JurnalPost.com - The establishment of the Daya Anagata Nusantara Investment Management Agency (Danantara), regulated under Government Regulation (PP) Number 19 of 2026, marks a new chapter in Indonesia's strategic investment management. Through the state capital participation scheme sourced from the State Revenue and Expenditure Budget (APBN) as mandated by Article 31A of PP 19/2026, Danantara is projected to become an engine for national economic growth. However, behind these ambitious business calculations, a fundamental legal discourse has emerged regarding the boundaries of public accountability: what is the legal status of investment losses incurred by holding companies under Danantara?
This debate arises from normative conflicts within the structure of PP 19/2026 itself. On one hand, Article 29B paragraphs (5) and (6) define investment holding losses as losses of the entity itself, separating Danantara's liability based on the doctrines of separate legal entity and limited liability. This civil construction treats potential investment failures merely as ordinary business risks. On the other hand, the public questions whether the formality of separating corporate legal forms automatically erases the public nature of the APBN funds injected into them.
From the perspective of state financial law, the answer is definitive. The separation of legal form does not automatically evaporate the public character of APBN funds. Referring to Article 1 point 1 in conjunction with Article 2 letter g of Law Number 17 of 2003 concerning State Finance, state assets separated into state-owned enterprises remain categorized as part of state finances. This principle was reaffirmed by the Constitutional Court in Decision Number 62/PUU-XI/2013, which adopted a 'substance over form' approach. This means the public nature of funds is inherent in their source and substance, not in the legal shell of the entity managing them. The Supreme Audit Agency (BPK) position is consistent with this view, where public accountability for the use of APBN capital cannot be isolated simply by wrapping it in the form of a limited liability company.
Nevertheless, generalizing every loss incurred by a Danantara investment holding as a criminal act of corruption is a fatal error that risks paralyzing the decision-making courage of investment managers. This is where the importance lies in distinguishing between pure business risks and unlawful acts through the Business Judgment Rule doctrine, as enshrined in Article 97 paragraph (5) of Law Number 40 of 2007 concerning Limited Liability Companies.
If losses arise from investment decisions made in good faith, with due care, based on adequate information, and free from conflicts of interest, then managers are entitled to the protection of the Business Judgment Rule. In this context, such losses are entirely business losses absorbed by the corporate entity. Conversely, this corporate shield will immediately collapse if elements of bad faith, gross negligence, conflicts of interest, or violations of the law are found. Once that protection is lost, the actual losses suffered by the investment holding automatically shift to meet the qualification of 'damaging state finances' as regulated in Article 1 point 22 of Law Number 1 of 2004 concerning the State Treasury and Articles 2 and 3 of the Law on the Eradication of Corruption.
The fundamental problem with PP 19/2026 currently lies in its structural gaps. The regulation appears too inclined to fortify Danantara and its investment holdings with the principle of separate ownership, without being balanced by adequate public accountability mechanisms. PP 19/2026 does not yet contain strict prudential standards for investments, lacks provisions for independent public audits of APBN fund usage, and leaves the parameters for legal consequences for negligent managers vague. The absence of these mechanisms risks making investment holdings a means to insulate managers from public accountability, a condition that contradicts the principles of transparent institutional governance as promoted in Sustainable Development Goals (SDG) Target 16.6.
Ultimately, losses experienced by Danantara investment holdings using capital sourced from the APBN cannot be categorized absolutely as ordinary business losses. The public characteristic of state funds remains attached and is ready to be drawn into the public legal accountability regime if there is bad faith or violations of the law in their management. To prevent the misuse of state capital without stifling Danantara's business flexibility, the government needs to immediately issue derivative regulations that clarify investment prudence guidelines, the authority of BPK audits, and measurable indicators for the Business Judgment Rule. Only with such clear boundaries can Danantara move nimbly to drive the economy without abandoning the mandate of public financial accountability.
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