, the courts have, for many years, generally been slow in recognising foreign judgments and have emphasised the principle of national sovereignty in refusing recognition of foreign judgments and arbitral awards. However, in a recent development, judicial attitudes in Indonesia appear to be changing.

This update includes a look at the Central Jakarta Commercial Court’s decision in PT Bank Maybank Indonesia Tbk v PT Pan Brothers Tbk (Judgment No. 245/Pdt.Sus-PKPU/2021/PN.Niaga.Jkt.Pst), and the growing trend of Indonesian companies utilising Singapore as their centre for restructuring.

If you would like information or assistance on the above, you may wish to contact the Partner at WongPartnership or Lubis Santosa & Maramis whom you normally deal with or the following:

https://www.wongpartnership.com/insights/detail/positive-developments-in-singapore-indonesia-cross-border-restructurings

Previously, the Indonesian Government has issued a regulation regarding the Organization of Electronic Systems and Transactions under Government Regulation Number 71 of 2019. However, such Government Regulation has yet to provide a comprehensive and detailed provision on the organization of electronic systems by private entities. Whereas in reality, the majority of electronic systems are conducted by private entities as online-based businesses continue to grow in its popularity in Indonesia.

Therefore, the Minister of Communication and Information Technology (“Minister”) recently issued Regulation No. 5 of 2020 on Private Electronic System Organizers (“Minister Regulation 5/2020”), which revokes and replaces (i) Minister Regulation No. 19 of 2014 on the Handling of Internet Websites Containing Negative Content; and (ii) Minister Regulation No. 36 of 2014 on Registration Procedures for Organizers of Electronic Systems.

Minister Regulation 5/2020 governs that private electronic systems Organizers (Penyelenggara Sistem Elektronik – “Private PSE”) which meet the following criterias shall be registered to the Minister via Online Single Submission (OSS) system:

1. Private PSEs regulated or supervised by the Ministry or institution based on the provisions of laws and regulations; and/or
2. Private PSEs that have portals, sites, or network applications through the internet to be used to:
   1. provide, manage, and/or make offers and/or trade goods and/or services;
   2. provide, manage, and/or operate financial transaction services;
   3. send materials or paid digital content through data networks either by downloading through portals or sites, dispatch through electronic mail, or through other applications to the equipment of the Electronic Systems User;
   4. provide, manage, and/or operate communications systems comprising but not limited to short messages, voice calls, video calls, elektronic mails, and network conversations in the form of digital platform, network services and social media;
   5. search engine services, electronic information services provider in the form of writings, sounds, pictures, animation, music, video, film, and games or combinations thereof in part and/or entirety; and/or
   6. personal data processing for public service operational activities related to electronic transaction activities.

This registration obligation applies not only to domestic Private PSEs, but also applies to all Private PSEs that are domiciled overseas and established according to other foreign laws and regulations, which fulfill the following categories:

1. providing services within the territory of Indonesia;
2. doing business in Indonesia; and/or
3. the electronic system is used and/or offered in the territory of Indonesia.

After the registration requirements as referred to in Articles 2 to 5 are declared complete in accordance with Minister Regulation 5/2020, the Minister will issue a Registration Certificate of Private PSE.

It is noteworthy that Minister Regulation 5/2020 requires all Private PSEs to register their electronic system prior to any utilization of their electronic services by users. However, in the event of such private PSEs have already been established, the said registrations must be completed within 6 (six) months after the enactment of Minister Regulation 5/2020 or by 24 May 2021 at the latest.

Private PSEs are required to provide user information in Indonesian language as regulated. Private PSEs shall ensure that their electronic system does not:

1. contain the electronic information and/or electronic documents that are prohibited by law; and
2. facilitate the distribution of the prohibited electronic information and/or electronic documents.

The failure of private PSEs to comply with the abovementioned requirements shall be followed up with access blocking to their electronic system, as regulated under Minister Regulation 5/2020.

For More Information:

Teguh Maramis (Partner)
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Dr. Julius I.D. Singara (Partner)
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Dinda Raihan (Associate)
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Lawyers: Lelyana Santosa (Partner) / Dr. Julius Singara (Partner) / Hamonangan Buddhiwisnu Harahap (Senior Associate) / Yosua L. Situmorang (Associate) / Riska Fadilla (Associate)

We are pleased to announce a very good and encouraging news that the Indonesian Supreme Court has granted an appeal filed by Nur Pamudji, former President Director of PT PLN (Persero) (State Owned Electricity Company), against a decision from the Jakarta High Court to sentence him to 7 years in prison with a fine of IDR300,000,000. The Supreme Court has found that Nur Pamudji’s action does not constitute criminal offense under the prevailing laws:

"By self-adjudication, (Supreme Court) declares that the act indicted has been proven but such act does not constitute a criminal act, therefore the defendant is released from legal charges," said the Supreme Court’s spokesperson Andi Samsan Nganro (MA Bebaskan Mantan Dirut PLN Nur Pamudji - Nasional Tempo.co).

Nur Pamudji was once awarded the prestigious Bung Hatta Anti-Corruption Award for his various policies in building the integrity of PT PLN (Persero). However, later on he was accused by the Criminal Investigations Board of the Indonesian Police Force (Bareskrim Polri) and the Attorney General’s Office for committing corruption due to his policies in the procurement of high speed diesel for electric power plants of PT PLN (Persero) thereby causing losses to state finances even.  This accusation came through besides the fact that Nur Pamudji has not made any personal gain from such procurement process. This is the irony of law enforcement in Indonesia as rightly stated by Judge Suparman Nyompa, S.H., M.H., in his dissenting opinion in the judgment at the first instance, whereas:

“...Defendant Nur Pamudji should have received an award from the state for having endeavoured to use PT. PLN budget as efficiently as possible, but conversely the good intentions and hard work of the Defendant to build and increase productivity of PT. PLN by the efficient use of the budget has brought the Defendant to criminal proceedings and has now been declared as a Defendant”.

The same was stated by High Court Judge Lafat Akbar, S.H in his dissenting opinion in the appellate judgment that:

“In the procurement of Goods/Services of PT. PLN, Defendant Nur Pamudji has factually endeavoured to conserve the use of state finances and has shown an annual average saving of state finances amounting to Rp.351,016,281,301 (three hundred fifty-one billion sixteen million two hundred eighty-one thousand three hundred and one rupiah)...”

To date, we are still waiting for the full text of the Supreme Court’s Judgment.

Source:

• MA Bebaskan Mantan Dirut PLN Nur Pamudji - Nasional Tempo.co
• Mahkamah Agung Lepaskan Eks Dirut PLN Nur Pamudji dari Hukuman 7 Tahun Penjara (kompas.com)
• MA Lepas Eks Dirut PLN Nur Pamudji soal Korupsi: Bukan Pidana (cnnindonesia.com)
• Mahkamah Agung Bebaskan Eks Dirut PLN Nur Pamudji - Kabar24 Bisnis.com

In the framework of performing one of the provisions of Law Number 11 of 2020 concerning Job Creation (“Omnibus Law”), particularly relating to the protection of rights and welfare of worker/labor, either during employment or post-employment, the Government issued the Government Regulation Number 35 Year 2021 regarding Fixed-Term Employment Contract, Outsourcing, Work Time, Rest Time and Termination of Employment (“GR 35/2021”). Based on its duration, there are 2 (two) types of Employment Contracts, namely the Fixed-Term Employment Contract/Perjanjian Kerja Waktu Tertentu (“PKWT”) and the Indefinite-Term Employment Contract/Perjanjian Kerja Waktu Tidak Tertentu (“PKWTT”). Further, GR 35/2021 provides an important change to formula for calculating the employment termination compensation. You can find our article which elaborate the compensation for PKWT, employment termination formula for PKWTT as well as the grounds for employment termination.

For More Information:

Teguh Maramis (Partner)
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Dr. Julius I.D. Singara (Partner)
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Bernard Moller (Associate)
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Lawyers: Dr. Julius Singara (Partner) / Doly James Simangunsong, LL.M. (Associate) / Adi Putra Buana Yunara Batubara, LL.M. (Associate)

We are pleased to announce that on 13 April 2021 the South Jakarta District Court has granted PT PLN (Persero)’s Demurrer and rejected a pretrial motion filed by the Indonesia Solicitors at Law.

Previously, on 16 December 2020, the [Indonesia Solicitors at Law] has filed a pretrial motion against:

1. The Government of the Republic of Indonesia c.q. Chief of National Police of Indonesia c.q. Chief of Greater Jakarta Metropolitan Regional Police c.q. Chief of South Jakarta Subregional Police c.q. Chief of Kebayoran Baru Sector Police as Respondent I;
2. The Government of the Republic of Indonesia c.q. President of the Republic of Indonesia c.q. Ministry of State-Owned Companies c.q. PT. Perusahaan Listrik Negara c.q. Aji Lesmana as Manager of PT PLN (Persero) UP3 Bulungan Jakarta Selatan as Respondent II;
3. The Government of the Republic of Indonesia c.q. President of the Republic of Indonesia c.q. Chief of National Police of Indonesia as Co-Respondent I;
4. The Government of the Republic of Indonesia c.q. President of the Republic of Indonesia c.q. Chief of National Police of Indonesia c.q. Chief of  Professional and Security of the National Police (Propam) as Co-Respondent II;
5. The Government of the Republic of Indonesia c.q. President of the Republic of Indonesia c.q. Chief of National Police of Indonesia c.q Chief of Greater Jakarta Metropolitan Regional Police as Co-Respondent III;
6. The Government of the Republic of Indonesia c.q. President of the Republic of Indonesia c.q. Chief of National Police of Indonesia c.q Chief of Greater Jakarta Metropolitan Regional Police c.q. Chief of South Jakarta Resort Police as Co-Respondent IV;
7. The Government of the Republic of Indonesia c.q. President of the Republic of Indonesia c.q. Ministry of State Owned Companies c.q. Zulkifli Zaini as the President Director of PT. PLN (Persero) as Co-Respondent V.

In such pretrial motion, the [Indonesia Solicitors at Law (Law Office)] alleged that Respondent II had committed criminal act of document forgery as intended in Article 263 of the Indonesian Criminal Code and reported the alleged criminal act to the Jakarta Metropolitan Police (Polda Metro Jaya) under the Police Report Number LP/970/II/YAN.2.5/2020/SPKT PMJ dated 12 February 2020 (“LP 970 Case”). Further, on 17 February 2020, the LP 970 Case was transferred to the South Jakarta Sub-regional Police (Polres Jakarta Selatan) for further preliminary investigation. Then, on 16 December 2020, the [Indonesia Solicitors at Law] filed a pretrial motion against the Respondents and Co-Respondents by alleging that the National Police of the Republic of Indonesia has unlawfully terminated the LP 970 Case .  

On 13 April 2021, the South Jakarta District Court decided to “grant the Demurrer of the Respondents” and therefore, “pretrial motion is deemed as unacceptable”.

In 2020, Indonesia has fallen into a recession after its economy shrank for the second consecutive quarter in the July to September period due to the COVID 19 pandemic situation, which is inarguably Indonesia’s greatest economic challenge since 1997-1998 Asian Economic Crisis. However, the Indonesian Government is optimistic that they can pursue an economic growth rate of 4.5 to 5.5% in 2021.

In order to achieve said economic growth target, the government plans to attract more foreign investments that provide strategic value to the national economy by giving tax holidays to pioneering industries, which are industries that have broad linkages, provide added value and high externalities, introduce new technologies, and have strategic value for the national economy. Such policy on tax holidays for pioneering industries is regulated under Minister of Finance Regulation No. 130 of 2020 on Corporate Income Tax Reduction Facility Granting (“PMK No. 130/2020”). However, the Ministry of Finance fully delegated the tax holiday granting authority to the Indonesian Investment Coordinating Board (BKPM). Further, BKPM promulgated BKPM Regulation No. 7 of 2020 on Details of Business Fields and Types of Pioneering Industry Production and Procedures for the Granting of Corporate Income-Tax Deduction Facilities (“Reg No. 7/2020”).

PMK No. 130/2020 determines the eligibility of corporate taxpayer for obtaining this facility, namely:

1. The corporate taxpayer shall constitute a pioneer industry as follows:
   1. Upstream base metal industry (steel or non-steel) without or with its integrated derivatives;
   2. Oil and gas refining industry without or with its integrated derivatives;
   3. Basic organic chemical industry based on petroleum, natural gas and/or coal without or with its integrated derivatives;
   4. Basic organic chemical industry based on agricultural, plantation or forestry products without or with its integrated derivatives;
   5. Inorganic chemical industry without or with its integrated derivatives;
   6. Main pharmaceutical raw material industry without or with its integrated derivatives;
   7. Manufacturing industry of irradiation, electro-medical or electro-therapy equipment;
   8. Manufacturing industry of major components of electronic or telematics equipment such as semiconductor wafer, back light for LCD, electrical driver, or display;
   9. Manufacturing industry of machinery and its main components;
   10. Manufacturing industry of robotic component that supports which supports manufacturing industry machines manufacture;
   11. Manufacturing industry of the power plant engines main components;
   12. Manufacturing industry of motor vehicles and its main components;
   13. Manufacturing industry of shipbuilding main components;
   14. Manufacturing industry of train main components;
   15. Manufacturing industry of aircraft main components and supporting activities for the aerospace industry;
   16. Agricultural, plantation, or forestry product-based processing industries that produce pulp without or with their derivatives;
   17. Economic infrastructure; and
   18. Digital economy which includes data processing, hosting and related activities.
2. The corporate taxpayer shall hold the status of an Indonesian legal entity (perseroan terbatas).
3. The corporate taxpayer has a new investment plan that has never been invoked with a decision on granting or rejecting a tax holiday by the Minister of Finance.
4. The corporate taxpayer shall have a new investment plan in a minimum amount of IDR 100,000,000,000.00 (one hundred billion rupiah).
5. The corporate taxpayer shall satisfy the debt to equity ratio requirements.
6. The corporate taxpayer has committment to realize the investment plan at the latest one year after the the tax holiday is granted.

The rate of tax holidays varied from 50% to 100% for a maximum of 20 (twenty) years and then 25% to 50% corporate income tax reduction for the subsequent two years, depending on the investment value.

It should be noted that the submission of applications for such tax holiday should be filed online by taxpayers through the Online Single Submission (OSS) system. If the OSS system is unavailable, then assessments of criteria fulfilment and applications for corporate income-tax deduction facilities shall be completed offline to BKPM using the application form set out under Appendix II of Reg No. 7/2020.

For More Information:
Teguh Maramis (Partner)
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Dr. Julius I.D. Singara (Partner)
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Gilang M. Santosa (Associate)
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Lawyers: Dr. Julius Singara (Partner) / Doly James Simangunsong (Associate/Qualified Receiver) / Dinda Raihan (Associate) / Insan Fernaldi Lubis (Associate)

PT. Gunung Raja Paksi, Tbk. has been declared under the PKPU based on the Commercial Court Decision at Central Jakarta District Court Number: 432/Pdt.Sus-PKPU/2020/PN.Niaga.Jkt.Pst dated 25th January 2021. Therefore, all debt payments will be manage collectively with the Administrator Team appointed by the Commercial Court.

LSM Law Firm is appointed by Loesche GmbH and PT. Loesche Indonesia (global market leader in vertical roller mill technology for the cement industry since 1906) for representing them in every meeting related to this PKPU proceeding.

Indonesia has officially entered into recession for the first time since the Asian financial crisis more than twenty years ago as the country still fighting to control the Covid-19 outbreak. In light of this severe financial impact and with the end of the pandemic nowhere in sight, many employers were forced to take measures to temporarily shut down offices and furloughed their employees in order to reduce expenses and keep the company afloat.
Since employment matters are sensitive issues and should be treated carefully, the question has arisen as to the appropriate approach for employers to put their employees on furlough. It is worth noting that Law Number 13 of 2003 on Manpower is silent as to whether an employer has the right to furlough employees, put them on unpaid leave of absence, or reduce their wages due to economic conditions. However, the Minister of Manpower issued three circular letters related to the economic situation namely:

1. Circular Letter Number SE-05/M/BW/1998 of 1998 regarding the Remuneration of Employees who are Temporary Laid Off is not towards Termination Employment Relationship;
2. Circular Letter Number: SE-907/MEN/PHI-PPHI/X/2004 regarding Prevention of Termination Mass Employment Relationship; and
3. Circular Letter Number: SE-643/MEN/PHI-PPHI/IX/2005 regarding Prevention of Termination Employment Relationship.

The above Circular Letters allow the employer to furlough the employees or to put the employees on rotating furlough to avoid employment termination. However, it is pivotal to understand that the wages (basic wages and fixed allowance) of those furloughed employees shall be paid in full during the period of furlough. If the employer wishes to not pay the wages in full, then the employer shall obtain employees’ consent.
In addition to the above, the Minister of Manpower has issued Circular Letter Number M/3/HK.04/III/2020 on Protection of Workers and Business Continuity in Precaution and Prevention of Covid-19 as a response to the pandemic. In this letter, it is stated that if an employer is unable or constrained to conduct its business based on the respective regional government policy, which in turn results in all or some of the employees being unable to work, in consideration of business sustainability, such employer may amend or adjust wage amounts and the means of payment based on a mutual agreement between the employer and the employees.

Based on all the above mentioned Circular Letters, it should be noted that the employer is permitted to furlough the employees. However, the employees’ consent is required in the event the employer wishes to reduce wages. This is because any policy affecting the wages of the employees would be considered as an amendment to the employment terms and therefore, it must be mutually agreed between the employer and the employees.

For More Information:

Teguh Maramis (Partner)
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Dr. Julius I.D. Singara (Partner)
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Adhindra Ario Wicaksono (Associate)
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