Wake-up call for KPPU before it is too late<\/p>\n
Ignatius Andy, Lawyer, Jakarta<\/p>\n
The South Jakarta District Court will announce on Thursday its
\nruling on the appeal filed by five parties against the Business
\nCompetition Supervisory Commission (KPPU)'s decision in the
\nIndomobil case. Whichever way the court decides it will stir up
\neven more controversy.<\/p>\n
The Central and West Jakarta district courts earlier ruled
\nagainst the KPPU, and there seems to be a concerted attempt to
\nattribute these decisions to the gross incompetency or corruption
\nof the judges. As a result, the KPPU has threatened to initiate
\nan investigation into the judges or report them to the Ministry
\nof Justice and Human Rights.<\/p>\n
It would be a sad day for justice in Indonesia if this line of
\nthinking was accepted. The judiciary may be imperfect, as lots of
\npeople have complained, but there is always the possibility that
\nIndonesian courts are still capable of issuing rulings that are
\nwell-reasoned and supported by the facts and strong evidence.<\/p>\n
Succumbing to generalizations about the imperfect courts is
\nnot only succumbing to intellectual laziness; it will also divert
\nthe public's attention from the real issue on trial in this case:
\nthe caliber of the KPPU's investigation processes, and therefore
\nthe quality of the KPPU's decisions themselves.<\/p>\n
The writer cannot speak about the merits of the other cases,
\nbut can discuss the Central Jakarta District Court's ruling on
\nDeloitte & Touche FAS (DT-FAS). In this case, any reasonable
\nperson would have to conclude that the panel of judges arrived at
\na sound decision, after carefully reviewing about 200 pages of
\nlegal arguments that were supported by statements from expert
\nwitnesses, as well as thousands of pages of documents submitted
\nas evidence.<\/p>\n
The reasons behind the judges' ruling were also convincing.
\nDT-FAS' appeal, among other things, proved that the KPPU had
\nnever investigated DT-FAS in its capacity as a defendant, which
\nis against the antimonopoly law; that the KPPU did not give DT-
\nFAS the proper opportunity to present its case and failed to
\nrespect the due process of the law; and that the KPPU had
\nmistakenly defined DT-FAS as a seller in the Indomobil sale when
\nit fact it was a consultant.<\/p>\n
For reasons known only to themselves, the KPPU's professional
\nlegal team chose -- and this was noted by the panel of judges in
\nthe DT-FAS decision -- not to contest any of DT-FAS's objections.
\nThis is significant because the KPPU was in effect not refuting
\nthe truth of these objections.<\/p>\n
The panel of judges, however, did not base their decision
\nsolely on this novel defense strategy of the KPPU. They also
\nconsidered other evidence, and their conclusion was that the KPPU
\nessentially acted in a way which denied DT-FAS an opportunity to
\npresent its case. The panel also said that all of the KPPU's
\nfindings in its decision against DT-FAS were based on the
\nmistaken fact that DT-FAS was a seller, and that DT-FAS could not
\nbe held responsible for the acts of the seller.<\/p>\n
It is clear from this ruling that the KPPU's decisions were
\nbased on false assumptions. It is also clear that its procedures
\nwere arbitrary and lax. All this contributed to a decision that
\ncould not stand up to scrutiny in a court of law.<\/p>\n
This being the case, the KPPU should treat the court's
\ndecision as a wake-up call to improve itself instead of resorting
\nto threats and intimidation against the judiciary. It needs to do
\nthis because at the end of the day, Indonesia badly needs an
\neffective KPPU. The question is: what kind of KPPU?<\/p>\n
We have labored for 32 years under a regime that is rife with
\nunhealthy business practices. We need an institution to right the
\nwrongs and create a level playing field for healthy business
\ncompetition.<\/p>\n
The only way the KPPU can do this is by tightening its
\nprocedures so that all businesses can know for certain where the
\nline in the sand is, as far as business practices are concerned.
\nThey also need to have confidence that as an institution the KPPU
\nwill not resort to its current practices, which have been marked
\nby a tendency to change legal definitions in the name of
\nexpediency and an attitude that righteousness is enough to
\novercome the need for due process, principles of fairness and
\nequal treatment.<\/p>\n
The KPPU can rise to this challenge by demonstrating in its
\nactions that it (i) respects the prevailing Indonesian laws and
\nregulations, especially the antimonopoly law, (ii) respects the
\ndue process of the law and (iii) is being careful in its fact-
\nfinding and decision-making processes. The absence of this would
\nonly prejudice the quality and integrity of any KPPU action or
\ndecision.<\/p>\n
We can only hope that the KPPU rises to this challenge, for
\nthe future of healthy business competition, and therefore the
\nnation's economic recovery, is at stake here.<\/p>",
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