juridical analysis of the state-owned banks consolidation

Juridical Analysis of The State-Owned Banks Consolidation Option Based

On The Perspective of The 2012 Single Presence Policy

Tara Priscilla Ogilvie, Aad Rusyad Nurdin

Ilmu Hukum, Fakultas Hukum, Universitas Indonesia, Kampus Baru UI Depok, 16424, Indonesia

E-mail: [email protected]

Abstract

On September 2013, The Government of Indonesia as the Controlling Shareholder of 4 (four) State-Owned

Banks namely; PT. Bank Mandiri (Persero) Tbk, PT. Bank Negara Indonesia (Persero) Tbk, PT. Bank Rakyat

Indonesia (Persero) Tbk, and PT. Bank Tabungan Negara (Persero) Tbk had formed a Holding Function named

KKB-BUMN (State-Owned Banks Policy Committee) to comply with Bank Indonesia Regulation No.

14/24/PBI/2012 concerning The Single Presence Policy in Indonesian Banks (hereinafter will be referred as

“The 2012 SPP”). However, in 2014, The Financial Services Authority (OJK) and The Ministry of State-Owned

Enterprise suddenly had a change of plan to consolidate these State-Owned Banks instead. From these incidents,

this research will analyze the mechanism of Consolidation as opposed with Holding Function as ownership

structure adjustments offered by The 2012 SPP in its applicability to Indonesia’s State-Owned Banks. In

addition, this research will also analyze the implementation of The Single Presence Policy to the Government of

Indonesia as the Controlling Shareholder of more than 1 (one) State-Owned Banks throughout the course of

history.

Keywords: Single Presence Policy, Consolidation, Holding Function

Analisa Yuridis Opsi Konsolidasi Bank-Bank BUMN Berdasarkan Perspektif

Kepemilikan Tunggal 2012

Abstrak

Pada bulan September tahun 2013, Pemerintah Republik Indonesia selaku Pemegang Saham Pengendali 4

(empat) Bank BUMN yakni; PT. Bank Mandiri (Persero) Tbk, PT. Bank Negara Indonesia (Persero) Tbk, PT.

Bank Rakyat Indonesia (Persero) Tbk, dan PT. Bank Tabungan Negara (Persero) Tbk telah membentuk Fungsi

Holding bernama KKB-BUMN (Komite Kebijakan Bank BUMN) untuk mematuhi Peraturan Bank Indonesia

No. 14/24/PBI/2012 mengenai Kepemilikan Tunggal dalam Perbankan Indonesia (“The 2012 SPP”). Namun

demikian, pada tahun 2014, Otoritas Jasa Keuangan (OJK) dan Kementerian BUMN mengadakan perubahan

arah dan tujuan untuk sebaliknya mengkonsolidasikan bank-bank BUMN tersebut. Dengan terjadinya hal-hal

tersebut, penelitian ini akan menganalisa mekanisme Konsolidasi dibandingkan dengan Fungsi Holding sebagai

penyesuaian struktur kepemilikan yang ditawarkan oleh Kepemilikan Tunggal 2012 dalam penerapannya pada

Bank-Bank BUMN Indonesia. Selain itu, penelitian ini juga akan menganalisa implementasi Kepemilikan

Tunggal terhadap Pemerintah Republik Indonesia sebagai Pemegang Saham Pengendali lebih dari satu Bank

BUMN Indonesia sepanjang berjalannya sejarah.

Kata Kunci: Kepemilikan Tunggal, Konsolidasi, Fungsi Holding

Analisa yuridis..., Tara Priscilla Ogilvie, FH, 2014

mailto:[email protected]

Introduction

In the year of 2014, The Ministry of State-Owned Enterprise (Kementerian Badan Usaha

Milik Negara/ BUMN) and The Financial Services Authority (Otoritas Jasa Keuangan/ OJK)

have been intensely discussing the option of Indonesia’s State-Owned Banks Consolidation1.

The rationale behind this proposition is to increase and strengthen the liquidity (capital

structure) of Indonesia’s State-Owned Banks predominantly in facing ASEAN Economic

Community’s full force in 20202. There are currently four State-Owned Banks in Indonesia;

PT Bank Negara Indonesia (Persero) Tbk, PT Bank Rakyat Indonesia (Persero) Tbk, PT Bank

Tabungan Negara (Persero) Tbk, and PT Bank Mandiri (Persero) Tbk. The Government of

Indonesia is the Controlling Shareholder in all of these 4 (four) State-Owned Banks.

Back in 2006, Bank Indonesia (“BI”) issued Regulation No. 8/16/PBI/2006 regarding The

Single Presence Policy (The 2006 SPP). The enactment of The 2006 SPP is fundamentally in

line with BI’s policy that regulates The Minimum Core Capital of Banks (PBI No.

9/16/PBI/2007). The objectives of both policies are to direct banks in Indonesia to achieve a

strong capital structure3. The 2006 SPP stipulates that any party may only become a

Controlling Shareholder in 1 bank4. Parties which have become Controlling Shareholders in

more than 1 (one) Banks are required to adjust their ownership structure by ways of;

transferring a part or the whole ownership of their shares so that they only become a

Controlling Shareholder in 1 (one) Bank, implement merger or consolidation on Banks under

their control, or establish a Bank Holding Company5. According to The 2006 SPP, the

ownership structure adjustment is required to be completed no later than by the end of

December 20106.

Later in December 26th

2012, BI issued a new Single Presence Policy through BI

Regulation No.14/24/PBI/2012 (The 2012 SPP). The enactment of The 2012 SPP officially 1 Afriyadi, Achmad “OJK Ingin Bank Bumn Konsolidasi.” http://bisnis.liputan6.com/. August 26, 2014.

Accessed September 10, 2014. http://bisnis.liputan6.com/read/2086309/ojk-ingin-bank-bumn-konsolidasi.

2 On November 20th

2007, Indonesia had made a commitment to eliminate all market access and national

treatment limitation specified in the Banking Sector and Subsector by the year 2020, subject to similar

commitment by other AEC members (http://www.asean.org/communities/asean-economic-community)

3 Aisyah Siregar, “Single Presence Policy,” www.hukumonline.com, August 19, 2009, accessed September 11,

2014, http://www.hukumonline.com/klinik/detail/cl7082/single-presence-policy.

4 Article 2 of BI Regulation No. 8/16/PBI/2006 regarding The Single Presence Policy in Indonesian Banks




http://bisnis.liputan6.com/read/2086309/ojk-ingin-bank-bumn-konsolidasi

http://www.asean.org/communities/asean-economic-community

http://www.hukumonline.com/klinik/detail/cl7082/single-presence-policy

revoked the applicability of The 2006 SPP7. The 2012 SPP essentially also stipulates that any

party may only become a Controlling Shareholder in 1 (one) bank8, however, parties that

have become Controlling Shareholders in more than 1 (one) banks are obliged to adjust the

SPP provision by conducting; merger or consolidation of the Banks it controls, form a Bank

Holding Company, or, form a Holding Function9.

INDONESIAN STATE OWNED BANKS SHAREHOLDING COMPOSITION PER

31 DECEMBER 2013

State-Owned Bank

Shareholding Composition (%)

(Per December 31st 2013)

State

(The Government of

Indonesia)

Public

(Domestic and Foreign

Shareholders)

Bank Mandiri 60% 40%

Bank Negara Indonesia

(BNI)

60% 40%

Bank Rakyat Indonesia

(BRI)

56,75% 43,25%

Bank Tabungan Negara

(BTN)

60,14% 39,86%

Table I

Based on the principle of equal treatment of SPP, even The Government of Indonesia as

the Controlling Shareholders of 4 (four) State-Owned Banks as shown in Table I above also

has the obligation to adjust their ownership structure as provided by The 2012 SPP. On

September 2013, The Government of Indonesia (represented by The Ministry of State-Owned

Enterprise) in fact already formed a Holding Function to comply with The 2012 SPP by

establishing State-Owned Banks Policy Committee (Komite Kebijakan Bank BUMN/ KKB-





BUMN) as the Holding Function through The State-Owned Enterprise Minister Decree as the

Controlling Shareholder of State-Owned Banks No. KEP-360/MBU/2013 concerning the

Establishment of State-Owned Banks Policy Committee. Yet in spite of this, in 2014, the

Government had a change of plan and direction to Consolidate the 4 (four) State-Owned

Banks under their control instead10

.

Based on the occurrences discussed above, came the encouragement to analyze the on

going discussion in 2014 regarding The Consolidation of State-Owned Banks Option from the

perspective of Single Presence Policy (The 2012 SPP). There is a need to Asses the decision

of the Government by examining the legal mechanism and implications of The Consolidation

option and how it weighs with the option of Holding Function as another alternative offered

by The 2012 SPP to adjust the obliged ownership structure. It is also crucial to elaborate the

applicability of SPP to the Government of Indonesia as the controlling shareholders of more

than one State-Owned Banks that ought to undergo the impact of ownership structure

adjustment obligation throughout the course of history. Analyzing the legal issues and legal

impacts of the “State-Owned Banks Consolidation Plan” from the conditions expected from

The 2012 Single Presence Policy is significant for a crucial understanding on a noteworthy

legal implication.

There are two research questions, which will be used to analyze the Consolidation of

State-Owned Banks Option from the Perspective of The 2012 Single Presence Policy. Those

two research questions, which represent the core legal issues in this research, are:

(1) How does the mechanism of Consolidation weigh with the option of Holding Function

as ownership structure adjustment options offered by The 2012 Single Presence

Policy, in its applicability to Indonesia’s State-Owned Banks?

(2) How does the Single Presence Policy apply to the Government of Indonesia as the

Controlling Shareholders of more than one State-Owned Banks throughout the course

of history?

The objective of this research is to obtain insights on how the Single Presence Policy

affect the Government of Indonesia as the Controlling Shareholders of more than one State-

Owned Banks throughout the policy’s existence in Indonesia (from 2006 up until today). This

research also aims to criticize and evaluate the mechanism of Government’s current plan and

10

Interview with Mr. Priyatmo Hadi on December 1st 2014; The Head of Banking Business in The Deputy of

Financial Services Business Sector in the Ministry of State-Owned Enterprise (Appendix X).


preference of State-Owned Banks Consolidation by comparing it with the new alternative of

Holding Function’s mechanism as offered in The 2012 SPP in order to trigger a profound

legal study regarding the adjustment of ownership structure in Indonesian Banks. Last but not

least, this research holds the purpose of identifying the legal consequences or implications of

each option, along with consequences of non-compliance with The SPP; thus, raising legal

awareness on how complying with SPP through Consolidation or Holding Function may set

aside other rights or obligations determined by law.

Theoretical Framework

According to Law No. 10 Year 1998 on Banking (“The Banking Law”), Bank is a

corporate entity mobilizing funds from the public in the form of Deposits and channeling

those funds to the public in the forms of Credit and/or other forms in order to improve the

living standards of the common people11

. Fundamentally, State-Owned Banks (Bank Badan

Usaha Milik Negara/ Bank BUMN) can be defined as banks, which all or most of its shares

are owned by the Government; this is why these banks are often called the Government

Bank12

. Based on its characteristics, State-Owned Banks cannot be equalized with private

banks; this is because State-Owned Banks have a special duty to achieve the people’s welfare

besides gaining profit for the interest of its stakeholders. This characteristic can be seen from

the focus of each Bank; Bank BNI and Bank Mandiri focuses on the funding of cooperatives

(koperasi), Bank BRI focuses on the funding of small, medium, and micro enterprises,

whereas Bank BTN focuses on the funding of the people’s housing13

. Based on its function,

State-Owned Banks operate no differently than other Commercial Banks (Bank Umum).

Commercial Banks are banks that based its activities on conventional and/or Syariah

principles, which provides services in the payment transactions14

. This means, State-Owned

Banks, like Commercial Banks, are banks that can give all services in the payment

transaction, and can focus itself to perform certain services or give more attention to certain

banking activities, such as long term payment, or payment for cooperative development.

11

Article 1 Paragraph 2 of Law No. 10 Year 1998 on Banking (“The Banking Law”) 12

Banking and Non-Banking Practice, Siswandi Darmo Saputro, S.E., M.M. P 35. 13 Bimo Pribadi, “Implikasi Penerapan Single Presence Policy Dalam Bentuk Bank Holding Company Terhadap

Bank-Bank Bumn” (SH diss., Universitas Indonesia, 2010), 1, accessed October 10, 2014, lib.ui.ac.id. 14

Article 1 Paragraph 3 of Law No. 10 Year 1998 on Banking (“The Banking Law”)


Commercial banks can be established in all territories in Indonesia, and even outside the

country as a subsidiary (branch)15

.

As per December 2011 until today, there are currently 4 (four) State-Owned Banks in

Indonesia16

; PT Bank Negara Indonesia (Persero) Tbk, PT Bank Rakyat Indonesia (Persero)

Tbk, PT Bank Tabungan Negara (Persero) Tbk, and PT Bank Mandiri (Persero) Tbk. The

Government of Indonesia is the Controlling Shareholder in all of these four State-Owned

Banks. As can be seen from the term “PT” and “Persero” placed in the aforementioned names,

all 4 (four) State-Owned Banks in Indonesia are classified as Company Corporation

(Perusahaan Persero), taking the form of a Limited Liability Company (PT) which capital is

divided into shares whereby the law regulates that all or at least 51% of its shares has to be

owned by the State with the main objective of gaining profit17

.

The meaning of Controlling Shareholder in this research is strictly limited to the definition

given by Article 1 Paragraph 3 of Bank Indonesia Regulation No.14/24/PBI/2012 on Single

Presence Policy in Indonesian Banks (hereinafter referred to as “The 2012 SPP”), which

provides that what is classified as a “Controlling Shareholder” is a legal entity and/or

individual and/or business group which:

a. Hold Bank Shares amounting to 25% (twenty five percent) or more of the shares

issued by the Bank and owns voting rights.

b. Hold Bank shares less than 25% (twenty five percent) of the shares issued by the

Bank and own voting rights but have evidently exercised control on the Bank

either directly or indirectly.

Article 2 of The 2012 SPP explicitly stated that any party might only become a

Controlling Shareholder in 1 (one) Bank; this provision is what is called “The Single

Presence Policy”. Parties, which have already:

i. Become Controlling Shareholders in more than 1 (one) Banks; or

ii. Perform a purchase of shares in other Banks so that the parties concerned becomes

Controlling Shareholder in more than 1 (one) Bank

15

Kasmir S.E., M.M, Dasar-Dasar Perbankan (Jakarta: PT Rajagrafindo Persada, 2002),19. 16

Up to the year of 2008, there are 5 State-Owned Banks in Indonesia namely; Bank Mandiri, Bank Negara

Indonesia, Bank Rakyat Indonesia, Bank Tabungan Negara, and Bank Ekspor Indonesia. However, in the year

of 2009, Bank Ekspor Indonesia changed its legal status and became Indonesian Export Financial Institution

based on Law No. 2 Year 2009 17

Article 1(2) jo. Chapter II of Law No. 19 Year 2003 concerning State-Owned Enterprises


; Are required to fulfill the Single Presence Policy in the sense that they need to adjust

their ownership structure so that they only become a Controlling Shareholder in 1 (one)

Bank18

. The fulfillment of single presence policy by those parties could be done by ways of19

:

i. Merger or Consolidation of Banks which they control;

ii. Form a Bank Holding Company; or

iii. Form a Holding Function

The Banking Law defines Consolidation as the combining of two or more Banks by

establishing a new Bank and winding up such existing Banks with or without liquidating

them20

. In relation to corporate law, the Limited Liability Company Law (UUPT) defines

consolidation as a legal action performed by 2 (two) or more companies to consolidate itself

by means of establishing a newly created company that by law acquire the assets and

liabilities of the consolidating companies, moreover, by law, the legal entity status of the

consolidating companies extinguishes21

. Whereas, Holding Function is defined as a function

owned by a Controlling Shareholder that has the form of Bank (which is an Indonesian Legal

Entity) or the form of Government Instance of The Republic of Indonesia, to consolidate and

control directly all the activities of Banks that becomes its subsidiaries22

.

Research Methodology

This is a normative legal research conducted based on the understanding of a legal

systematic provided in BI Regulation No. 14/24/PBI/2012 concerning The Single Presence

Policy in Indonesian Banks through a Juridical Analysis of The State-Owned Banks

Consolidation Option based on The Perspective of The 2012 Single Presence Policy. The

types of data that will be used in this research are both primary and secondary data. The

primary data will be obtained by interviews from The Ministry of State-Owned Enterprise,

The Financial Services Authority, and Bank Indonesia. The secondary data will be obtained

18

Article 3 Paragraph 1 of BI Regulation No. 14/24/PBI/2012 regarding The Single Presence Policy in

Indonesian Banks 19


Indonesian Banks 20

Article 1 Paragraph 26 of Law No. 10 Year 1998 (“The Banking Law”) jo. Article 1 Paragraph 3 of

Government Regulation No. 28 Year 1999 jo. Article 1 Point C of BI’s Board of Directors’ Decree No.

32/51/KEP/DIR 21

Article 1 Paragraph 10 of Law No. 40 Year 2007 concerning Limited Liability Company 22


Indonesian Banks


from the prevailing laws and regulations first and foremost regarding Indonesia’s Banking

Law, Company Law, Manpower Law, State-Owned Enterprise Law, Prohibition on

Monopolistic Practices and Unfair Business Competition Law, The Capital Market Law, as

well as the related Government Regulations, Bank Indonesia’s Regulation, Bank Indonesia’s

Circulation Letter, and Bank Indonesia’s BOD Decree along with additional Banking related

textbooks, journals, websites, and references from earlier thesis with similar issues.

The typology of this research will be based on the nature of its characteristic, form,

objective, and application. This research’s characteristic will be explanatory, as it will explain

the impact of regulations and provisions in The 2012 Single Presence Policy to the The

Government of Indonesia as the Controlling Shareholders of more than 1 (one) State-Owned

Banks. The form of this research will be evaluative as it will assess and evaluate the

Government’s Consolidation Preference in comparison with the new alternative of Holding

Function The 2012 SPP, as well as evaluating the legal implications on how the SPP set aside

rights of General Meeting of Shareholders (GMS) given by The Company Law. This

research’s objective will be both problem finding and problem identification. It’s problem

finding in the sense that it’s going to find possible issues regarding the Government’s choice

of Consolidation of State-Owned Banks by comparing it with the alternative of Holding

Function as an ownership structure adjustment. Based on its application, this research is

classified as a pure-research as it is aimed for knowledge development regarding the

applicability of Consolidation and Holding Function offered as the Ownership Structure

Adjustment based on The Single Presence Policy to the State-Owned Banks, it also deals with

theory provided by the secondary data related to the topic.

Discussion

The Banking Law characterize Consolidation as the combining of two or more Banks by

establishing a new Bank and winding up such existing Banks with or without liquidating

them23

, Consolidation based on the standpoint of The 2012 SPP fundamentally has the same

concept with the aforementioned definition, however, the banks being consolidated in this

context are only banks under the control of the same Controlling Shareholder. On the other

23

Article 1 Paragraph 26 of Law No. 10 Year 1998 (“The Banking Law”) jo. Article 1 Paragraph 3 of

Government Regulation No. 28 Year 1999 jo. Article 1 Point C of BI’s Board of Directors’ Decree No.

32/51/KEP/DIR


hand, Holding Function is a function owned by a Controlling Shareholder that is either a Bank

(which is an Indonesian Legal Entity) or a Government Instance of The Republic of

Indonesia, to consolidate and control directly all the activities of Banks that becomes its

subsidiaries24

; it is clear here that the option of Holding Function can only be performed by

a specific controlling shareholder whereby The Government of Indonesia is the type of

Controlling Shareholder that has the privilege to choose such option.

The obligation to create a new legal entity in Consolidation, which is the Consolidation

Result Bank, requires a lengthy legal procedure as regulated under Government Regulation

No. 28 Year 1999 concerning Merger, Consolidation, and Acquisition of Banks jo.

BAPEPAM Regulation No. IX.G.I concerning Merger and Consolidation of Public

Companies and Issuers jo. Bank Indonesia’s BOD Decree No. 32/51/KEP/DIR concerning

The Requirements and Procedure of Merger, Consolidation, and Acquisition of Commercial

Banks. Firstly, the BOD of banks performing consolidation each has to prepare a Proposal of

Consolidation Plan25

, which needs to obtain the approval of The BOC of their respective

banks. The Proposal of Consolidation Plan will become the basis of organizing the

Consolidation Arrangement; this arrangement will be organized together by the BOD of the

consolidating banks. BOD of each Bank, after obtaining the approval of their respective BOC

on the Proposal of Consolidation Plan, must perform a feasibility study of the Consolidation

covering aspects required by Article 4(a) of BAPEPAM Regulation No. IX.G.I. The GMS

then needs to be summoned after the BOD announces the summary of Consolidation Plan26

.

The Consolidation Plan and Deed of Consolidation shall be submitted to OJK and GMS of

each Bank, and The Deed of Consolidation that has obtained the approval of OJK and GMS

of each Bank shall be made in front of the Notary in Indonesian Language; this Deed of

Consolidation will then become the basis for the creation of Deed of Establishment of the

Consolidation Result Bank27

. The Ministry of Law and Human Rights (MOLHR) will give an

approval on the application for the legalization of the Deed of Establishment of The

Consolidation Result Bank after the MOLHR obtained copy of license of consolidation from

24


Indonesian Banks 25

The Proposal of Consolidation, aside from having to contain the proposal elements required by Article 11 and

Article 12 of Government Regulation No. 28 Year 1999, also has to stipulate the confirmation from the bank that

will consolidate itself to the newly to the newly established bank as the outcome of consolidation. 26

The BOD is obliged to announce the summary of Consolidation Plan at the latest of 30 days before the GMS

in 2 daily newspapers which spreads broadly, and 14 days before the GMS made in writing to the employees of

the banks. 27

Article 23 of Government Regulation No. 28 Year 1999 on Merger, Consolidation, and Acquisition of Banks.


OJK in the period of 14 days after the consolidation license was given by OJK to the

consolidating banks at the latest28

. Banks that have obtained the license/permit to perform

Consolidation were given additional obligations provided under Article 17 of Bank

Indonesia’s BOD Decree No. 32/51/KEP/DIR29

.

On the other hand, the legal procedure on the option of forming a Holding Function is not

as extensive as the aforementioned Consolidation Procedure. Firstly, the Controlling

Shareholders, in this case the Government, planning to establish a Holding Function over its

State-Owned Banks, shall submit some supporting documents and information to OJK, those

being; the organizational structure of the Holding Function, the list of executer of Holding

Function, and an appointment letter to be the executer of the Holding Function30

. There is a

special requirement given by The 2012 SPP for the Government of The Republic of Indonesia

(represented by the Ministry of State-Owned Enterprise) as the Controlling Shareholder that

chose the option of Holding Function, whereby the Holding Function shall be headed by the

First Eselon Official (Pejabat Eselon I) or an official that is a level below the Minister31

.

Secondly, the Holding Function plan shall be enclosed in the sub-chapter of Management

Policy and Strategy of the Bank Business Plan that shall be submitted to OJK. The application

of forming a Holding Function shall then be submitted to OJK by attaching the minutes of

meeting of GMS of each banks (if it is preceded by acquisition of banks) and the

organizational structure and executor arrangement of the Holding Function. OJK will give an

approval on the request of the establishment of Holding Function at the maximum of 30

(thirty) working days after all the conditioned documents were received completely and

correctly32

.

In its real-life implementation, the Ministry of State-Owned Enterprise in fact already

formed a Holding Function upon Indonesia’s State Owned Banks in September 2013 by

establishing State-Owned Banks Policy Committee (Komite Kebijakan Bank BUMN/

28

Article 25 of Government Regulation No. 29 Year 1999 concerning Merger, Consolidation, and Acquisition of

Banks 29

These obligations includes organizing balance sheet of each bank performing the consolidation, organize the

bookkeeping balance sheet of the Consolidation Result Bank, announce the result of consolidation along with the

bookkeeping and balance sheet of the Consolidation Result Bank in 2 (two) newspapers that spreads broadly at

the latest of 30 (thirty) days since the validity date of the consolidation license, and submit a report on the

implementation of consolidation to OJK at the latest of 10 days after the announcement date. 30

Section IV C of Bank Indonesia Circulation Leter No. 5/12/DPNP dated February 4th

2013 regarding The

Single Presence in Indonesian Banks 31

Section IV D of Bank Indonesia Circulation Leter No. 5/12/DPNP dated February 4th

2013 regarding The

Single Presence in Indonesian Banks 32

Section IV E of Bank Indonesia Circulation Leter No. 5/12/DPNP dated February 4th

2013 regarding The

Single Presence in Indonesian Banks


KKB-BUMN) as the Holding Function through The State-Owned Enterprise Minister

Decree as The Controlling Shareholder of State-Owned Banks No. KEP-360/MBU/2013

concerning the Establishment of State-Owned Banks Policy Committee. The membership of

KKB-BUMN as the Holding Function consists as follows33

:

1. The Chairman : The Undersecretary (Vice Minister) of State-Owned

Enterprise Ministry.

2. The Vice Chairman : The Deputy of Financial Services Business Sector

(Eselon Officer I of The State-Owned Enterprise that is in charge of the State-

Owned Enterprise Banking Sector)

3. The Members :

a. The Chief Commissioner (Komisaris Utama) of PT. Bank Mandiri

(Persero) Tbk

b. The Chief Commissioner of PT. Bank Rakyat Indonesia (Persero) Tbk

c. The Chief Commissioner of PT. Bank Negara Indonesia (Persero) Tbk

d. The Chief Commissioner of PT. Bank Tabungan Negara (Persero) Tbk

The aforementioned organizational structure of KKB-BUMN as the Holding Function

shows how in its implementation it is in line with the protocol given by Section IV (D) of BI

Circulation Letter No. 15/2/DPNP as the implementing regulation of The 2012 SPP whereby

the Holding Function shall be headed by the first eselon officer or an officer one level below

the Minister of State-Owned Enterprise.

It is no secret that State Owned Banks in Indonesia are banks with the largest assets in the

country. Bank Mandiri, being Indonesia’s mega-bank, owns an asset that reaches the amount

of Rp. 624,74 trillion, holding 24% of the total assets of the whole Indonesian banks; it is the

bank with the largest asset in Indonesia. Bank BRI holds the second rank, holding an asset

that reaches the amount of Rp. 621,98 trillion. Bank BNI holds the forth rank, owning an asset

that reaches the amount of Rp. 388,01 trillion, whereas Bank BTN is in position number 10,

owning an asset of Rp. 135,62 trillion34

. If the Government of Indonesia chose the option of

consolidation to comply with the 2012 SPP, the aforementioned considerable amount of

33

Section One of The Minister of State-Owned Enterprise Decree as The Controlling Shareholder of State-

Owned Banks No. KEP-360/MBU/2013 concerning The Establishment of State-Owned Banks Policy

Committee (KKB-BUMN) 34

Heri Kumoro, “10 Bank Dengan Aset Terbesar di Indonesia,” www.bisniskeuangan.kompas.com, August 12,

2014, accessed October 29, 2014,

http://bisniskeuangan.kompas.com/read/2014/08/12/095520626/Ini.10.Bank.dengan.Aset.Terbesar.di.Indonesia.


http://bisniskeuangan.kompas.com/read/2014/08/12/095520626/Ini.10.Bank.dengan.Aset.Terbesar.di.Indonesia

assets of the State-Owned Banks are going to be consolidated into the consolidation result

State-Owned Bank, consequently, the asset of the newly established consolidation result

State-Owned Bank will exceed 20% (twenty percent) of the total assets of the whole Bank in

Indonesia, which is a situation that is prohibited by SK DIR BI No. 32/51/KEP/DIR35

; this

issue is apparent since Bank Mandiri itself already holds 24% of the total assets of the whole

Bank in Indonesia, and combining the asset of Bank Mandiri with the other three State-

Owned Banks will only add up the amount of total shares hold by the Consolidation Result

Bank. To sum up the aforementioned considerations, Consolidation of State-Owned Banks

has the potential, or inevitability, to generate an unfair business competition seeing that the

consolidation result State-Owned Bank will have a sky-scraping amount of asset, will form a

market concentration as it enlarge it's own market strength that threatens the condition of

smaller banks in the country to fairly compete, thus will likely control the domestic banking

market and would hinder a free and healthy competition and in reverse create a monopolistic

market instead.

Given that all 4 (four) State-Owned Banks in Indonesia are all publicly listed companies

(PT Tbk), there are minority shareholders/ independent shareholders in the Companies who

also have rights in the scenario of Consolidation. Article 62 (1) and (2) of The Company Law

stipulates that “Each shareholder is entitled to request the Company that the shareholder’s

shares be bought at a fair price if the shareholder concerned does not approve of actions by

the company which harm that shareholder or the company in the form of: a) amendments of

article of association…c) Mergers, Consolidations, Acquisitions, or Demergers.” This shows

how each Consolidating State-Owned Banks needs to be prepared on the possibility that if

there are numerous minority shareholders who are not on the same boat with the

Consolidation decision, these banks need to have an enormous amount of money to buy their

shares. Article 4 (a)(5) and (b)(15) of BAPEPAM Regulation No. IX.G.I also provides that

BOD of each Bank needs to perform feasibility in arranging the Consolidation Plan which

includes assessing the methods of fulfilling the rights of minority shareholders that do not

agree with the Consolidation.

There are also legal implications related to the Manpower Rights of the consolidating

State-Owned Banks’ employees. The circumstance relates to the possible conditions that are

permissible by Article 163 of Law No 13 Year 2003 known as The Manpower Law (UU

35

Article 4 point (c) of SK DIR BI No. 32/51/KEP/DIR concerning the Requirements and Procedure of Merger,

Consolidation, and Acquisition of Commercial Banks.


Ketenagakerjaan). The number of employees in Bank Mandiri per December 2013 is 33.982

heads. BRI’s employees in 2013 amounted in 81,238 people, including contractual

employees. BNI has 26100 employees by the end of 2013, whereas BTN has 8011 employees.

These high numbers of employees combined shows that there is a high probability that not all

of the employees from the consolidating State-Owned Banks can be transferred/ employed

into the newly Consolidation Result Bank. Article 163 permitted 2 scenarios relating to

Manpower after Consolidation is executed, the first scenario is where the worker/employee

no longer wish to continue their employment at the consolidation result bank, and the

second scenario is where the employer is not willing to accept the employees in the

consolidation result bank. However, in both situations, there are protections to the

employees where the worker/employee shall be entitled to severance pay according to what is

stipulated under Article 156 of The Manpower Law.

On the other hand, the internal legal consequence of Holding Function is purely where the

Holding Function will have the authority to manage and decide strategic directions and

operational activities of its subsidiary banks by controlling and consolidating the state-owned

banks within one group. Holding Function carry out the duties36

to; a) Determine the strategic

working plan of The Holding Function at least for the next 3 (three) years, b) Give strategic

directions at least for the next 3 (three) years, and consolidate the working plans of Banks

that became its subsidiary, c) Approve and supervise the strategic working plans

implementation of Banks, which became its subsidiary, and d) Consolidate financial reports

of subsidiary companies with financial reports of the Holding Function as well as producing

other necessary consolidation reports. Section II of The Minister of State-Owned Enterprise

Decree No. KEP-360/MBU/2013 concerning The Establishment of KKB-BUMN stipulated

the duties and obligations KKB-BUMN as the Holding Function of all 4 (four) Indonesia’s

State-Owned Banks. In relation to the Holding Function’s obligation to produce a

Consolidated Financial Report, the Ministry of State-Owned Enterprise deemed this

obligation to be difficult to implement37

because KKB-BUMN as the Holding Function has

different legal entity with the State-Owned Banks; KKB-BUMN is a Committee, an

organization established through the Minister of State-Owned Banks’ decree whereas State-

Owned Banks are banks in the form of Limited Liability Company; the Ministry is still

36

Section IV F jo. III H of Bank Indonesia Circulation Letter No. 5/12/DPNP dated February 4th

2013 regarding

Single Presence in Indonesian Banks. 37

Interview with Mr. Priyatmo Hadi on December 1st 2014; The Head of Banking Business in the Deputy of

Financial Services Business Sector in the Ministry of State-Owned Enterprise (Appendix X)


figuring out a way to integrate the financial report of The KKB-BUMN as the Holding

Function with the financial reports of the 4 State-Owned Banks into a Consolidated Financial

Report obligated by BI Circulation Letter No. 15/2/DPNP concerning the Single Presence

Policy in Indonesian Banks38

.

In terms of Synergy, Consolidation will be able to create a better financial stability

through the integration of assets of the consolidating banks, wider distribution network

through the compliments of different geographic footprints of ATMs and Office Branches of

the consolidating banks, as well as complementary products and capabilities to the

consolidating banks as they each has their own strongest banking service feature. On the other

hand, the effectiveness of Holding Function in deriving Synergy fully depends on the

effectiveness of the strategic working plan of the subsidiary banks determined by KKB-

BUMN as the Holding Function itself.

If The Government of Indonesia as the Controlling Shareholder of more than one State

Owned Banks chose to perform Consolidation as an ownership structure adjustment to

comply with the Single Presence Policy, they will be given incentives39

in the form of; 1)

Temporary relief on the fulfillment of the Reserve Requirements, 2) Extension of time to

settle the exceeding Legal Lending Limit, 3) Easement in opening office branches; and/or 4)

Temporary relief for the Good Corporate Governance implementation; these incentives are

not available for the option of Holding Function.

In relation to the applicability of The Single Presence Policy to The Government of

Indonesia as the Controlling Shareholder of more than one State-Owned Banks throughout the

course of history, we shall go back to the year 2006 when the first SPP was enacted in the

country.

INDONESIAN STATE OWNED BANKS SHAREHOLDING COMPOSITION PER

DECEMBER 2006

Shareholding Composition (%)

(Per December 31st 2006)

38

Section III H No. 4 of Bank Indonesia Circulation Letter No. 5/12/DPNP dated February 4th

2013 regarding

Single Presence in Indonesian Banks. 39


Indonesian Banks


State-Owned Bank

State

(The Government of

Indonesia)

Public

(Domestic and Foreign

Shareholders)

Bank Mandiri 67,86% 32,14%

Bank Negara Indonesia

(BNI)

99,11% 0,89%

Bank Rakyat Indonesia

(BRI)

59.5% 40,50%

Bank Tabungan Negara

(BTN)

100% 0%

Bank Ekspor Indonesia 100% 0%

Table II

In 2006, the Government of Indonesia is the Controlling Shareholder of 5 (five) State-

Owned Banks (as shown by Table II above) that should have complied with the SPP that is

required to be completed no later then by the end of December 2010 as required by Article

7(1) of BI Regulation No. 8/16/PBI/2006 . Conversely, in 2010 the State-Owned Enterprise

Banking and Financial Services Deputy claim that The State-Owned Enterprise

Ministry and Bank Indonesia already has a memorandum of understanding to postpone

the implementation of Single Presence Policy to the State-Owned Banks although Bank

Indonesia had previously stated that there is an Equal Treatment principle to the application of

Single Presence Policy40

. The Government of Indonesia finally complied with newly enacted

2012 SPP by establishing KKB-BUMN as a Holding Function of Indonesia’s State-Owned

Banks on September 2013; what is uncertain here is the effectiveness of KKB-BUMN itself,

this is because in Section 8 (Eight) of The Minister of State-Owned Enterprise Decree as The

Controlling Shareholder of State-Owned Banks No. KEP-360/MBU/2013 concerning The

Establishment of State-Owned Banks Policy Committee (KKB-BUMN) it was stated that

KKB-BUMN will affectively applies once the approval letter concerning the establishment of

KKB-BUMN as the Holding Function is obtained from OJK, yet until today, such approval

letter has not yet been acquired by the Ministry. Nevertheless, Section IV (E) (7) of BI

40

Yoz, “Bank Bumn Belum Bisa Ikuti Kebijakan SPP,” www.hukumonline.com, February 16, 2010, accessed

November 8, 2014, http://www.hukumonline.com/berita/baca/lt4b798cfc7f4b0/bank-bumn-belum-bisa-ikuti-

kebijakan-spp.


http://www.hukumonline.com/berita/baca/lt4b798cfc7f4b0/bank-bumn-belum-bisa-ikuti-kebijakan-spp

http://www.hukumonline.com/berita/baca/lt4b798cfc7f4b0/bank-bumn-belum-bisa-ikuti-kebijakan-spp

Circulation Letter No. 15/2/DPNP concerning Single Presence Policy in Indonesian Banks

stated that OJK shall give approval on the application of the establishment of Holding

Function in the period of at least 30 (thirty) days after all the necessary documents were

completely and correctly submitted; this shows that OJK has not comply with this provision

as they haven’t given their approval since September 2013 until today, and raised a question

on whether or not KKB-BUMN as the Holding Function is then already valid if such response

from OJK aren’t yet given in the required time period.

As an additional reference, although the option of Consolidation offered by The 2012 SPP

might cause several legal implications, if we trace it back to The Bank Mandiri Merger Case

back in 1999, when in 2001, it was then declared that Bank Mandiri’s asset is 24.37% of the

total national banking asset41

; this was allowed for The Government although Article 17 of

Government Regulation No. 70 Year 1992 jo. BI BOD Decree No. 32/51/KEP/DIR Year

199942

clearly prohibited the situation. In Indonesia’s Bank Restructuring back in 1998, State-

Owned Banks, which were suppose to be liquidated because its financial report are inadequate

to survive, suddenly obtained extra capital from the state’s capital participation through shares

which has been deposited and restrained in these banks which amount equals to Rp.

2.399.996.000.000,- and capital participation from the State Budget in the amount of Rp.

1.600.004.000.000,- .

Conclusion

Based on the analysis in the previous chapters, there are two key conclusions that will

answer the research questions, which becomes the focus of this research.

Firstly, although the mechanism of Consolidation may undergo a more extensive and time

consuming legal procedure as well as a more complex legal implication than the option of

Holding Function, it nonetheless will be more beneficial in the long-run since it will create a

better synergy than Holding Function in terms of providing financial stability, wider

distribution network, creating complementary products and capabilities, as well as obtaining

incentives that were not available for the option of Holding Function. The table provided

41

Agunan Samosir, “Analisis Kinerja Bank Mandiri Setelah Merger Dan Sebagai Bank Rekapitalisasi,” Kajian

Ekonomi dan Keuangan 7, no. 1 (Maret 2003): 25-26, www.fiskal.depkeu.go.id/webbkf/kajian%5CAgunan-

1.pdf . 42

Article 4 point (c) of SK DIR BI No. 32/51/KEP/DIR Year 1999 concerning the Requirements and Procedure

of Merger, Consolidation, and Acquisition of Commercial Banks.


below will summarize the main points on the comparison and contrast of Consolidation and

Holding Function in its applicability to the State-Owned Banks controlled by The

Government.

THE COMPARISON OF BENEFITS AND DISADVANTAGES OF

CONSOLIDATION AS CONTRASTED WITH THE OPTION OF HOLDING

FUNCTION

Type of Ownership

Structure Adjustment

Evaluation

Benefits Disadvantages

Consolidation 1) Obtain incentives;

temporary relief on the

fulfillment of Reserve

Requirements, extension

of time to settle the

exceeding Legal Lending

Limit, easement in

opening office branches,

and/or temporary relief

for the Good Corporate

Governance

implementation.

2) Create better synergy;

increase financial

stability, wider

distribution network, and

create complementary

products and capabilities

1) Extensive and time consuming

legal procedure; establishment of

new SOB as a result of

consolidation of SOBs under the

Government’s control

2) Infringement of maximum bank

asset requirement based on BI BOD

Decree No. 31/51/KEP/DIR Year

1999.

3) Infringement of Unfair Business

Competition based on Law No. 5

Year 1999 and Government

Regulation No. 28 Year 1999.

4) Construct a new organizational

structure; affect Manpower Rights

on termination of employment based

on Law No. 13 Year 2003.

5) Minority shareholders who

disagree with Consolidation requires

banks to prepare an enormous

amount of money to buy their

shares.

Holding Function (HF) 1) Less extensive and less

time consuming legal

procedure

2) Privilege of the

Government to be the

HF; only specific

Controlling Shareholder

can perform HF.

3) No infringement of

maximum bank asset

requirement based on BI

BOD Decree No.

31/51/KEP/DIR Year

1999

4) No infringement of

Unfair Business

1) Insufficient synergy compared to

Consolidation; only enhance

economic development by directing

resources towards specific goals

2) No incentives for HF

3) Difficulty to fulfill the obligation

of consolidating the financial report

of HF and the State-Owned Banks

which both are different legal

entities.


Competition based on

Law No. 5 Year 1999 and

Government Regulation

No. 28 Year 1999

5) Maintain same

organizational structure

of SOBs under the HF

Table 5.1

Secondly, in relation to the applicability of Single Presence Policy to the Government of

Indonesia as the Controlling Shareholder of more than one State-Owned Banks, we cannot

disregard that special treatments has often been made for The Government throughout

Indonesia’s Banking history, hence, it is likely that whatever option will be applied to these

State-Owned Banks by The Government as its Controlling Shareholder, it will most likely be

given easement, exception, amenity, and facilitation in its implementation.

Suggestion

Based on the above conclusion, the following suggestions could be given:

1. As the option of Consolidation will harm many of its stakeholders’ interests, it will be

better to use the option of Holding Function but by making improvements to it so it

would be more efficient in deriving Synergy. A well-planned Strategic Consolidation

performed through Holding Function, other than Institutional Consolidation of the

State-Owned Banks, will be a more precise decision to push State-Owned Banks to

optimalize its banking service in each of their playing field by considering other State-

Owned Bank’s strengths and weaknesses in determining its movement towards a

better efficiency in their performance. Other than the rationale above, remembering

that all four State-Owned Banks are publicly listed, they are already able to generate

funds from the stock market to strengthen their capital structure even without

consolidation their asset to one institution through Consolidation.

2. The Ministry of State-Owned Enterprise should also immediately send a letter to OJK

asking for confirmation regarding the validity of KKB-BUMN as an effective Holding

Function. The Ministrial Decree establishing KKB-BUMN explicitly stated that KKB-

BUMN will start being effective if the approval of OJK has been obtained. Yet until

today OJK has not yet approve/ respond the application within the required time

period, and yet no provision in the The 2012 SPP nor SEBI No. 5/12/DPNP provides


regulations concerning such circumstances; thus this situation creates an ambiguity

concerning the effectiveness of KKB-BUMN as a valid Holding Function.

References

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juridical analysis of the state-owned banks consolidation

Documents