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The Petitioners’ attorney Misbahuddin Gasma (center) delivering the petition revisions in the judicial review of the Law on the Prohibition of Monopolistic Practices and Unfair Business Competition (LPMPUTS Law), Monday (24/8) 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 another material review hearing of Law No. 5 of 1999 on the Prohibition of Monopolistic Practices and Unfair Business Competition (LPMPUTS Law) on Monday, August 25, 2020. 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 the Court, which was presided over by Constitutional Justice Suhartoyo, the Petitioners through attorney Misbahuddin Gasma conveyed the addition of Article 34 paragraph (1) of the LPMPUTS Law to review against Article 28I paragraph (2) and Article 33 paragraph (4) of the 1945 Constitution in addition to Article 28C paragraph (1) and Article 28D paragraph (1).

“The addition of touchstones was because the KPPU is a quasi-judicial institution, as it has the authority to adjudicate and decide [on cases], even not as a judicial institution,” Misbahuddin explained. He added that the KPPU is an agency whose functions are related to judicial powers as referred to in Article 24 paragraph (3) of the 1945 Constitution, hence its position as the guardian of the pillar of a just economic democracy based on Pancasila as stipulated in Article 33 paragraph (4) must be strengthened within the state administration, by the support of an independent permanent secretariat in staffing and budgeting.

He argued that it wasn’t realized because of the ambiguity of Article 33 paragraphs (1), (2), and (4) of the LPMPUTS Law. The word ‘secretariat’ in Article 33 paragraphs (2), and (4) of the LPMPUTS Law has led to legal uncertainty and unfair treatment unlike treatment to secretariats in other institutions that are related to judicial powers based on the 1945 Constitution, as the KPPU’s secretariat is not treated as a secretariat general. In addition, Article 33 paragraph (2) of the LPMPUTS Law doesn’t provide a strong legal basis for the formation of work units that executes technical matters on business competition.

"Without a deputy as an implementing element, the optimization of the implementation of KPPU’s duties and functions will be hampered, especially amid rapidly developing digital economy and increasingly complex monopolistic practices and unfair competition. The phrase ‘the commission’s decisions’ in Article 34 paragraph (4) of Law No. 5 of 1999 has created legal uncertainty because it is not in accordance with the provisions on the formation of laws and regulations, which should be the authority of the president of the Republic of Indonesia as the holder of the government’s power according to Article 4 paragraph (1) of the 1945 Constitution," he stressed.

This resulted in a deadlock in institutional arrangements and staffing of the KPPU secretariat, which should have been integrated with the ASN institutional and staffing systems. The Petitioners have not received the recognition of fair guarantee, protection, and legal certainty and equal treatment before the law, as well as freedom from discriminatory employment status, financial rights, career development rights, and competency development rights as ASN at the secretariat general of other agencies whose functions are related to judicial powers according to the 1945 Constitution. 

Also read: Provisions regarding KPPU Challenged 

In the preliminary hearing, the Petitioners argued that their constitutional rights had 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 Petitioners believe the LPMPUTS Law doesn’t provide legal certainty to the KPPU as 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 believe that the word ‘secretariat’ as referred to in Article 34 paragraph (2) of Law No. 5 of 1999 is ambiguous as it is written in lower cases, resulting in interpretations of both function and position. 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.’

They also believe 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 (PPK), KPPU employees who were appointed at the establishment of the commission aren’t regulated with the provisions on 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 in managing its staff. 

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

Translation uploaded on 8/26/2020 06:26 WIB

Disclaimer: The original version of the news is in Indonesian. In case where any differences occur between the English and the Indonesian version, the Indonesian version will prevail.

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