Sources of observation:
- - Law 40 of 2007 (and the implementing regulations
consisting in such Law (only): Government Regulation for procedure in naming
the company, authorized capital & asset value regulation, CSR,
merger-consolidation-acquisition, separation, and fee to obtain government’s archives
of related company), vide Law 01 of 1995;
- - Indonesian Business Code / KUHD (Wetboek van
Koophandel) of Stb. 1847;
- - Court verdicts
Summary:
There is no specific regulation under
Company Law to regulate the condition of “silent” director in BoD meeting, but /
because of that, to put in concern about the related potential conditions under:
-
Its resolutions / minute of meeting (Article 100
of Company Law, below) & its attendance list’s signatory or any significant
document, whether he / she sign them or not, which potentially reflect such
conditions (of “silent” director) and (to find) further potential effects;
- The annual report which reflecting BoD’s
resolutions / corporate actions (Article 67 of Company Law, below), whether he /
she sign, or not, and give the written reasoning, or not which is considered to
have approved its content (of corporate actions) and furthermore, potentially
reflects such condition (of “silent” director) and (to find) further potential
effects;
- The event of buy back of shares’ action being
held in contrary to the regulation, then the responsibility upon the losses
suffered by the good faith shareholder to reflect: be borne on the BoD
jointly/collectively (Article 37 of
Company Law, below),
- The event of interim dividend unable to be
returned upon the losses suffered by the company in the end of financial year
to reflect: be borne on the BoD jointly/collectively (Article 72 of Company
Law, below),
That the two
above events, in connection with the condition of “silent” directors as a
member of BoD, even not (specifically) regulated, potentially reflect the BoD’s
joint liability, otherwise, the (“silent”) director can prove that he / she is
not be responsible for the losses from any mistakes and negligent causing such
losses (Article 97 of Company Law, below).
- (if any) the differentiation of assignments,
functions & authorities of each BoD member (which is in this matter
consisting the “silent” director related to the corporate actions) be based on
/ referring to the GMS’ resolutions, or if not so, on / to BoD’s resolutions.
(Article 92 of Company Law, below), which potentially reflect the
differentiation of “silent” director’s tasks and (to find) further potential
effects;
In general, on the BoD member(s)
(including “silent” director, in this matter), the principle of fiduciary
duties exist that BoD member(s) must always be trusted / bona fide and honest in performing their / his duties (Book of Hukum
Perseroan Terbatas by M. Yahya Harahap), such duties and authorities be limited
and subject to the AoA and Company Law ‘s provisions (Article 92(2) below), e.g.
if certain actions require GMS’ approval), besides the discretion or authority
of BoD member(s) shall respect the ultra
vires doctrine, to restrict the unauthorized acts (Jurnal Hukum Bisnis’
article “Tanggung Jawab Pribadi Direksi & Komisaris” by Sutan Remi
Sjahdeni), at last, the company law provides the verification instrument for
BoD member(s)’ responsibility upon such duties, discretions or authorities, if
BoD member(s) make mistakes and been negligent, they / he shall be responsible
for losses suffered to the company, except they / he can prove otherwise.
As far the observation, have not
found the actual / relevant jurisprudence, but there are jurisprudences to
contain substances in relation to BoD / “silent” director situation as follows.
Jurisprudence of Reg.
367/K/Sip/1972 à
Supreme Court contends to the High Court’s decision that the director of the
bank (in this matter issued the banker’s empty-cheque on behalf of the bank
under the internal procedure), can not be found guilty merely for his own
actions, but partially to the bank’s responsibility, because then was proved
that such action’s exercised with no duress or any deceit/fraud.
Jurisprudence of Reg.01/PK/N/2004
à the responsibility of
the company’s default in bankruptcy lawsuit cannot be burden personally to the
director as a private person under the argument of his representation duty to
the company.
