The Petitioners’ attorney Misbahuddin Gasma delivering the subjects of the petition of the judicial review of the Law on the Prohibition of Monopolistic Practices and Unfair Business Competition (LPMPUTS Law), Thursday (16/7) in the Plenary Courtroom of the Constitutional Court. Photo by Humas MK/Gani.

JAKARTA, Public Relations of the Constitutional Court—The Constitutional Court (MK) held the preliminary material review hearing of Law No. 5 of 1999 on the Prohibition of Monopolistic Practices and Unfair Business Competition (LPMPUTS Law) on Thursday, July 16, 2020 in the Plenary Courtroom. The case No. 54/PUU-XVIII/2020 was filed by Barok, Nurul Fadhilah, Erika Rovita Maharani, Melita Kristin B. R., Helli Nurcahyo, and M. Suprio Pratomo, employees of the Commission for the Supervision of Business Competition (KPPU).

These Petitioners challenge Article 34 paragraphs (2) and (4) of the LPMPUTS Law. Article 34 paragraph (2) reads, “For the uninterrupted implementation of its duties, the Commission shall be assisted by a secretariat.” Article 34 paragraph (4) reads, “Provisions regarding the organizational structure, duties, and functions of the secretariat and working group shall be further regulated in a decision of the Commission.”

Before Constitutional Justices Suhartoyo (panel chairman), Arief Hidayat, and Saldi Isra, the Petitioners through attorney Misbahuddin Gasma argued that their constitutional rights have been violated by the enactment of the article. The provision of the a quo article has implications on the KPPU, whose employment are not nationally integrated. The LPMPUTS Law doesn’t provide legal certainty to the KPPU afforded to secretariats in other independent non-structural institutions, resulting in its employees not having legal guarantee and certainty in performing their duties.

“No [article] in Law No. 5 of 1999 explicitly regulates the appointment of the secretariat’s chairman and the status of its employees or the employees of the secretariat general. The Petitioners also believes that the word ‘secretariat’ as referred to in Article 34 paragraph (2) of Law No. 5 of 1999 ambiguous as it is written in lower cases, resulting in interpretation of function and position,” Misbahuddin explained. He added that in order to support the Commission’s performance as an independent state institution that answers to the president, the word ‘secretariat’ should be interpreted in relation to its function as ‘Secretariat General.’

Misbahuddin also said that the phrase ‘a decision of the Commission’ can’t be implemented as it is not in accordance with the provisions of legislation needed to regulate the organizational structure, duties, and secretarial functions of state institutions, including on staffing. In the absence of a Personnel Supervisor Officer, KPPU employees who were appointed at the establishment of the Commission aren’t regulated with the provisions of ASN (state apparatus). Such an officer, who has the authority to determine the appointment, transfer, and dismissal of ASN employees and the management of ASN in accordance with statutory provisions, is absolutely necessary for the KPPU to manage its staff.

Therefore, the Petitioners requested that the Court declare the word ‘secretariat’ in Article 34 paragraphs (2) and (4) of the LPMPUTS Law conditionally constitutional and legally binding only when not interpreted as ‘Secretariat General’ and the phrase ‘a decision of the Commission’ in Article 34 paragraph (4) conditionally constitutional and legally binding only when not interpreted as ‘Presidential Regulation.’

Justice Arief Hidayat advised the Petitioners to strengthen their legal standing while Justice Saldi Isra advised them to clarify their constitutional damage and to relate the touchstone and the background of the petition. At the end of the hearing, Justice Suhartoyo informed that the Petitioners were to submit the revised petition by Wednesday, July 29, 2020 at 13:00 WIB to the Registrar’s Office.

Writer: Utami Argawati
Editor: Nur Rosikin
PR: Annisa Lestari
Photographer: Gani
Translator: Yuniar Widiastuti (NL)

Translation uploaded on 7/17/2020 16: 06 WIB