Revision of Anti-Trust Law: Stakeholders Offer Various Inputs

Indonesian Version

 
Marcell Sihombing, Fitri N. Heriani
 

 

Cartels and monopolistic practices are common occurrences within the business sector, as they can lead to dramatic increases in profit margins, and companies usually engage in these unfair business practices by manipulating their business networks. Therefore, in a bid to prevent the occurrence of monopolistic and unfair business practices, the government has established the Business Competition Supervisory Commission (Komisi Pengawas Persaingan Usaha – “KPPU”). This commission is mainly responsible for overseeing business competition within Indonesia and for maintaining a healthy business climate.
 
Since its establishment, the KPPU has taken an active role in the eradication of cartels and monopolies. By way of example, the KPPU has already sentenced several telecommunications providers which were found to have been involved in an SMS (short-message service) cartel. Many other companies have also been sentenced by the KPPU for violating various provisions set out in Law No. 5 of 1999 on the Prohibition of Monopolistic Practices and Unfair Business Practices (Indonesia’s so-called Anti-Trust Law).
 
However, a number of parties are currently demanding that the government revise the Anti-Trust Law. In response to these demands, the government and the House of Representatives (“House”) have agreed to push for a revision to the law, and have also been receiving input from the KPPU as regards the various provisions which are deemed to be in need of revision. Furthermore, various businesses have also offered input as regards the revision, including substantial inputs relating to the establishment of the KPPU Supervisory Council, as well as the so-called “justice collaborator” mechanism.
 
The Employer’s Association of Indonesia (APINDO) recently offered a total of 11 inputs to the government which relate to the revision. One of these inputs addresses the KPPU’s status as a government institution. According to Sutrisno Iwantono, the head of an expert team established by APINDO’s National Board (DPN APINDO), the KPPU is already a superpower body. Thus, if the KPPU still perceives itself to be a mere “paper tiger” (macan ompong), then there is a need to thoroughly review the KPPU’s institutional system. Such a review should encompass whether the integrated model introduced under the Anti-Trust Law, which saw the KPPU taking on the various roles of informant, investigator, prosecutor and even judge, is still relevant within the context of the Indonesian business climate.
 
“We [APINDO] suggest that the KPPU should be able to exercise the authority of informant, investigator and prosecutor only, while its judging role should be separated out and remain under the current adjudicative system. Either that or a special judge should be appointed, as is the case at the Anti-Corruption Court,” Mr. Iwantono explained.
 
Mr. Iwantono went on to also demand that the government and the House involve businesses during deliberations of the prospective revision. However, Mr. Iwantono also revealed that, to date, no official requests for input had so far been addressed to APINDO.
 
“Thus, we [APINDO] have reminded the House that they should be involving businesses when they are deliberating the revision of the Anti-Trust Law, and that any such input should also encompass the deliberation of any regulatory framework which may ultimately affect businesses,” Mr. Iwantono explained.
 
Meanwhile, the Indonesian Chamber of Commerce and Industry (KADIN) has also expressed its support for the plan to revise the Anti-Trust Law, just as other business associations have already done. In fact, Rosan Roeslani, the General Chairman of the Indonesian Chamber of Commerce and Industry (KADIN), has revealed that KADIN has already discussed the revision of the Anti-Trust Law with both the House and the KPPU. KADIN has also offered input as regards this particular matter.
 
“We [KADIN] are involved and are taking an active part in this matter [the revision of Anti-Trust Law],” Mr. Roeslani revealed in Jakarta on Tuesday, 29 November 2016.
 
However, Mr. Roeslani also expressed his hope that any revision of the Anti-Trust Law would not lead to any decline in the business climate, but would instead lead to the development of a healthy business sector. Thus, according to Mr. Roeslani it would be best if the revised Anti-Trust Law no longer focused solely upon a punitive approach. However, Mr. Roeslani pointed out that the KPPU currently took such a punitive perspective during the carrying out its various duties and responsibilities. Indeed, currently any business which is caught violating any of the provisions set out in the Anti-Trust Law is immediately sentenced by the KPPU.
 
“It shouldn’t be like this. It would be preferable if we attempted to develop and create a healthier business climate instead,” asserted Mr. Roeslani.
 
On a slightly different note, Mr. Roeslan also expressed a similar opinion to that of APINDO, namely that the KPPU should not be simultaneously occupying the roles of investigator, prosecutor and judge. Mr. Roeslan asserted that said roles must be separated out and concluded by stating that certain regulatory frameworks were not applicable in Indonesia.