Law on antimonopoly tested

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.