Study of Stock Ownership Nominee Agreement

in Mining Business to People’s Welfare That Is Aligned for

Sustainable Development Goals

Ida Sumarsih

Doctor of Law Student, Pelita Harapan University, Jl. Jenderal Sudirman No.50, Jakarta, Indonesia

Keywords: Nominee Agreement, Mining, People’s Welfare.

Abstract: The goal for Limitation of Foreign Stock’s ownership to protect natural resources in Indonesia is not yet

optimal because of the existence of nominee agreement. Which is a form of law smuggling. So natural

resources that should be benefiting for Indonesia people’s welfare, in reality it is enjoyed by Foreign Investor.

This research is a normatif juridical research using secondary data and doing inductive analysis. From the

result of the research is concluded that law smuggling in stock ownership nominee agreement prohibition in

mining field is still exist because there is no monitoring, control, field observation, evaluation and law

enforcement for nominee agreement practices in mineral and coal mining up to beneficial ownership in

establishment and operational of mineral and coal mining business. Therefore it is needed to make a regulation

to monitor, supervise and doing law enforcement by The Energy and Mineral Resources Ministry (ESDM)

through Monitoring, Conrolling, Field Observation and Evaluation System (P3LE) towards stock ownership

nominee agreement practices in mining business so that the management of natural resources can be

benefitting for poeple’s welfare and Sustainable Development Goals (SDGs) is achieved.

1 INTRODUCTION

Since late of 2019 until now the world is going

through COVID-19 Pandemic, this pandemic also

have an impact for Indonesia Country, which is

causing the increase of poverty in Indonesia in the

yaer of 2020, as mention by Central Bureau of

Statistics (BPS), that “The percentage of people lived

in poverty on September 2020 was 10,19 percent, had

increased 0,41 percentage point to March 2020 and

increased 0,97 percentage point to September 2019.”

Also “Number of people lived in poverty on

September 2020 is 27,55 Million People, had increase

1,13 million people to March 2020 and increased 2,76

Million people to September 2019” (BPS, 2021).

The Government is trying to hold back the spike

in the poverty rate by doing all kind of efforts, one of

them is to exploit natural resourcess, especially in

mineral and coal area.

As we know Indonesia is one of the biggest

mineral and coal producer in the world (FEB UGM,

2019). Moreover, the country’s revenue from natural

resources is also large, So that’s why the country has

to optimize the mastery and management of those

natural resources which will be used for the properity

of the people.

Our constitution has already arranged the natural

resources belong to Indonesia nation, this is listed in

article 33 paragraph (3) 1945 Constitution which

reads “Earth and Water dan Natural Wealth contained

therein is shall be controlled by the state and used as

much as possible for the prosperity of the people”, As

Gustav Radbruch’s opinion that taught that law have

to have three basic principles which are : the value of

justice (philosophical aspect), the vaule of benefit

(sosiological aspect) the value of certainty (juridical

aspect). So that each rule must be returned his validity

to those 3 basic principle (Marwan, M, 2014).

The State Property Rights “contains authority to

manage, supervise and monitoring the management

or cultivation of minerals and also contain the

obligation to used it as much as possible for the

prosperity of the people. The mastery by the country

is held by the government” (H.S, Salim, 2014).

So the understanding of Natural Resources is

controlled by the state is the state have the right to

manage the natural wealth so it can be enjoyed by the

people. Where the people is “ the passion and final

Sumarsih, I.

Study of Stock Ownership Nominee Agreement in Mining Business to People’s Welfare That Is Aligned for Sustainable Development Goals.

DOI: 10.5220/0010751600003112

In Proceedings of the 1st International Conference on Emerging Issues in Humanity Studies and Social Sciences (ICE-HUMS 2021), pages 329-335

ISBN: 978-989-758-604-0

329

goal of welfare state that must be realized by the state

and Indonesia Government”. Managing natural

wealth is one of the way to achieve prosperity (Sutedi,

A, 2012)

To gain a real result for the people’s welfare,

natural resources must be managed. Management and

natural resources needed process where those

management and utilization process is doing by

business called mining. The definiton of Mining

according to Article 1 number 1 law Number 3 year

2020 about the change in Law number 4 year 2009

about mineral and coal mining (Change in Mineral

and Coal Mining Law), “Mining is part or all activity

in order to utilize and manage mineral or coal that

include general investigation, exploring, feasibility

study, construction, mining, manage and/or

purifiying or developing and/or utilizing, trasporting

and selling, also activity after mine”. As currently

mineral and coal mining is under Energy and Mineral

Natural Resources Ministry, Directorate General of

Mineral and Coal (herein after refer to as EnMR

Ministry, Coal & Mineral Dirgen).

Because the management process required big

capital, newest technology and experts in mining field

therefore foreign domination occured in mining

business. That’s why, to give benefit to the people of

Indonesia and to protect the country’s soverignty in

Natural Resources area, the government limited

foreign stock ownership in mineral and coal mining

area up to maximum 49% (Forty Nine Percent) as

arranged by Provisions of stock divestment Article

112 paragraph (1) Change of Mineral and Coal Law.

Currently has occured stock ownership nominee

agreement phenomenon in mining business to tricked

the limitation of foreign stock ownership, by using

Indonesian citizen name/s or Indonesia business

entity.

Stock ownership based on nominee agreement is

clearly a form of Law smuggling, both from the point

of Criminal State Administration or Civil State

Administration. Therefore nominee agreement is

usually done through Privately Made Deed. In the big

scale of mining, the process of making nominee

agreement is a complex negotiation activity, in

secret, time consuming and involved a lot of

institution and profession. That’s why the process of

making nominee agreement needs to be monitored,

controlled, observe in the field and evaluated by the

government so Sustainable Development Goals

(SDGs) is achieved, through monitoring system,

controlling, Observation and Evaluation (P3LE).

2 METHODS (AND MATERIALS)

Based on the background above, the writer

formulated problems such as :

1. How is the prohibition arrangement in the

stock ownership nominee agreement in the

establishment of mineral and coal mining

business entity in Indonesia?

2. How is the ideal legal arrangements for stock

ownership nominee agreement prohibition in

mining business entity in order to achieve

Sustainable Development Goals (SDGs) to

create people’s wellfare?

2.1 Type of Research

This research is done in Legal studies domain. This

research is Normatif Juridical Research. Normatif

Juridical Research. Is a legal research that puts Law

as a norm system building. Those norms among

others are : principles, norms, rule of laws and

regulations, agreements and doctrines (teachings),

(Mukti, F & Yulianto, A, 2019). Normatif Legal

Research by Soerjono Soekanto and Sri Mamudji is

also said by the term Library Research (Soerjono, S

& Sri, M, 2005).

2.1.1 Types and Data Sources

The Data Sources in Normatif Juridical Research is

by researching library materials or secondary data

(Dyah, S.O & A’an, E, 2018), that is data obtain from

data, primary source book materials, rules, principles

and concrete legal rules that apply in the Law system.

All the rules, principles and that concrete legal rules

are written rules (recorded rules) which is uphold by

the country, can be found inside applicable laws and

regulations (Teguh, P, 2019). Secondary law source

include law books written by law experts, law

dictionary, law encyclopedia, law journals, law

dissertations, law thesis, law essay, law comments

and court decision comments, etc (Dyah & A’an,

2018.

2.1.2 Data Collection Technique

Data collection technique is using library study whih

is secondary data collection technique; the source of

the data is not from the people in person but from data

or primary law source, for example; laws and

regulations, books, documents and library materials

or any other written materials which is related in an

event or spesific activity related to problems

formulated in this resaerch.

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2.1.3 Analysis

This researsch using inductive analysis, by seeing

spesific things and look for a common things and

generalized it.

3 RESULTS AND DISCUSSION

3.1 Arrangement for Stock Ownership

Nominee Agreement Prohibition in

Establishment and Operational

Mineral and Coal Mining Business

in Indonesia

3.1.1 Definition of Agreement

In deutch law, agreement or contract is called

overeenkomst and agreement law is

overeenkomstenrech (C.S.T, Kansil, 1995).

Agreement is the most important source that give

birth to treaty. Treaty mostly come from agreement,

however there are other sources that can give birth to

treaty. Those other sources are laws. In article 1233

code of civil law, every treaty is made because there

were approval, or because laws, means that there are

treaty made from agreement and there are also treaty

made from laws.

In article 1234 code of civil Law mention that

every treaty is to give something, do something or to

not do something.

Treaty or agreement have to qualify the legal

terms of agreement where the legal terms is regulated

in article 1320 code of civil law. Article 1320 code of

civil law is the main instrument to tested the validity

of a contract that made by both term which are (Agus

Y.H, 2014):

1) agree; both term which ties itself together

agree means approve or uniformly about main

things that put in the agreement.

2) capable; to make an agreement in the

principles, every adult person who have fully

grown and has a healty mind is capable

according to law. In article 1330 code of civil

law mention persons who do not qualify to

make an agreement are :

a) person who is not an adult yet;

b) person that been put under efficacy;

Article 1337 Code of Civil Law, “A cause is forbidden if

it is forbidden by the law or if it is in the contrary with

decency or public order”.

c) women set by law, and every person

the law has forbid to make a certain

agreement.

3) certain things, means something that is an

object of an agreement. The object can be

item/s that already exist or will exist (Danang,

S &Wika, H.P. (2016)).

The object of the agreement can be item/s,

service/s and dont do anything (Ratna A,

(2014).

4) A halal cause; means the contents of the

agreement cannot be something forbid by the

law.

Agreement or contract according to its name

divided into 2 (two) parts called a name contract

(nominaat) and a nameless contract (innominaat).

This classification is based in the name of agreement

that listed in Article 1319 Code of Civil Law:

a. A name contract (nominaat)

Nominaat contract is a contract known in Code

of Civil Law. Which include in the contract are

buy and sell, change and exchange, rent and

renting, civil partnership, grant, deposit

counter, lease, borrow and borrowing, power

of attorney, liability for debt, reconciliation,

etc (H.S, Salim,2019).

b. Nameless Contract (innominaat)

Innominaat contract is a contract that appear,

grow and develop in the society. For example

is a production sharing contract, joint venture,

contract of work, contruction contract, leasing,

buy rent, franchise, surrogate mother,

management contract, technical assistance

contract, etc (H.S, Salim, 2019).

3.1.2 The Definition of Nominee Agreement

Basicly the concept of nominee agreement is not

known in Continental European law system or Anglo

Saxon that apply in Indonesia, Indonesia just recently

know the concept of nominee agreement and is

frequently used in several law transaction especially

agreement after the growth of foreign investor around

the year 1990 or so, and because foreign investor

interest to invest their capital in Indonesia based on

quite a large amount of profit and cheap labor wages

(Endah, P, 2018).

Nominee agreement is included in innominaat

agreement/contract and this agreement exist in

Article 1319 Code of Civil Law, “Every agreement, that

is have a spesific name or doesnt have a certain name,

submit to general rules that is include in this chapter or

the previous chapter”.

Study of Stock Ownership Nominee Agreement in Mining Business to People’s Welfare That Is Aligned for Sustainable Development Goals

331

business world, exist and develop and used in

everyday life.

In the agreement law in Indonesia the form of

stock nominee agreement is innominaat agreement

(H.S, Salim, 2003), or nameless agreement where

Code of Civil Law is not regulating this nominee

agreement.

The definition of Nomine according to Black Law

Dictionary is “by the name of or under the name or

designation of” (Campbell, H, 1979). Other definiton

according to Black Law Dictionary is “one who has

been nominated or proposed for an office. One

designated to act for another in his or her place”

(Campbell, H, 1979). Used to mark an agent or

representative sometimes is used more than to act for

other party or as a receiver of scholarship from other

party.

Nominee according to article 1 paragraph (6)

Regulations of The Directorate General of taxes

number PER62/PJ.2009 about Prevention of Misues

of Double Tax Avoidance, is person or entity that

legally have (legal owner) a wealth and/or income for

the benefit of or a mandate of a party which is actually

become the wealth owner and/or based on the

mandate of a party who actually enjoyed the benefit

or income.

Stock ownership nominee agreement is a

agreement made and approve by both parties (in this

case is between the real owner of the stock

[beneficiary] with a person which his/her name is

used [omineee]), for the interests that wanted by one

of the party for stock ownership in a Limited Liability

Company (PT).

That stock nominee agreement is a written

agreement between two parties where one of them

agreed to do an act of law which made an impression

to others (pretending), that party is the the stock

holder or a director of a company, as for that act of

law he/she done is actually for the benefit or interest

of the other party.

3.1.3 Nominee Agreement Prohibition

Nominee agreement is prohibit in Investment Law,

the prohibition can be found in Article 33 paragraph

(1) Law Number 25 year 2007 about investment (Law

Investment), which are:

(1).Domestic investors and foreign investors who

do investing in a form of limited liability

company is prohibited to make an agreement

and/or statement which empasized that the

stock ownership in that limited liability

company is for and on behalf of other person.

Although in Article 33 Investement Law has

already regulated about nominee prohibition, but in

mining business there are still phenomenom of

nominee agreement practices. That is because there is

no monitoring and strict law enforcement from the

government especially with nominee agreement

phenomenom practices in establishment or

operational in mining business. Where the

government should be doing monitoring through

Monitoring system, Controlling, Field Observation

and Evaluation (P3LE), and also doing firm legal

action for those offender or nominee agreement

practicer.

3.2 The Establishment and Operational

of Mining Business Entities in

Order to Achieve Sustainable

Development Goals (SDGs) to

Create People’s Wellfare

3.2.1 Establishment of Mining Business

Entities in Indonesia

The concept that Limited Liability Company is a law

entity gave birth to Limited Liability Company

existence as an independent law subject, with a

separate existence for the stock holders (Mulhadi,

2020). This thing is the one that makes a lot of

investors choose Limited Liability Company as a

busniess entity, because there is a differentiation

between the company’s wealth and the stock holder’s

wealth.

The definition of Limited Liability Company

according to Article 1 number 1 Law Number 40 year

2007 about Limited Liability Company (Limited

Liability Company Laws), said, “Limited Liability

Company, herein after refereed to Limited Company

is a legal entity which is a capital alliance, establish

based on agreement, to do business activity with basic

capital where whole of it divided into stocks and

qualify the terms included in this laws and its

implementing regulations”.

In the establishment of Limited Company is

regulated in Limited Company laws about the

Limited Company establishment procedures, Article

7 to article 14. It is said in Article 7 paragraph (1)

Limited Company Laws, “Limited Liability

Company is establish by minimum of 2 (two) person

or more with Notarial Deed and made in Indonesian

Language”, what is meant by “person” is an

individual, Indonesian citizen or foreign citizen or

Indonesian law entity or foreign law entity Mulhadi,

2020).

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The provision for mining business entity in

Indonesia beside based on Article 7 to Article 14

Limited Company Laws also have to follow rules and

regualtions that apply in mining sector.

But in reality there is a difference opinion between

Public Notary as a general officials who brought out

Limited Company Deed of Establishment. In a

limited interview through whatapps as a media for

communication, among others :

1. According to Notary Noviana Tansari, S.H.,

M.Kn, mining business entity establishment

can be 100% foreign, but later on when the

company/business entity have aqquired

Production Operation Mining Business

License, it has the obligation to do stock

divestment as regulated in:

a. Article 112 paragraph (1) Mineral and

Coal law change about stock

divestment, “The business entity that

hold Mining License (IUP) or Special

mining Business License (IUPK) on

the stage of Operational production

that it stocks is own by foreign is

obligatory to do stock divestment

amounting to 5l% (fifty one percent)

gradually to Central government,

Regional Government, state-owned

business entity, and/or national private

business entity” which goal is to

maintain Indonesia Soverignty

especially soverignty in natural

resources.

b. Article 2 paragraph (1), Energy and

Mineral Resources Minesterial

Regulation number 43 Year 2018 about

change of Energy and Mineral

Resources Minesterial Regulation

number 09 Year 2017 about Stock

divestment procedures and Fixed Stock

Divestment Price Mechanism in

mineral and coal business (herein after

referred to as Energy and Mineral

Resources Minesterial Regulation

number 43 Year 2018 about Stock

Divestment), about stock divestment,

that is “The holder of Mining license

(IUP) Operational production and

Special mining license (IUPK)

Operational Production in order for

foreign investment, after 5 (five) years

after production is obligatory to do

stock divestment gradually, until tenth

year it stock at least 51% (fifty one

percent) of it stock must belong to

Indonesia participants.

2. According to Notary Buntario Tigris

Darmawan, S.H., M.H since the establishment

of mining business entity, maksimum of the

foreign stock ownership is 49% (forty nine

percent), according to provision Article 112

paragraph (1) Change of Mineral and Coal

Laws and Article 2 Paragraph (1), Energy and

Mineral Resources Minesterial Regulation

number 43 Year 2018 about Stock

Divestment). Because although the company

is establish, if it doesnt meet the foreign

requirement then the deed of establishment

will be overrulled by The Directorate General

of Mineral and Coal, The Ministry of Energy

and Mineral Resources.

According to the writer, in establishment of

mining business entity have to referr to provision

maximum limitation of foreign ownership which is

49% (forty nine percent) as stated in provisions that

apply in mining area.

For an existing mining buiness entity which it

foreign stock ownersip is 100%, that means according

to currently divestment provision which exist in

Article 112 Paragraph (1) Change of Mineral and

Coal Laws about stock divestment juncto article 2

paragraph (1) Energy and Mineral Resources

Ministerial Regulation No.43 Year 2018 about Stock

Divestment, then those business entity must do stock

divestment according to applicable regulations.

3.2.2 Mining for People’s Wellfare

The special features of a prosperous country is that

the Government is responsible to create public

wellfare for their own people (H.R, Ridwan, 2014).

According to E. Utrecht, “since a country actively

involve in social association, then the government

jobs more and more will become wide”. The

country’s administration is given the responsibility to

create public wellfare (berstuurzorg), (Utrech, E,

1988).

The existence of “berstuurzorg” obligation bring

a special consequences for the country’s

administration. To implement responsibility for the

achievement of people’s wellfare, organize education

to the people, and everything else well, needs free of

will to act according to self initiative in state

administration, especially in emergency

administration, and more especially in emergency

problem/s that suddenly appear and never occured

before, so a state institutions that has legislative

power has never been made before Utrech, E, 1988).

Study of Stock Ownership Nominee Agreement in Mining Business to People’s Welfare That Is Aligned for Sustainable Development Goals

333

Indonesia is one of the adherent of material rule

of law country concept, who adopt wellfare state

country consepts, and implicitly can be found in

general explanation of 1945 Constitution, and if you

examine further the main concept of 1945

Constitution, we can conclude that Indonesia is a

material law country or we can also said state wellfare

concept where the government has the absolute

responsibility to advance public general wellfare and

to manifest social justice for all the citizen (Hadiyono,

V, 2020).

In the natural resources field then the concept of

wellfare in Indonesia must correspond with Article 33

paragraph (3) 1945 Constitution, then natural

resources especially mineral and coal must be manage

through mining business and can gain benefit for the

people’s wellfare.

3.2.3 Definition and Purpose of Sustainable

Development Goals (SDGs)

The definition of Sustainable Development Goals as

stated in Presidential Decree number 59 Year 2019

about Implementation of Achieving the Goals of

Sustainable Development, Article 1 number 1,

“Sustainable Development Goals (SDGs) is a

document that contain global goals and objective

from year 2016 up to year 2030.”

SDGs has now enter its Fifth Year, since set on

September 2015 in United Nations General assembly

that attended by 159 Head os State, where SDGs is a

2030 Global Agenda, which is implemented by all the

nations in the world (Bappenas, 2020).

In line with the formulation of SDGs in global

level, Indonesia is also arranging The National

Medium-Term Development Plan (RPJMN) year

2015-2019 and 2020-2024, so the substance that is

inside SDGs has aligned with RPJMN which is a

Nawacita explanation as Indonesia Republic

President Mr. Joko Widodo’s vision and mission

(Bappenas, 2020). Nawacita is a National

development Agenda which is poured in President

and Vice President’s Vision-Mission (Kumolo T

&Tim, 2017) In general, National Development

strategy underlined things such are: (1) development

norm; (2)three dimensions development; (3)

conditions need to be fullfileed so the development

could take place; also (4) quick wins programs

(Kumolo T &Tim, 2017).

The purpose of SDGs is a development that

maintain the people’s economy growth continuously,

a development that maintain the quality of the

PBB (Perserikatan Bangsa-Bangsa).

environment that guarantee justice and

implementation of governance that is capable to

maintain the growth of quality of life from one

generation on to the next generation (Bappenas,

2020). SDGs is a global commitment and also

national commitment in effort to make the people

prosperous, that include 17 goals which are: (1)

Without Poverty; (2) Without Starving; (3) Healthy

and Prosperous Life; (4) Quality Education; (5)

Gender Awareness; (6) Proper Clean water and

Sanitazion; (7) Clean and Affordable Energy; (8)

Decent Job and Economy Growth; (9) Industry,

Innovation and Infrastructure; (10) Reduced

Inequality; (11) Sutainable Cities and Residences;

(12) Responsible Production and Consumption; (13)

handling Climate Exchange; (14) Sea Ecosystem;

(15) land Ecosystem; (16) Peace, Justice and Strong

Institution; (17) Partnership to Achieve Goals

(Bappenas, 2020).

4 CONCLUSIONS

Indonesia is one of the biggest natural resources

producer in the world, then in managing it must have

benefits for people’s wellfare. Therefore natural

resources authority is held by the country, also the

country limited the maximum of stock ownership.

But that is tricked by foreign investors by making

nominee agreement. The nominee agreement

phenomenon is a form of Law smuggling and violated

the country sovereignty in natural resources area.

That’s why the process of making nominee

agreement need to be monitored, controlled, observe

in the field and evaluated by the government so

Sustainable Development Goals (SDGs) can be

achieved, through Monitoring system, Controlling,

Field Observation and Evaluation (P3LE).

According to article 33 paragraph (3) 1945

constitution, natural resources management must

have:

1. The value of Justice, that is fair that all natural

wealth is given by The Almighty God and in

Indonesia possesion, not only belong to one

area only;

2. The value of benefit, that is, the natural

resources management must benefit for all the

nation so that the recipient of the permit must

pay taxes, royalty or non-tax revenue (PNBP)

where all the money is used for the benefit of

the people;

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3. The value of certainty, that is, the government

as the competent authority not jus give permit

to business entity that will manage mining, but

also doing monitoring and law enforcement so

SDgs is achieved.

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