Big debtors cleared
The Indonesian Bank Restructuring Agency (IBRA), which will entirely shut down its operations later this month, has been busy pressuring large debtors to settle their debts to the government. More than 20 of the estimated 38 large debtors who were formerly the majority shareholders in the banks that suffered insolvency in 1998 and 1999 have thus far signed closing agreements with the government to resolve once and for all their debts.
Sjamsul Nursalim, former controlling owner of the now defunct Bank Dagang Nasional Indonesia and the Gajah Tunggal business group, signed a closing agreement last week after a government audit concluded that the assets he had pledged in 1999 to settle his debts had legally been cleared and were considered sufficient to settle his Rp 28.5 trillion (US$3.35 billion) in debt.
Mohammad "Bob" Hasan, IBRA said, would also soon be entitled to a closing agreement after he pledged additional assets to settle his debts of Rp 5.34 trillion.
A closing agreement, which automatically releases and discharges the debtor from all civil and criminal liability in respect of their debts, is concluded with former bank owners who signed shareholder settlement agreements with the government in 1998 and 1999 to settle their debts. These large debtors owed an estimated equivalent of almost US$15 billion. But such a final clearance document is issued only after a government audit ascertains that the value of the assets pledged by the debtors is sufficient and their legal status is clear.
However insulting these deals granting impunity may be to the public's sense of justice, they are legally the right measure. The government is legally bound to honor the sanctity of any contracts it has signed as long as the other contractual parties also fulfill their part of the deal.
It is now futile, though, to debate the shareholder settlement agreements, which were hurriedly concluded by the B. J. Habibie administration with the largest debtors, apparently out of fear that further delays would allow the debtors to strip most of their assets and transfer them overseas.
The provisions that automatically release and discharge the former bank owners of all civil and criminal liability related to violations of the banking laws once they have resolved all their debts may now appear legally irrational, but they seem to have been the only deal the government could then offer to be able to legally tie up the remaining assets of the debtors.
One should remember that the nation was mired in the height of its multidimensional crisis between 1998 and late 1999, and what the government did then should be judged against a background of the crisis rather than normal conditions.
It is nevertheless mind-boggling to see that very few of the uncooperative debtors have so far been brought to justice even though many of them have long been accused of committing banking crimes and other forms of business fraud.
The government had threatened resolute legal action as early as 2000, claiming that most of the 38 large debtors had been uncooperative, had failed to fulfill the commitments stipulated in their debt-settlement accords and that the value of the assets they pledged to the government seemed to have been grossly overstated. But, the law enforcement agencies have so far failed miserably to produce solid legal evidence proving that the debtors had signed the agreements in bad faith or had defaulted on their commitments.
Only legal evidence of noncompliance and bad faith will enable the government to declare the original debt-settlement accords void and to bring non-cooperative debtors to justice. Inadequate evidence would only embroil the government and the debtors in protracted legal battles, which could block the sales of the pledged assets or put in legal limbo the assets which had been sold to new investors with devastating results for the economy.
The biggest challenge now is to enforce the debt-settlement agreements so as to fully satisfy the public's sense of economic justice. This will be achieved only if the debt resolution process is transparent and credible and gains a relatively high rate of recovery.
Out-of-court debt settlements that are perceived to excessively favor the debtors will only plant a time bomb that could explode into social and political discontent with damaging repercussions for the economy.
IBRA should be very careful in assessing whether the debtors have fully implemented what the former bank owners have agreed on and pledged in their shareholder settlement agreements before clearing them from further liabilities, and releasing and discharging them the possibility of legal action in the criminal or civil courts based on the closing agreements.
Closing agreements with debtors that are seen to be unfair or which were hurriedly concluded mainly to meet the April 30 deadline for the final winding-up of IBRA's operations could plunge the deals into a legal limbo after the new government comes to power in October.
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