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Midterm National Development Planning 2014-2019 we can find that Indonesian development planning priorities can be identified by each thematic goals. For example development in the
area of natural resources and environment
305
or in the area of poverty reduction. This implied provision also have been implemented in the practical matters. Both MCA-I
and ICCTF have formulated its own goals and objective.
306
The goal of the Compact grants is to reduce poverty in Indonesia through economic growth in Indonesia.
307
While the goal of the ICCTF is to support the GoI’s efforts to reduce greenhouse gas GHG emissions, a low carbon
economy and facilitate adaptation in facing the negative impacts of climate change.
308
C. Governing documents
1. Governing Documents Must Define the Powers and Responsibilities of the
Governing Body
In addition of the origination or establishment document, most trust fund also have a Bylaws or internal regulations which set forth more detailed governing rules for the trust funds
and operations Manuals, which set forth the internal rules and procedures for the day to-day operations and administration.
309
Governing documents clearly define the composition, powers and responsibilities of the governing body or bodies. A governing body’s composition is designed so that its members
will have a high level of independence and stakeholder representation.
310
The number of different stakeholders that must be given a right to appoint governing body members for various
political reasons.
311
305
Perpres No. 52015 on Midterm National Development Planning 2015-2019, at Book III Chap. 10.
306
For more information about the MCA- I’s and the ICCTF’s goals and objectives see Chapter IV of this article.
307
Millennium Challenge Compact.
308
ICCTF Implementing Bylaws, at Sec. 2.6-1.
309
Barry Spergel Kathleen Mikitin, supra note 285, at. 12.
310
Id. at 14.
311
Id.
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2.
Potential Confusions of Governing Bodies’ Powers
Regarding the governing documents of the trust fund, Perpres No. 802011 provides two requirements. First, the trust fund should be established by the initiate MinisterHead of Agency
after having consideration from Head of Bappenas and the Minister of Finance.
312
Secondly, the member of the Board of trustee should be assigned by the decree of the host minister.
313
In practice, the existing development trust funds at least have four level of governing documents: 1 Ministerial regulation as a charter of the trust fund; 2 Ministerial decree for the
appointment of the Board of Trustee; and 3 A set of governing guideline as the Bylaws of the trust funds and 4 a set of standard operating procedures for the day to-day operations and
administration of the trust fund institution. For example, the MCA-I has been enacted under Head of Bappenas Regulation No.
22012 and the ICCTF is under Head of Bappenas and No. 32012. Head of Bappenas then issued a Ministerial Decree No. 62M.PPNHK042015 for the appointment of the MCA-
I’s Board of Trustee
314
and Head of Bappenas Decree No. 97M.PPNHK042014 for the appointment of the ICCTF’s Board of Trustee.
315
One problem that currently exist is regarding is a potential violation of the delegation power from the Minister who established a trust fund to the trustee institution to self-governed
their own organization. As for general rule, the lower documents must not provide an exceed authority to the Board of Trustee rather that what the higher document’s has given to them. This
312
Perpres No. 802011, Art. 5 2.
313
Id. Art. 9 2.
314
As amendment of Head of Bappenas Regulation then issued a Ministerial Decree No. 82M.PPNHK082012 for the appointment of the MCA-
I’s Board of Trustee.
315
As amendment of Head of Bappenas Regulation then issued a Ministerial Decree No. 33M.PPNHK032014 for the appointment of the ICCT
F’s Board of Trustee.
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is actually analogue also with the hierarchy of sources of law.
316
For example, the Bylaws should not raise their own authority more than has been given by the charter or establishing
documents. The governing documents of current Indonesian trust funds still contain a problem of
delegation of authority. In the case of the MCA- I, it’s supposed to be there is nothing in the
Perpres No. 802011 or in the establishing documents which mentioned that the MCA-I have independent legal personality. However, the MCA-I
’s Bylaws mentioned that the MCA-I is having legal capacity to sue and be sued in before the court.
317
Moreover, the Bylaws also stated that
The Board of Trustees’ decisions will not be subject to review and reversal by any other Government entity or official other than a judicial authority exercising proper jurisdiction.
318
By mentioning such provisions the MCA-I technically act as independent legal entity that separate from the Bappenas. The Board of Trustee is also potentially acting beyond their
authority by saying that their decisions will not be subject to review and reversal by any other Government entity or official other than a judicial authority exercising proper jurisdiction.
D. Governing Body
