Snags in antimonopoly law<\/p>\n
By Destivano Wibowo<\/p>\n
JAKARTA (JP): With the promulgation of Law No.5\/1999 on Anti-
\nMonopoly and Unfair Competition it seems that those who have
\nbenefited from monopolistic practices in the past will have to
\nreevaluate all their business activities.<\/p>\n
Monopolistic facilities were either obtained directly or
\nindirectly, through policies of the New Order administration or
\ndue to their own practice of obstructing competition.<\/p>\n
In principle, the Law bans business agents from entering into
\nagreements and conducting activities leading to monopoly,
\nmonopsony, oligopoly, oligopsony, price discrimination, marketing
\narea division, boycott, cartel, vertical integration, closed
\nagreement, conditional purchase, market domination, determination
\nof very low prices, unfair price determination, collusion, abuse
\nof dominant positions, double positions, share ownerships with
\ncertain conditions, amalgamation, merger and expropriation of
\nbusiness entities.<\/p>\n
To control the implementation of all the provisions of this
\nLaw, the government has, through Presidential Decree No.75 dated
\nJuly 8 1999, set up a Business Competition Control Commission,
\nwith a Board comprising a chairman and a deputy assisted by at
\nleast seven members.<\/p>\n
Members of this commission are appointed and dismissed by the
\ngovernment with the approval of the House of Representatives.
\nHowever, members of this commission have yet to be proposed by
\nthe government, even though the Law will become effective in the
\nnext three months (there will be a six-month period of
\nadjustment).<\/p>\n
This may be because our government has been too busy
\nestablishing other commissions. However, there are many
\nprovisions that need defining, both in government regulations and
\nin policies of the commission, and with only three months ahead,
\nwill the government and the commission have enough time to
\nformulate the necessary directives?<\/p>\n
Article 39 of this Law stipulates that the commission shall be
\nrequired to conduct preliminary investigation into each case
\nhaving monopolistic tendency, and within 30 days it should decide
\nif further investigation shall be required.<\/p>\n
Failure to be prepared with the necessary directives could
\nlead to the following possibilities:<\/p>\n
a. Article 39 fails to specify whether \"days\" refers to
\nbusiness days or calendar days. If within 30 days the Commission
\nfails to decide whether or not to conduct further investigations,
\nthen shall the business agent suspected of conducting
\nmonopolistic practices be declared free of such practices? Only a
\ncourt ruling would decide the guilt or innocence of the suspect.
\nb. Let us suppose that after the 30-day period the commission
\nstill cannot decide whether or not to conduct further
\ninvestigations, while reports of the alleged practice continue.
\nShall the 30-day period be calculated from the beginning of the
\ninvestigation, or shall the commission affirm that, due to the
\nnew reports, it will conduct further investigations?
\nc. Suppose further investigation is completed within 60 days and
\nis extended for another 30 days, but the commission fails to
\nissue any ruling. Shall the suspect be automatically relieved
\nfrom the sanctions of this Law? If the answer is 'yes', can the
\nbusiness agent sue the commission for slander? The commission
\nwould then only be busy serving the counter claims by such
\nbusiness people.
\nd. Since the commission was established under a presidential
\ndecree, there may be a tendency for such business people to
\nsimply ignore the commission's findings because such findings
\noften are not supported by court decisions.<\/p>\n
Therefore, the commission may delegate the task to
\ninvestigators. The question is, who would they be? The Criminal
\nCode specifies that investigators are the police or special
\nofficers appointed for such purposes.<\/p>\n
If the investigators are police, then they, apart from
\nprosecutors or specially appointed officers, would need training
\non this law.
\ne. In the judicial process, suspects are entitled to appeal to
\nthe Supreme Court if they are proven by the court to have
\nviolated the law. This law does not stipulate that the commission
\nshall also be entitled to make such an appeal.<\/p>\n
Therefore, shall the commission through the prosecutor
\nexercise its right provided within the Civil Code by referring to
\nthe time period specified in this Law? Of course such matters
\nneeds further attention by the policy makers.<\/p>\n
And what would happen if the Supreme Court finally annuls the
\ncommission's ruling? Can the commission apply for a review in
\naccordance with the Civil Code if new matters arise? This should
\nbe possible because the Commission may discover new evidence to
\nstrengthen its claim.<\/p>\n
Hopefully, answers to the above already exist, especially
\namong those who will be charged with implementing this Law.
\nDiligent implementation is required if we really want to create a
\nhealthy business climate in Indonesia.<\/p>\n
The writer graduated from Boston University School of Law and
\nworks at Lubis Ganie Surowidjojo Law Office in Jakarta.<\/p>",
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