Supreme Court Evicts Indirect Evidence in Antitrust Cases

Happy Rayna Stephany, Andin Aditya Rahman
 
Indirect evidence in antitrust cases remains a foreign term to the ears of Indonesian Justices as the Supreme Court recently annulled decisions rendered by the Commission for the Supervision of Business Competition (KPPU) for two antitrust cases, a cooking oil cartel case and a fuel surcharge cartel case.
 
Nawir Messi, KPPU’s Chairman, admitted to being perplexed by the Supreme Court’s invalidating the decisions.
 
“I was really furious when the cases were invalidated,” confessed Mr. Messi.
 
Compared to the antitrust legislation of other nations, Indonesian laws and regulations are yet to acknowledge the legality of indirect evidence, such as economic analyses, price jumps, and common motives. The reason given for this stance is that Indonesian lawmakers are reluctant to acknowledge indirect evidence as evidence since they can constitute irrefutable facts.
 
According to Mr. Messi, such rationale is peculiar and incorrect. In spite of being based on economic analysis, indirect evidence can be verified by economists in a justifiable scientific form.
 
“Can’t scientific truth be used as valid legal evidence?” he mused.
 
Mr. Messithen took the example of the cooking oil cartel case, in which the KPPU found indications of certain cooking oil producers conspiring to manipulate the market price of cooking oil. At that point, KPPU investigators connected the dots between certain indicators and developments in the market price of cooking oil.
 
“It is correct that the price which is shaped in the market is a fact, as well as the minutes of meetings uncovered by the investigators. Both are facts. However, how will we connect the minutes with the price that is formed in the market if not through analyses by economists? This is yet to be accepted by Indonesian Courts,” expounded Mr. Messi.
 
Despite the stance taken by the Indonesian Courts, Nawir defended his view by arguing that the Civil Procedural Law and Article 45 of Law No. 5 of 1999on the Prohibition of Monopolistic Practices and Unfair Business Competition recognizes indications as legal evidence.
 
“The Civil Procedural Law and Antitrust Law acknowledge indications as legal evidence. Indirect evidence is classified as an indication,” he said.
 
Behind the Times
The dismissal of indirect evidence was also commented on by Soy M. Pardede, Chairman of the Board of Trustees at the ASEAN Competition Institute (ACI). Supporting the view of Mr. Messi, Mr. Pardede stated that the United States of America, Australia, and the European Union have utilized indirect evidence as a means to substantiate cartel practices.
 
Indirect evidence is vital, he asserted, as cartels are mostly conducted orally and in secrecy. Considering such factors, the per se illegal approach is insufficient as evidence in antitrust cases. This is where the rule of reason approach comes into play.
 
“Even Brazil uses indirect evidence as primary evidence. What about Indonesia? Indonesia is still yet to come into an understanding of the use of indirect evidence as legal evidence,” wrote Mr. Pardede in a press release received by Hukumonline.
 
Different Name
Providing further comments on indirect evidence, Bustanul Arifin, a senior economist at the Institute for Development of Economics and Finance (INDEF), suggested the use of the term “circumstantial evidence” rather than “indirect evidence”. According to Mr. Arifin, perhaps the use of a different term for the same object could promote better acceptance.
 
“Maybe the term that can be used is bukti pengondisian or circumstantial evidence,” proposed Bustanul.
 
In response to this suggestion, Mr. Messi admitted that other countries use circumstantial evidence when referring to indirect evidence. However, he persisted that Indonesian Courts will maintain their stance in rejecting indirect evidence as legal evidence, regardless of what it is called.
 
“It still will not be accepted even if the term is circumstantial evidence,” responded Nawir.
 
(hot/kc)