Law on antimonopoly tested

By Destivani Wibowo

JAKARTA (JP): Several weeks ago, the Business Competition Supervisory Commission (KPPU) which supervises the implementation of the Anti Monopoly Law issued its decision regarding PT Caltex Pacific Indonesia (CPI) and PT Indomarco Primastama, well known for its Indomaret supermarket chain.

KPPU found that these two business actors violated the above law number 5/1999. Although the decision contain controversy, it is a major step in the implementation of the fairly new law.

Several factors may impede the enforceability of the decision given the procedures and mechanism stipulated in the law, related to those in the civil law.

For one, the above decisions begin with the phrase "In the name of justice based on the Almighty God". This wording is known as "executorial title", which is compulsory for the decision's enforcements.

Unlike in the Arbitration Law, which specifically states that the decision of arbitrator can be directly enforced against the concerned party through the District Court, the anti monopoly law does not specifically grant the above Commission the power to issue a decision with an executorial title.

The Commission's initiative to include the executorial title in its decision on CPI is debatable as article 46 of the Law says that KPPU must request for a executory decree or executorial title from the District Court. The company concerned may hence challenge the legality of KPPU's decision.

Another potential problem in the implementation of a KPPU decision would be in the District Court itself. While Article 46 says that KPPU shall delegate its decision to the District Court in order to bear an executorial title, the Law does not clearly say who has the power to carry out the execution against the business actor. Is it the Commission itself or the District Court?

Will the District Court, once giving the Commission an executorial title, return the decision to KPPU to enforce it, or the other way around? The KPPU is unlikely to carry out the execution of its decision by itself as it does not have the institutional facility to do so.

Furthermore, Article 45 of the law says the business actor has 14 days to submit its objection of the Commission's decision to the District Court since it has received notification of the decision. The question is to which District Court the business actor can challenge KPPU's decision? Is it to the District Court in the area of the business actor's residence?

Another important aspect of this law is the relation to other law enforcers, namely the police and Attorney General. The law rules that law enforcers can take over supervision of the enforcement of the Commission's decision if within 30 days the guilty party has not obeyed the ruling.

In this case the mechanism of the examination of the case is transferred from civil to criminal procedure. However once law enforcers are in charge of the case, there is the possibility that they can discontinue the case if they deem that evidence from the KPPU is insufficient. Can KPPU raise the matter again or submit additional documents? The law is silent in this respect and the Commission should therefore seek an arrangement with the police or the Attorney General to reach the conclusion that its decision will be deemed as binding.

If not, we can predict that most cases in this anti monopoly area will only stop at the Attorney General's Office or the police.

The last important aspect of this law is the possibility of the Commission's ruling being challenged in the State Administrative Court -- although the law clearly says that KPPU is an independent body. This is because the Commission could be considered among government bodies, with which legal disputes come under this Administrative Court.

The Commission should therefore seek an arrangement with the Ministry of Law and Human Rights or with the Supreme Court, to have a ruling that the Commission should be immune from lawsuits lodged against it at the Administrative Court.

In the interest of consumers it is important the Commission finds immediate means to resolve such problems. Those are several impediment factors which may obstruct the implementation of the Anti Monopoly and Unfair Business Practices. KPPU must find means to resolve such problems, in such that challenges raised by business actors relating to mechanism of examination and enforcement under such law, be minimized.

The writer works with the Lubis Ganie Surowidjojo law firm in Jakarta.