Wake-up call for KPPU before it is too late

Wake-up call for KPPU before it is too late

Ignatius Andy, Lawyer, Jakarta

The South Jakarta District Court will announce on Thursday its
ruling on the appeal filed by five parties against the Business
Competition Supervisory Commission (KPPU)'s decision in the
Indomobil case. Whichever way the court decides it will stir up
even more controversy.

The Central and West Jakarta district courts earlier ruled
against the KPPU, and there seems to be a concerted attempt to
attribute these decisions to the gross incompetency or corruption
of the judges. As a result, the KPPU has threatened to initiate
an investigation into the judges or report them to the Ministry
of Justice and Human Rights.

It would be a sad day for justice in Indonesia if this line of
thinking was accepted. The judiciary may be imperfect, as lots of
people have complained, but there is always the possibility that
Indonesian courts are still capable of issuing rulings that are
well-reasoned and supported by the facts and strong evidence.

Succumbing to generalizations about the imperfect courts is
not only succumbing to intellectual laziness; it will also divert
the public's attention from the real issue on trial in this case:
the caliber of the KPPU's investigation processes, and therefore
the quality of the KPPU's decisions themselves.

The writer cannot speak about the merits of the other cases,
but can discuss the Central Jakarta District Court's ruling on
Deloitte & Touche FAS (DT-FAS). In this case, any reasonable
person would have to conclude that the panel of judges arrived at
a sound decision, after carefully reviewing about 200 pages of
legal arguments that were supported by statements from expert
witnesses, as well as thousands of pages of documents submitted
as evidence.

The reasons behind the judges' ruling were also convincing.
DT-FAS' appeal, among other things, proved that the KPPU had
never investigated DT-FAS in its capacity as a defendant, which
is against the antimonopoly law; that the KPPU did not give DT-
FAS the proper opportunity to present its case and failed to
respect the due process of the law; and that the KPPU had
mistakenly defined DT-FAS as a seller in the Indomobil sale when
it fact it was a consultant.

For reasons known only to themselves, the KPPU's professional
legal team chose -- and this was noted by the panel of judges in
the DT-FAS decision -- not to contest any of DT-FAS's objections.
This is significant because the KPPU was in effect not refuting
the truth of these objections.

The panel of judges, however, did not base their decision
solely on this novel defense strategy of the KPPU. They also
considered other evidence, and their conclusion was that the KPPU
essentially acted in a way which denied DT-FAS an opportunity to
present its case. The panel also said that all of the KPPU's
findings in its decision against DT-FAS were based on the
mistaken fact that DT-FAS was a seller, and that DT-FAS could not
be held responsible for the acts of the seller.

It is clear from this ruling that the KPPU's decisions were
based on false assumptions. It is also clear that its procedures
were arbitrary and lax. All this contributed to a decision that
could not stand up to scrutiny in a court of law.

This being the case, the KPPU should treat the court's
decision as a wake-up call to improve itself instead of resorting
to threats and intimidation against the judiciary. It needs to do
this because at the end of the day, Indonesia badly needs an
effective KPPU. The question is: what kind of KPPU?

We have labored for 32 years under a regime that is rife with
unhealthy business practices. We need an institution to right the
wrongs and create a level playing field for healthy business
competition.

The only way the KPPU can do this is by tightening its
procedures so that all businesses can know for certain where the
line in the sand is, as far as business practices are concerned.
They also need to have confidence that as an institution the KPPU
will not resort to its current practices, which have been marked
by a tendency to change legal definitions in the name of
expediency and an attitude that righteousness is enough to
overcome the need for due process, principles of fairness and
equal treatment.

The KPPU can rise to this challenge by demonstrating in its
actions that it (i) respects the prevailing Indonesian laws and
regulations, especially the antimonopoly law, (ii) respects the
due process of the law and (iii) is being careful in its fact-
finding and decision-making processes. The absence of this would
only prejudice the quality and integrity of any KPPU action or
decision.

We can only hope that the KPPU rises to this challenge, for
the future of healthy business competition, and therefore the
nation's economic recovery, is at stake here.