President Prabowo Subianto has issued Presidential Decree Number 4 of\n2026 (Keppres No.\u00a04\/2026) establishing a Task Force for the Acceleration\nof Government Programmes to Support Increased Economic Growth. The\npurpose of Keppres No.\u00a04\/2026 is to focus on accelerating the\nimplementation of economic packages and unravelling investment and\nlicensing barriers. The issuance of Keppres No.\u00a04\/2026 follows the\nweakening of the rupiah exchange rate, the decline in the Composite\nStock Price Index (IHSG), and several other investment problems\nindicating that many investment issues need to be addressed.<\/p>\n
Referring to the World Bank report on the ease of doing business in\nIndonesia, the main investment problems in Indonesia are legal certainty\nrelated to licensing and law enforcement. These two issues are the\nprimary factors behind the stagnation and weakening of the ease of doing\nbusiness index, which serves as a reference for investors. This means\nthat both issues indeed require government attention.<\/p>\n
Meanwhile, referring to the index released in early 2026 by the World\nJustice Project, legal certainty in Indonesia in 2025 was very low, with\nan index of 5.5, whereas the lowest country index is 4.0 and the highest\nis 9.0. The survey conducted by the World Justice Project is not the\nonly index, but several similar surveys show more or less the same\nindex, so this issue also requires serious attention.<\/p>\n
Tracing back at least ten years, these two issues have been classic\nproblems since the era of President Joko Widodo, and even previous\npresidents. During President Joko Widodo\u2019s tenure, deregulation,\nlicensing, and law enforcement were also \u2018classic\u2019 investment problems\nin Indonesia. At that time, economic acceleration and deregulation\npackages were also issued during President Joko Widodo\u2019s first term.<\/p>\n
The suboptimal performance of these packages was then followed up\nwith various electronic-based licensing regulations known as the online\nsingle submission (OSS) system, which has never functioned perfectly and\nhas continually undergone system, model, and technical improvements to\nthis day. The culmination was the creation of the omnibus law, the Job\nCreation Law, which was expected to be a \u2018game changer\u2019, but in fact the\nJob Creation Law \u2018withered before it bloomed\u2019 and did not make a\nsignificant contribution. Currently, the omnibus Job Creation Law is in\na \u2018tattered\u2019 condition because many articles have been annulled and\namended by the Constitutional Court.<\/p>\n
SOLUTION<\/p>\n
The question then is how to solve the existing problems so that ease\nof doing business can be realised and investor confidence can be built.\nThe problems hampering investment have now been identified, namely\nlicensing issues and legal certainty issues in relation to law\nenforcement. The optimism that can be built is that at least the\nproblems have been identified and validated by various credible surveys\nand reports.<\/p>\n
The spirit to simplify licensing as a form of realising ease of doing\nbusiness in Indonesia was initially set out in Presidential Regulation\nNumber 91 of 2017 on the Acceleration of Business Implementation.\nGovernment Regulation Number 24 of 2018 on Electronically Integrated\nBusiness Licensing Services and Presidential Instruction Number 7 of\n2019 on the Acceleration of Ease of Doing Business constitute the\noperational foundation of Presidential Regulation Number 91 of 2017. In\nthis regard, one way to realise ease of doing business is to use an\nelectronically integrated business licensing service model.<\/p>\n
First, regarding the classic licensing problem, the difficulty and\nlength of licensing procedures in Indonesia, the solution is actually to\nrealise a proper OSS-based licensing system. There are two essences of\nOSS-based licensing: online, meaning all licensing processes can be\ncarried out online and in an integrated manner so that they are easily\naccessible while simultaneously resolving bureaucratic problems in\nlicensing procedures. Single submission itself means that data uploaded,\nsent, and received can function identically and be accepted across\nagencies, given that licensing procedures in Indonesia often involve\nmany institutions.<\/p>\n
The meaning of single submission that must also be realised is moving\ntowards integrated, unified licensing procedures and realising data\nsharing between agencies. Without integrated licensing procedures, ease\nof doing business cannot be realised because investors will still have\nto deal with lengthy licensing bureaucracy full of uncertainty.<\/p>\n
These efforts need to be accompanied by reducing the number of\nlicences that must be obtained. This issue was once a focus when the\nomnibus Job Creation Law was being drafted. Efforts to shorten the\nprocedures (duration) of licensing stages can be realised if OSS-based\nlicensing can accommodate data sharing functions between agencies,\nthereby unravelling the lengthy bureaucracy in licensing procedures.<\/p>\n
Likewise, data sharing is also seen as capable of realising legal\ncertainty because it provides the same data foundation for every agency\nin licensing procedures. Data sharing between agencies can also be used\nto realise the integrated nature of licensing procedures, meaning\ninvestors do not need to obtain repetitive licences from different\nagencies, so both the number of licences required and the procedural\nstages of licensing can be reduced through data sharing between\nagencies.<\/p>\n
The second problem is legal certainty in relation to law enforcement.\nIn this matter, the focus is on how rules and laws can be applied by law\nenforcement officials to business activities and how these rules are\nused as they should be. Legal certainty through ideal law enforcement\noccurs when laws and regulations are enforced effectively, including the\nrealisation of transparent and fast administrative processes in law\nenforcement.<\/p>\n
Likewise, efforts to improve legal certainty in relation to law\nenforcement involve using the business judgement rule (BJR) doctrine to\nassess whether an investment process falls within the business and civil\ndomain or enters the criminal domain that must be resolved through\ncriminal law. If the BJR doctrine is set aside and criminal measures are\nused carelessly, this will become a worrying condition for both domestic\nand global investors.<\/p>\n
INVESTMENT RISK IS NOT CRIMINAL<\/p>\n
Recently, a debate has emerged in society about whether losses in\nbusiness or investment fall within the civil or criminal domain. This\nincludes defaults on credit agreements provided by banks owned by\nstate-owned enterprises, whether they fall within the civil or criminal\ndomain. Some parties consider losses as business risks whose\naccountability is civil in nature, while others consider that losses to\nthe state by state-owned enterprises have criminal consequences and fall\nwithin the corruption domain.<\/p>\n
To assess whether a loss constitutes a risk or whether there was bad\nintent to harm another party, it must be viewed comprehensively as a\nseries of events. This means it cannot be immediately determined that a\nloss falls within civil or criminal resolution. The terminology of risk\nis not specifically regulated in the Civil Code, but various legal\nliterature explains that risk is a condition not expected by the\nparties.<\/p>\n
Furthermore, risk can be divided into risks that can be anticipated\nby the parties and risks that cannot be anticipated by the parties. The\nqualification of a condition as a risk places it within the civil domain\nwith no bad intent in the criminal context. This requires that the\nassessment of whether a condition or loss constitutes a risk or not must\nbe evaluated comprehensively from before the agreement was made until\nthe occurrence of the loss.<\/p>\n
This means there are three important elements in assessing whether a\ncondition qualifies as a risk. First, an assessment of whether the\ncondition was expected or not by the parties. Second, whether the\ncondition had been anticipated by the parties at the time the agreement\nwas made; if anticipated, it means the parties had incorporated risk\nfactors into the agreement. Third, whether the condition was beyond the\nparties\u2019 anticipation based on their best knowledge. The terminology of\nrisk in business losses cannot be applied broadly, although risk must\nalso be acknowledged as an inseparable part of a business or investment,\nso that if it can later be proven that a condition or loss constitutes a\nform of risk, it must be resolved through civil mechanisms.<\/p>\n
By elaborating each element of risk in civil terms, it simultaneously\nanswers whether criminal liability attaches to the parties in a loss.\nThe first element is whether the condition was expected or not by the\nparties, meaning whether the condition or loss occurred \u2018by design\u2019 or\nwas already expected by the parties. If the condition or loss occurred\n\u2018by design\u2019, it means that from the pre-contractual stage there was\nalready intent to cause loss, thus having criminal consequences.\nConversely, if the condition or loss was not \u2018by design\u2019 or was not\nexpected by the parties, it falls within the civil domain and its\nresolution is civil, not criminal.<\/p>\n
Second, whether the condition or loss was anticipated by the parties.\nThis needs to be proven by the existence of risk clauses in the\nagreement; it is common in credit agreements and investment agreements\nto have risk clauses or risk limitation clauses. This means that if the\ncondition or loss was not \u2018by design\u2019 and was agreed upon by the parties\nin the agreement, then the attached responsibility and resolution are\ncivil because they have been contractually regulated, as long as no bad\nintent is found manifested in concrete actions causing the loss. This\nincludes the absence of any party benefiting from the condition or the\noccurrence of the loss.<\/p>\n
Third, if the condition or loss was not anticipated by the parties,\nthis also does not automatically constitute a criminal act. Referring to\nthe corporate doctrine of fiduciary duty of care, as long as the\nmanagement of the business entity and\/or the parties have made decisions\nwith sufficient data, proper processes, and appropriate due diligence,\nthen the unanticipated risk is reasonably beyond the parties\u2019\nanticipation. These three elements must be fulfilled cumulatively for\nthe risk to fall within the civil domain.<\/p>\n
BUSINESS JUDGEMENT RULE DOCTRINE<\/p>\n
The business judgement rule (BJR) doctrine has recently appeared\nfrequently in various arguments in criminal courts. The BJR legal\ndoctrine is actually a corporate law doctrine used to release business\nentity management from legal liability in the event of losses. The BJR\nlegal doctrine is a continuation of the corporate doctrine of fiduciary\nduty of care regarding whether or not legal liability attaches to\nbusiness entity management or business decision-makers in a loss\nsituation.<\/p>\n
The BJR legal doctrine is understood as a rule for decision-makers\nwho make decisions based on best practices for business interests at the\ntime the decision is made. The BJR legal doctrine views liability for\nlosses based on the three elements of risk fulfilment as described\nabove. This means that if it can be proven that the loss was \u2018by design\u2019\nand intentional, or if a party is found to have benefited from the loss,\nthen the BJR doctrine cannot apply.<\/p>\n
The essence of the BJR legal doctrine is actually simple: \u2018business\u2019\nmeans using the best measure for business interests. \u2018Judgement\u2019 means\nthe assessment or decision is based on the needs or for the good of the\nbusiness. Whether the decision was carried out with proper consideration\nand actions for the good of the business at the time the decision was\nmade, meaning the assessment is made at the time the decision was taken,\nnot retroactively when the loss occurred (using an assessment when the\nbusiness condition already shows losses).<\/p>\n
Simply put, if no intentional loss (by design) is found and the\ndecision was taken properly with no party gaining profit or benefit from\nthe loss, then even if a business loss occurs, it falls within the civil\ndomain and must be resolved through civil legal mechanisms. The measure\nof risk and the BJR doctrine have provided clear and firm boundaries\nregarding liability in the civil domain and the criminal domain.<\/p>\n
Resolution through criminal mechanisms needs to be carried out with\ncaution and selectivity regarding business losses, given that not all\nbusiness losses have criminal consequences. The incorrect and excessive\napplication of criminal mechanisms is feared to create negative\nsentiment in the current investment climate.<\/p>\n
The public\u2019s need for financial services is increasingly diverse,\nranging from life and health protection, general insurance, investment\nmanagement, to pension fund preparation.<\/p>\n
The private sector plays an important role in the economic\ndevelopment of a country.<\/p>\n
Minister of Investment and Downstreaming and CEO of Danantara, Rosan\nPerkasa Roeslani, mentioned Pupuk Indonesia\u2019s investment plan to build a\nurea fertiliser production facility in Vladivostok.<\/p>\n
The Ministry of Investment and Downstreaming is preparing a roadmap\nfor 28 strategic commodities until 2045 with an investment potential of\nUS$618 billion for economic added value.<\/p>\n
Finance Minister Purbaya Yudhi Sadewa is targeting economic growth of\n6% next year without raising tax rates, focusing on investment and\nconsumption.<\/p>\n
TAUD protested the transfer of the handling of the acid attack case\nagainst activist Andrie Yunus from Polda Metro Jaya to the Military\nPolice Centre (Puspom) of the TNI.<\/p>\n
The threat of imprisonment is a minimum of 3 (three) years and a\nmaximum of 15 (fifteen) years, and a fine of at least Rp 200,000,000 and\nat most Rp 5,000,000,000.<\/p>\n
The KPK has asked the Directorate General of Immigration to extend\nthe detention of former Minister of Religious Affairs Yaqut Cholil\nQoumas and former Special Staff Isfan Abidal Aziz in connection with\nalleged corruption in the allocation of hajj quotas.<\/p>\n
The police have officially halted the investigation into the death of\nsocial media influencer Lula Lahfah, who was found lifeless in her\napartment in the South Jakarta area.<\/p>\n
The search related to the Sudewo case was carried out within a week.\nThe KPK also found money allegedly kept for the inactive Pati\nRegent.<\/p>", "url": "https:\/\/jawawa.id\/newsitem\/unravelling-investment-problems-1788735025", "image": "" }, "sponsor": "Okusi Associates", "sponsor_url": "https:\/\/okusiassociates.com" }