Law on antimonopoly tested<\/p>\n
By Destivani Wibowo<\/p>\n
JAKARTA (JP): Several weeks ago, the Business Competition
\nSupervisory Commission (KPPU) which supervises the implementation
\nof the Anti Monopoly Law issued its decision regarding PT Caltex
\nPacific Indonesia (CPI) and PT Indomarco Primastama, well known
\nfor its Indomaret supermarket chain.<\/p>\n
KPPU found that these two business actors violated the above
\nlaw number 5\/1999. Although the decision contain controversy, it
\nis a major step in the implementation of the fairly new law.<\/p>\n
Several factors may impede the enforceability of the decision
\ngiven the procedures and mechanism stipulated in the law, related
\nto those in the civil law.<\/p>\n
For one, the above decisions begin with the phrase \"In the
\nname of justice based on the Almighty God\". This wording is known
\nas \"executorial title\", which is compulsory for the decision's
\nenforcements.<\/p>\n
Unlike in the Arbitration Law, which specifically states that
\nthe decision of arbitrator can be directly enforced against the
\nconcerned party through the District Court, the anti monopoly law
\ndoes not specifically grant the above Commission the power to
\nissue a decision with an executorial title.<\/p>\n
The Commission's initiative to include the executorial title
\nin its decision on CPI is debatable as article 46 of the Law says
\nthat KPPU must request for a executory decree or executorial
\ntitle from the District Court. The company concerned may hence
\nchallenge the legality of KPPU's decision.<\/p>\n
Another potential problem in the implementation of a KPPU
\ndecision would be in the District Court itself. While Article 46
\nsays that KPPU shall delegate its decision to the District Court
\nin order to bear an executorial title, the Law does not clearly
\nsay who has the power to carry out the execution against the
\nbusiness actor. Is it the Commission itself or the District
\nCourt?<\/p>\n
Will the District Court, once giving the Commission an
\nexecutorial title, return the decision to KPPU to enforce it, or
\nthe other way around? The KPPU is unlikely to carry out the
\nexecution of its decision by itself as it does not have the
\ninstitutional facility to do so.<\/p>\n
Furthermore, Article 45 of the law says the business actor has
\n14 days to submit its objection of the Commission's decision to
\nthe District Court since it has received notification of the
\ndecision. The question is to which District Court the business
\nactor can challenge KPPU's decision? Is it to the District Court
\nin the area of the business actor's residence?<\/p>\n
Another important aspect of this law is the relation to other
\nlaw enforcers, namely the police and Attorney General. The law
\nrules that law enforcers can take over supervision of the
\nenforcement of the Commission's decision if within 30 days the
\nguilty party has not obeyed the ruling.<\/p>\n
In this case the mechanism of the examination of the case is
\ntransferred from civil to criminal procedure. However once law
\nenforcers are in charge of the case, there is the possibility
\nthat they can discontinue the case if they deem that evidence
\nfrom the KPPU is insufficient. Can KPPU raise the matter again or
\nsubmit additional documents? The law is silent in this respect
\nand the Commission should therefore seek an arrangement with the
\npolice or the Attorney General to reach the conclusion that its
\ndecision will be deemed as binding.<\/p>\n
If not, we can predict that most cases in this anti monopoly
\narea will only stop at the Attorney General's Office or the
\npolice.<\/p>\n
The last important aspect of this law is the possibility of
\nthe Commission's ruling being challenged in the State
\nAdministrative Court -- although the law clearly says that KPPU
\nis an independent body. This is because the Commission could be
\nconsidered among government bodies, with which legal disputes
\ncome under this Administrative Court.<\/p>\n
The Commission should therefore seek an arrangement with the
\nMinistry of Law and Human Rights or with the Supreme Court, to
\nhave a ruling that the Commission should be immune from lawsuits
\nlodged against it at the Administrative Court.<\/p>\n
In the interest of consumers it is important the Commission
\nfinds immediate means to resolve such problems. Those are several
\nimpediment factors which may obstruct the implementation of the
\nAnti Monopoly and Unfair Business Practices. KPPU must find means
\nto resolve such problems, in such that challenges raised by
\nbusiness actors relating to mechanism of examination and
\nenforcement under such law, be minimized.<\/p>\n
The writer works with the Lubis Ganie Surowidjojo law firm in
\nJakarta.<\/p>",
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"sponsor": "Okusi Associates",
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