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Two Government’s Experts Yohanes Gunawan and Benadet Waluyo and Applicant’s Expert Firtianin Ahlan Sjarif deliver their testimony alternately at judicial revision session on Act of Consumers Protection, on Monday (24/8), at Plenary Room, the Constitutional Court Building. Photo PR/Ganie

 

 

 

The Constitutional Court (Mahkamah Konstitusi –MK) holds further judicial review session on Act Number 8 Year 1999 of Consumers Protection (Undang-Undang Perlindungan Konsumen), on Monday (24/8), at Plenary Room, the Constitutional Court Building. Chief Justice Arief Hidayat leads the session which scheduled on Applicant’s Expert and Government’s Expert testimony hearing. The petition on the session is registered in Case Number 65/PUU-XIII/2015.

Law lecturer of Universitas Indonesia Fitriani Ahlan Sjarif as Applicant’s Expert explains, the formulation of Article 4 letter c and Article 7 letter b Act of Consumer Protection is not met several principles of legislation establishment stated in Act Number 12 Year 2011 of Legislation Establishment, particularly objective clarity principle, practicality principle, and usefulness principle.

Regarding objective clarity principle, she explains that any Act always has its own objective and the objective can be understood by figuring out the reason of its establishment. According to Fitriani, the reason of Act of Consumer Protection establishment is for protecting consumer interest in Indonesia. The Act a quo defines consumer protection as entire attempt which guarantee legal certainty in order to provide consumer protection. Moreover, the objective is described in Article 3 letter d and letter e Act a quo which stated ‘create consumer protection system which contain legal certainty and information transparency, as well as information accesses.

“All of three points aforementioned indicate a common thread that the Act is for manifesting consumer protection in Indonesia. Associated with the petition, the formulation of both Article cannot be optimal to indicate complete protection,” said Fitriani

Fitriani says consumers yet granted well protection if their rights are limited to product condition and product and service guarantee. Meanwhile, the regulation which regulated consumers’ rights on clear and correct information is not fully implemented if the name and address of business actors and/or legal entity who responsible for the product/services is not mentioned.

Fitriani also assesses the principle of practicality and usefulness is yet implemented. ”In accordance with the objective aforementioned, both articles filed are never be done appropriately with the objective and provide consumer protection if there is no clear information on the name and complete address of producers who responsible for their products/services,” explained her.

Legal Certainty

Meanwhile, law professor of consumer protection and civil law Universitas Katolik Parahyangan Benadet Waluyo as Government’s Expert says the Applicant has incorrectly filed lawsuit on authorized district courts regarding his land plot transaction case. Benadet says the failure of Applicant’s lawsuit is due to undelivered document to the consumer. It is not because the name and address of the developer which not stated in a deed of sale (akta jual beli).

Therefore according to Benadet, the problem suffered by the Applicant is norm implementation problem of Act a quo, instead of norm constitutionality problem. “The case relates to civil procedural law field or formal civil law because it is a norm implementation problem,” said him.

Benadet explains that during the establishment of Act of Consumer Protection, the legislator has recognized that goods trading in Indonesia are not always conducted by producers. Goods trading are mostly conducted through supply chain. “Retailers are in direct contact with consumers,” he added.  

He further says, goods trading are also conducted through agents, importers, franchises, and etc. which have different legal consequences. “It is important to determine the most responsible party if consumers detrimental by the product/service. Due to it, it is stated in Article 8 Act of Consumer Protection that business actors prohibit to produce and/or trade their goods/services, and etc. The word ‘produce’ (‘memproduksi’) refers to producers, while the word ‘trade’ (‘memperdagangkan’) might refers to producers, distributors, wholesalers, or retailers,” explained him.

Under various trading patterns, Benadet argues, legal consequences could be different in determining the responsible party. Thus, provision on name and complete address of business actors responsible to consumers would be various. The provision shall be regulated specifically regarding particular business actor, not in Act of Consumer Protection.

Moreover, he explains consumer loss might be occurred due to errors conducted by one of the chain supply, rather than producers. Goods could be damaged during the distribution, incorrect storage by distributors or retailers, or expired goods sold by retailers although producers have noted expired date. Thus, Benadet says it is unfair and incorrect if producers are the only party responsible for consumer.

Benadet assesses, Article 4 letter c Act a quo has provided consumer rights, likewise Article 7 letter b Act a quo which has provided obligation to business actors. He also assesses that Act a quo has provided consumer protection in Article 19 which related to Article 23.

Benadet argues the first way consumers could done if they harmed is asking for accountability, according to the provision in Article 19 and Article 23 Act a quo. Consumers may sue business actors if they are not responsible for consumer loss. Consumers’ lawsuit is regulated in Article 45 (2) Act a quo, which is by submitting lawsuit case to the Consumer Dispute Settlement Body (Badan Penyelesaian Sengketa Konsumen –BPSK) or to district courts.

According to Benadet, the provision in Article 4 letter c and Article 7 letter b Act of Consumers Protection has provided legal protection, legal certainty, and justice in matter of norm implementation. “If the provision is interpreted as Applicant proposed; ‘as well as the name and address of responsible business actors’ (‘serta nama dan domisili pelaku usaha yang bertanggung jawab’), it indeed cause injustice, particularly in asking for accountability from responsible business actors,” asserted him.

 

On previous session, three Indonesian citizens Samuel Bonaparte, Ridha Sjartina, and Satrio Laskoro review Article 4 letter c and Article 7 letter b Act of Consumers Protections. Samuel says Article 4 letter c doesn’t mention consumer right to gain correct and complete information on the name and address of legal entity which responsible for goods or services. He assesses it could detrimental to him as consumer.

Article 4 letter c:

“Consumer Rights are: c. Right to gain correct and clear information on the condition and guarantee of the product and/or service” (“Hak Konsumen adalah: c. Hak atas informasi yang benar, jelas, dan jujur mengenai kondisi dan jaminan barang dan/ atau jasa”)

Article 7 letter b:

 “Business Actor’s Responsibilities are: b. provide correct and clear information on the condition and guarantee of the product and/or service, as well as provide explanation on product use, product repair, and product maintenance” (“Kewajiban Pelaku usaha adalah: b. memberikan informasi yang benar, jelas dan jujur mengenai kondisi dan jaminan barang dan/atau jasa serta memberi penjelasan penggunaan, perbaikan dan pemeliharaan”)

Thus, the Applicant requests the Constitutional Court to declare Article 4 letter c Act of Consumers Protection contrary to the 1945 Constitution if it is not interpreted as ‘including right to information on the name and complete address of business entity which responsible for products or services it produced / sold’ (‘termasuk hak atas informasi atas nama dan domisili lengkap badan usaha yang bertanggung jawab terhadap barang/ atau jasa yang diproduksi dan/ atau dijual’). The Applicant also requests the Court to declare Article 7 letter b Act a quo contrary to the Constitution if it is not interpreted as ‘provide clear and correct information on the condition and guarantee of products/services as well as provide information on the usage and repair of products/services and the name and address of responsible business actors’ (‘memberikan informasi yang benar, jelas, dan jujur mengenai kondisi dan jaminan barang dan/atau jasa serta memberi penjelasan penggunaan, perbaikan serta nama dan domisili pelaku usaha yang bertanggung jawab’). (Lulu Hanifah/IR/Prasetyo Adi N)

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