News & Legal Update

From: A.M Oktarina Counsellors at Law   Contributors: Pramudya Yudhatama, S.H., Khaifa Muna Noer Uh’Dina, S.H., Raysha Alfira, S.H. Reviewer: Noverizky Tri Putra Pasaribu, S.H., L.L.M (Adv).   Background   Today, many Indonesian citizens (“WNI”) work abroad. This certainly raises new challenges, which unfortunately we often find, often Indonesian migrant workers who work abroad, get less good treatment from employers. Indonesian Migrant Workers are also found to be vulnerable victims who do not receive their rights in accordance with applicable regulations. One example that we can find is Indonesian Migrant Workers who work as crew members (“ABK”) on foreign-flagged ships, which do not receive their rights in accordance with the proper provisions, such as the security and safety of fishermen, a decent working environment, and also work contracts that are not well socialized. Thus giving rise to defects in the contract. One example is 19 crew members working in the Singapore Sea ‘tricked’ by the Employer (as the link attached). Therefore, to improve protection for ABK, Minister of Manpower Ida Fauziyah stated that the government is committed to fixing the issue of governance of placement and protection of Indonesian ABK (as the link attached­). But what about the Indonesian Migrant Workers who have been and are running now? Are existing regulations and regulations sufficient to provide protection for Indonesian Migrant Workers, and how are they implemented and monitored? Let’s look deeper into the Protection for Indonesian Migrant Workers below.   Legal Basis   The Constitution of the Republic of Indonesia Year 1945 (“UUD 1945“). Law No. 18 of 2017 concerning the Protection of Indonesian Migrant Workers (“Law No.18/2017“). Law Number 6 of 2023 concerning the Stipulation of Government Regulations in Lieu of Law Number 2 of 2022 concerning Job Creation into Law (“Law No.6/2023“). Presidential Regulation of the Republic of Indonesia Number 90 of 2019 concerning the Indonesian Migrant Workers Protection Agency (“Perpres No.90/2019“). Regulation of the Minister of Transportation of the Republic of Indonesia Number PM 59 of 2021 concerning the Implementation of Business Service Related to Transportation in Waters (“PM No.59/2021“) Government Regulation of the Republic of Indonesia Number 22 of 2022 concerning the Placement and Protection of Migrant Commercial Vessel Crews and Migrant Fishing Vessel Crews (“PP No.22/2022“).   We need to know in advance what is meant by the Protection of Indonesian Migrant Workers by definition refers to Article 1 point 5 of Law No.18/2017 which reads:   “Protection of Indonesian Migrant Workers is all efforts to protect the interests of prospective Indonesian Migrant Workers and/or Indonesian Migrant Workers and their families in realizing the guaranteed fulfillment of their rights in all activities before work, during work, and after work in legal, economic, and social aspects“.   As stated in Article 3 of Law No.18/2017 the Protection of Indonesian Migrant Workers  aims to ensure the fulfillment and enforcement of human rights as citizens and Indonesian Migrant Workers, and ensure the legal, economic, and social protection of Indonesian Migrant Workers and their families.   Indonesian Migrant Workers certainly also get some protection provided during work as stipulated in Article 21 of Law No.18/2017 which reads:   (1) “Protection During Work as referred to in Article 7 point b includes: data collection and registration by the Manpower Attaché or designated foreign service official; monitoring and evaluation of the Employer, employment, and working conditions; facilitation of the fulfillment of the rights of Indonesian Migrant Workers; facilitation of settlement of labor cases; provision of consular services; assistance, mediation, advocacy, and provision of legal assistance in the form of facilitation of advocate services by the Central Government and/or Representatives of the Republic of Indonesia and guardianship in accordance with local laws; coaching of Indonesian Migrant Workers; and facilitation of repatriation.   (2) Protection of Indonesian Migrant Workers during work as referred to in paragraph (1) shall be carried out by not taking over the criminal and/or civil responsibility of Indonesian Migrant Workers and shall be carried out in accordance with the provisions of laws and regulations, laws of the destination country of placement, and international laws and customs“.   In contrast, the Protection of Migrant Workers who have completed their duties and no longer work has also been regulated in Article 24 of Law No. 18/2017 which reads:   (1) “Protection After Work as referred to in Article 7 point c includes: facilitation of return to the area of origin; settlement of unfulfilled rights of Indonesian Migrant Workers; facilitation of the management of Indonesian Migrant Workers who are sick and deceased; social rehabilitation and reintegration of Sosiai; and empowerment of Indonesian Migrant Workers and their families.   (2) Protection after employment as referred to in paragraph (1) shall be carried out by the Central Government together with the Regional Government”.   Based on this, Indonesian Migrant Workers who will work abroad have requirements that must be met as stated in Article 5 of Law No.18/2017, namely being at least 18 (eighteen) years old, having competence, being physically and mentally healthy, registered and having a Social Security membership number, and having the required complete documents. Not only that, Indonesian Migrant Workers also have the obligation to obey laws and regulations, both domestically and in the destination country of placement, respect the customs or customs that apply in the destination country of placement, obey and carry out their work in accordance with the Work Agreement, and report the arrival, whereabouts, and return of Indonesian Migrant Workers to the Representative of the Republic of Indonesia in the destination country of placement. As stated in Article 6 paragraph 2 of Law No.18/2017.   Related to the implementation of the placement of Indonesian Migrant Workers abroad consists of Agencies, Indonesian Migrant Worker Placement Companies or companies that place Indonesian Migrant Workers for the benefit of their own companies. The placement of Indonesian Migrant Workers by the Agency is carried out on the basis of a written agreement between the government and the government of the country Employer of Indonesian Migrant Workers or Employers incorporated in

Image Source : https://img.freepik.com/free-vector/hand-drawn-flat-design-infertility- illustration_232149367794.jpg?w=740&t=st=1696496630~exp=1696497230~hmac=ba5a4eb ad88825f4c47aba58903245f7cf6bd775c460628baeae9ed7012539f1   From: A.M Oktarina Counsellors at Law Contributors: Pramudya Yudhatama, S.H., Putri Shaquila, S.H., Khaifa Muna Noer Uh’Dina, S.H., Raysha Alfira, S.H. Reviewer: Noverizky Tri Putra Pasaribu, S.H., L.L.M (Adv)., Ricki Rachmad Aulia Nasution, S.H.     A.    Background Health services are very important as something that is needed by humans. In Indonesia, there are many malpractice acts where it is carried out by unscrupulous health workers and hospitals as service providers that can cause the death of a patient who is a victim of malpractice. Some time ago, there was an incident of malpractice that happened to a     7-year-old child with a brain stem death diagnosed after undergoing tonsil surgery at a hospital in Bekasi city, the victim of the malpractice could not be saved and has been declared dead, with the occurrence of the malpractice event the victim’s family reported parties related to the alleged malpractice that occurred to the Police of Metro Jaya Regional (The news link is attached as follows). With malpractice acts committed by health workers and related hospitals, it is necessary to have legal protection for victims and sanctions that can be given to related parties, so what regulations regulate sanctions for these malpractice acts and what kind of legal protection can be provided to victims? Let’s look at it further.   B.    Legal Basis Criminal Code (“KUHP“) Constitution of the Republic of Indonesia Year 1945 2nd Amendment (“1945 Constitution“) The Universal Declaration of Human Rights of 1948 (“UDHR 1948“) Law Number 8 of 1999 concerning Consumer Protection (“Law 8/1999“) Law Number 31 of 2014 concerning Amendments to Law Number 13 of 2006 concerning the Protection of Witnesses and Victims (“Law No.31/2014“) Law Number 17 of 2023 concerning Health (“Law 17/2023“)     Health services are used to meet health needs by providing health facilities periodically to the community. Basically, humans have basic rights to obtain health facilities as mentioned in Article 25 of UDHR 1948, which states: “Every human being has the right to a level of living adequate for the health and well- being of himself or his family, including the right to food, clothing, housing, health care, necessary social services, and the right to security in the event of unemployment, illness, disability, widowhood, old age or other circumstances resulting in deprivation of income in circumstances beyond his control“.     With the existence of basic human rights that have been mentioned in the 1948 UDHR, in Indonesia there are also regulations that regulate the obligation of the state to give its people the right to get health which is seen as the basis for the application of Human Rights (“HAM“) which is contained in Article 28H of the 1945 Constitution after the 2nd amendment which states as follows: “Everyone has the right to live a prosperous life physically and mentally, to reside, and to get a good and healthy living environment and the right to health services“.     With the non-fulfillment of the right to health obtained by the people from the state, the community will experience illness and cause their activities in earning a living and livelihood will be hampered. Based on Article 4 paragraph (1) of Law No. 17/2023 mentions the specific rights obtained by the community which states as follows: “Everyone has the right: live a healthy life physically, mentally, and socially; obtain information and education on balanced and responsible health; get safe, quality, and affordable Health Services in order to realize the highest degree of Health; obtain health care in accordance with health service standards; obtaining alses over Health Resources; determine for yourself the Health Services needed by himself independently and responsibly; obtain a healthy environment for the achievement of health degrees; accept or refuse some or all of the relief measures that will be given to him after receiving and understanding the complete information about such measures; obtain the confidentiality of his/her personal Health data and information; obtain information about his/her health data, including actions and treatments he has received or will receive from Medical Personnel and/or Health Personnel; and get protection from health “   Therefore, everyone has the right to get their rights along with health facilities as provided by the state. The definition of health itself has been explained in Article 1 number (1) of Law No. 17/2023 which states as follows: “Health is a person’s state of health, whether physically, mentally, or socially and not simply free from disease to enable him to live a productive life.”     With the health rights that must be obtained by the community from health workers and hospitals who have obligations as stated in Article 5 number (1) of Law No. 17/2023 which states: “Everyone is obligated to: realize, maintain, and improve the highest possible public maintain and improve the degree of health for others for whom he is responsible; respect the rights of others in the pursuit of a healthy environment; adopt healthy living behaviors and respect the health rights of others; comply with outbreak or outbreak response activities; and     follow the health insurance program in the national social security”     Basically, if health workers and hospitals have been declared to take action against patients who are victims of malpractice. This needs to be a further concern. The victim himself according to Article 1 number (3) of Law No.31/2014, is defined as follows: “A victim is a person who experiences physical, mental, and/or economic loss resulting from a criminal act.”     With the definition of the victim above, that with the publication of the alleged malpractice committed to the victim of malpractice, it is stated that it was not done based on the will of the victim and also the victim’s family, therefore the victim has the right to sue and get legal protection from actions that have lost the life.     Victims of malpractice have the rights as mentioned in Article 5 paragraph (1) number (a) of Law

From: A.M Oktarina Counsellors at Law Contributors: Pramudya Yudhatama, S.H., Khaifa Muna Noer Uh’Dina, S.H., Raysha Alfira, S.H., Putri Shaquila, S.H. Reviewer: Noverizky Tri Putra Pasaribu, S.H., L.L.M (Adv).   Background   Nowadays, there are many companies in practice that want to list their names for Initial Public Offering (“IPO“), that is one example such as, launching from the news “Multi Garam Utama (FOLK) Mau IPO, Incar Dana Publik Rp 60 M” (source: https://www.cnbcindonesia.com/market/20230720072955-17-455703/multi-garam utama–folk–mau-ipo-incar-dana-publik-rp-60-m), and also “IPO, Ingria Pratama Bidik Dana sebesar Rp 353, 9 Miliar” (source: https://economy.okezone.com/read/2023/07/20/278/2849194/ipo-ingria-pratama-bidik-dana-rp353-9-miliar), who will conduct their IPO as we know, the IPO system itself provides many benefits for companies if they conduct an IPO, but keep in mind the mechanism and procedure in registering a company to conduct an IPO is not that simple.  Of course, there are still many companies that want to IPO, but have not been able to meet the requirements and/ or mechanisms of their own IPO that are also regulated in various related regulations. So what are the mechanisms and conditions for companies that want to conduct an IPO?   Legal Basis   Law Number 8 of 1995 concerning Capital Market (“Law 8/1995“). Law Number 40 of 2007 concerning Limited Liability Companies (“Law 40/2007“). Law Number 4 of 2023 concerning the Development and Strengthening of the Financial Sector (“Law 4/2023“). Financial Services Authority Regulation Number 76/POJK.04/2017 concerning Public Offering by Shareholders (“POJK 76/POJK.04/2017“). Regulation of the Financial Services Authority of the Republic of Indonesia Number 41/POJK.04/2020 concerning the Implementation of Electronic Public Offerings of Equity, Debt Securities, and/or Sukuk (“POJK 41/POJK.04/2020“).   Although we are familiar with hearing IPO, we need to know based on the IPO (Go Public) Guide from the official website of the Indonesia Stock Exchange (“IDX”), namely IPO means a solution from the capital market for companies to obtain funding through the offering of part of the company’s shares to the public or commonly called going public. It may also be interpreted as a public offering that means securities offering activities carried out by issuers to sell securities to the public based on the procedures regulated in the Law on the Capital Market and it is implementing regulations, that we may find listed in Article 1 paragraph (1) POJK 41/POJK.04/2020. This process also makes the company transform from a closed company to a public company that will be managed better, more professionally and transparently.   In terms of practice, the IPO mechanism involves several other agencies besides the IDX, and has its own interrelationships. The implementation of these regulations is also more or less found in institutions such as the Financial Services Authority (“OJK”) and the Capital Market Supervisory Agency (“Bapepam“).   Then in carrying out the IPO process there are several requirements and procedurals that must be met first. In the provisions of POJK 76/POJK.04/2017 Article 1 paragraph 3, that there are provisions for the definition of the number of shares in becoming a public company, that reads:   “A Public Company is a company whose shares have been owned by at least 300 (three hundred) shareholders and have a paid-up capital of at least IDR 3,000,000,000.00 (three billion rupiah) or a number of shareholders and paid-up capital determined by Government Regulation“.   And it has also been regulated in Law 40/2007 Article 1 number 8:   “A Public Company is a Company that meets the criteria for the number of shareholders and paid-up capital in accordance with the provisions of laws and regulations in the field of capital market“.   So what is the mechanism? in terms of procedures for submitting IPO registration statements, it has been regulated as follows:   “In conducting a public offering, it is mandatory to submit a registration statement to the OJK by submitting documents, namely a cover letter for the registration statement and prospectus. Shareholders or public companies are responsible for the completeness of the registration statement documents registered with OJK. Shareholders or public companies can make an initial offer since the registration statement is submitted to OJK. In making an initial offer, the registration statement letter must contain all information in the prospectus submitted to OJK. Announce the prospectus of a public offering of shares owned by issuers or public companies since submitting a registration statement to OJK with proof of announcement that must be submitted to OJK no later than the end of the 2nd (second) working day after the announcement. If there is improvement or additional information in the prospectus, the issuer or public company must announce no later than 2 (two) working days from the effective registration statement to OJK. A public offering can only be made if the registration statement is effective on the basis of the lapse of 45 days from the date the registration statement is received by OJK and from the date of the last amendment submitted by the issuer or public company or requested by OJK. Upon the effectiveness of the registration statement and before the commencement of the public offering period, public companies are obliged to provide a prospectus. The public offering period is carried out within a period of no less than 3 working days. Submit a report on the results of a public offering by issuers or public companies to OJK no later than 10 (ten) working days. If the number of orders during the stock offering period exceeds the number of shares offered, shareholders who make a Public Offering in allotment must give priority to share orders made by shareholders of the issuer or existing public company. If there are remaining shares, the issuer or public company must make proportional allotment to bookers who are not shareholders of the issuer or public company. In the case of allotment of shares for a public offering by issuers or public companies, it must be completed no later than 2 (two) working days after the end of the public offering period. In the event that there is a refund for the share purchase order that

From: A.M Oktarina Counsellors at Law Contributors: Pramudya Yudhatama, S.H., Khaifa Muna Noer Uh’Dina, S.H., Raysha Alfira, S.H., Putri Shaquila, S.H. Reviewer: Noverizky Tri Putra Pasaribu, S.H., L.L.M (Adv).   Background In recent times, there have often been companies that cannot survive when they experience destruction and / or failure in running their business and business and then decide to carry out Liquidation and / or Bankruptcy for the company. However, as we know, to carry out Liquidation and Bankruptcy requires requirements and procedures that must be fulfilled first by the company. Then what kind of steps must be taken by the company to carry out Liquidation and also Bankruptcy and what is the difference between Liquidation and Bankruptcy?   Legal Basis Law Number 40 of 2007 concerning Limited Liability Companies (“UUPT“). Law Number 37 of 2004 concerning Bankruptcy and Suspension of Payment (“UUK-PKPU”). Regulation of the Minister of Finance of the Republic of Indonesia Number 272/PMk.05/2014 concerning the Implementation of Liquidation of Accounting Entities and Reporting Entities at State Ministries/Institutions (“Permenkeu No. 272/PMK.05/2014“). Indonesian Civil Code (“Civil Code“).   Before diving further into the mechanism of bankruptcy and liquidation, by definition bankruptcy itself refers to Article 1 paragraph (1) of the Law that reads “Insolvency is a general confiscation of all assets of the Insolvent Debtor whose management and settlement is carried out by the Curator under the supervision of the Supervising Judge as stipulated in this Law.” And also the definition of liquidation, namely  the act of settling all assets and liabilities as a result of the termination / dissolution of accounting entities and / or reporting entities at state ministries / institutions, referring to Permenkeu No.272/PMK.05/2014.   Based on the results of our research there is a difference between liquidation and bankruptcy, it includes regulations, conditions, legal consequences, authorities and others. So what are the differences? Let’s look at the table below:   DIFFERENCE LIQUIDATION BANKRUPTCY Regulation UUPT UUK-PKPU   Condition Some conditions and mechanisms for the Liquidation process: –          Based on the decision of the GMS and based on the determination of the court; –          Companies that have been declared bankrupt are in a state of insolvency as stipulated in the Law on Bankruptcy and Suspension of Debt Payment Obligations; or –          the revocation of the Company’s business license thus requiring the Company to liquidate in accordance with the provisions of laws and regulations. –          must be followed by liquidation carried out by the liquidator or curator; –          The Company cannot take legal action, unless it is necessary to settle all the Company’s affairs in the context of liquidation. –          In the event that the dissolution occurs on the basis of a decision GMS, the period of establishment of that is stipulated in The articles of association have expired or are repealed bankruptcy based on a commercial court decision and GMS does not appoint liquidators, the Board of Directors acts as Liquidator. (Vide Article 142 paragraph (1), paragraph (2) and paragraph (3) of the PT Law). That the conditions for the occurrence of the mechanism or process of Insolvency must be fulfilled 2 elements: –          There are 2 (two) or more creditors; –          There is 1 (one) debt that is due or due and collectible that is not paid by the debtor. “A debtor who has two or more Creditors and does not pay in full at least one debt that has fallen due and can be collected, is declared bankrupt by a decision of the Court, either on his own application or on the application of one or more of his creditors.” (Vide Article 2 paragraph (1) UUK-PKPU).   Application Procedure –          Announcing Indonesian newspapers and state news, (“BNRI”) followed by notifying the Ministry of Law and Human Rights (“Kemenkunham“) to be recorded in the company’s register that the company is in liquidation.   –          In the announcement of the newspaper and BNRI are required to add the phrase “in liquidation” in the newspaper that has been created on behalf of the company that will carry out the liquidation process.   –          The liquidator must also notify the Minister about the plan to distribute the liquidated assets by notifying by registered letter to the relevant Minister, the payment of the remaining liquidated assets to shareholders; and other actions that need to be taken in the implementation of wealth clearance.   –          After the expiration of 90 days of this second announcement, the liquidator can settle by selling assets that have previously been assessed with the services of an independent appraiser followed by distributing these assets to their creditors on the basis of pari passu pro rata parte.   –          Conduct GMS on the accountability of the liquidation process that has been carried out.   –          In the event that the GMS accepts accountability for the liquidation process that has been carried out, it is followed by an announcement to the newspaper that is then followed by a notification to the Minister that the liquidation process has ended.   –          In the event that the announcement has been made, the Minister will record the expiration of the company’s legal entity status and remove the company’s name from the list of companies followed by an announcement in the State Gazette of the Republic of Indonesia. (Vide Article 147 paragraph (1), Article 143 paragraph (2), Article 149 paragraph (1), Article 152 paragraph (1), Article 152 paragraph (3), Article 152 paragraph (5) j.o Article 152 paragraph (8) of the Law and Article 1131 jo.1132 of the Civil Code)   –          The application for bankruptcy declaration is submitted to the Commercial Court and those entitled to file it include creditors, debtors, Bank Indonesia, Minister of Finance, Capital Market Supervisory Agency and prosecutors in the public interest.   –          The application for bankruptcy statement that has been received by the court will be processed through an examination hearing and no later than the bankruptcy decision must be read 60 (sixty) days after the date of registration of the bankruptcy statement