Ministry of Trade’s expert staff on Trade of Services Frida Adiati testifying virtually at the judicial review hearing of Law No. 7 of 2014 on Trade, Tuesday (6/28/2021). Photo by Humas MK/Ifa.
Tuesday, June 28, 2022 | 15:20 WIB
JAKARTA, Public Relations—Another judicial review hearing of Law No. 7 of 2014 on Trade was held by the Constitutional Court (MK) on Tuesday, June 28, 2022. The petition for case No. 51/PUU-XX/2022 was filed by Muhammad Hasan Basri, a pecel lele vendor, who challenges Article 29 paragraph (1) of the Trade Law, which reads, “Businesspeople shall be prohibited from storing basic need goods and/or essential goods in a certain amount and time in the event of scarcity of goods, price volatility, and/or traffic constraints in Trade of Goods.”
At the virtual hearing, the Court heard the testimony of the president (Government) and the House of Representatives (DPR). Ministry of Trade’s expert staff on Trade of Services Frida Adiati said on behalf of the Government that the provision of Article 29 paragraph (1) of the Trade Law provides protection and guarantees the availability of basic goods including cooking oil, so that the Indonesian people including the Petitioner as a businessman have their basic needs fulfilled.
“The provision of the a quo article does not hinder or restrict the Petitioner’s right to have a job and a decent living for humanity. [He] can still work in his profession or other alternative jobs according his wishes,” she said virtually before the justice panel chaired by Deputy Chief Justice Aswanto.
She added that thanks to the article, the Government could formulate policies to control prices and distribution of cooking oil. It had ensured availability of bulk cooking oil and simple packaging at affordable prices. One of the Government’s efforts is to provide subsidies for unpackaged cooking oil in order to provide affordable cooking oil supply sustainably for the community, including micro, small, and medium enterprises.
She also explained that subsidy for unpackaged cooking oil was regulated by the Regulation of the Minister of Trade No. 1 of 2022 on Provision of Unpackaged Cooking Oil for Public Needs for Funding by the Palm Oil Plantation Fund Management Agency on January 11, 2022, which has been revoked and replaced by the Regulation of the Minister of Trade No. 3 of 2022.
To optimize the distribution of bulk cooking oil, she added, the Government created the bulk cooking oil public program (MGCR) through the Regulation of the Minister of Trade No. 33 of 2022 on the Regulatio of the Bulk Cooking Oil Public Program, hereinafter referred to as Permendag No. 33 of 2022. The MGCR has spread to 1200 locations until June 10, 2022. Retailers participating in this program was planned to number 10 thousand across 212 regencies/cities in Indonesia. Every MGCR transaction in public markets is carried out through a digital application.
Through the Decree of the Director-General of Domestic Trade No. 57 of 2022 on Restrictions over Bulk Cooking Oil in the MGCR, it was determined that the MGCR restrict retailers to sell at most 10 kg of bulk cooking oil per day to each consumer who provides their NIK (resident identity number).
Also read: Cooking Oil Scarcity Compels Pecel Lele Vendor to Challenge Trade Law
Government’s Policy
Government policy and programs to maintain the stability of cooking oil prices and ensure its distribution are further strengthened by Article 29 paragraph (1) of the Trade Law, which expressly prohibits business actors from storing basic needs and/or essential goods in large quantities at a certain time, especially when there is shortage, price fluctuations, and/or restrictions of flow of goods.
Violation of the provision is subject to imprisonment for a maximum of 5 years and or a maximum fine of 50 billion as stipulated in Article 107 of the Trade Law. The enactment of the provision is very important in order to maintain the supply and distribution of basic and essential goods.
“This article needs to be enforced because the provision provides protection for all Indonesians, including the Petitioner,” Frida explained.
The Government will always respect the right to maintain life and livelihood, Frida said. She asserted that the Petitioner’s argument that Article 29 paragraph (1) of the Trade Law had kept him from trying to maintain his life was his concern and his interpretation of the article.
The Ministry of Trade in collaboration with provincial and district/city governments has collected and reported data on prices and supplies of basic goods including cooking oil on a daily basis through the Basic Needs Market Monitoring System (SP2KP).
Frida also emphasized that the Trade Law serves as guidelines for daily trade. The law guarantees the rights and obligations of trade actors and ensures that relations between businesspeople are always in accordance with applicable regulations.
Responding to the Government’s statement, Constitutional Justice Suhartoyo asked Frida to explain in detail the scarcity, price fluctuations, and/or barriers of goods to explain whether the restrictions were relevant. “When there are elements referred to by the Presidential Regulation (Perpres) No. 11 of 2022, the distribution of goods should continue, there should not hoarding if there is consistency to overcome the three elements. Now, something needs to be explained, because if there is discrepancy,” he said.
He added that Article 29 paragraph (1) provides certain time limits and amounts broken down in Perpres No. 11. He then questioned how Article 107 could work if it was in violation of Article 29 paragraph (1), which seems to cover Perpres No. 11 or other matters relating to the amounts and time set in the perpres, whose penalties are regulated in the law.
“What about the harmony between the norms, as the details are in the perpres, but the criminal sanctions are in Article 107 of the [Trade] Law. Article 29 paragraph (1) cannot be implemented unless the perpres is included. Please explain and discussed this again later. We will ask for an explanation from the legislators,” Justice Suhartoyo said.
Meanwhile, Constitutional Justice Arief Hidayat said scarcity, price fluctuations, and so on were influenced by many factors. “Therefore, please explain the Government’s position in [hoping] the petitum is rejected, the legal construction it desired not at the level of the legal products below, but the explanation that this article does not conflict with the Constitution. Please explain so that the Court really sees the legislators’, especially in this case the Government’s, complete picture,” he said.
Also read: Pecel Lele Vendor Revises Petition on Trade Law
At the preliminary hearing, the Petitioner asserted that Article 29 paragraph (1) of the Trade Law had impaired his constitutional rights due to irregular distribution and storage of cooking oil, which led to scarcity and price hikes. “Although the norm contains prohibition, distributors are able to store cooking oil in certain quantity and period of time. This is what we challenge, Your Honors, the norm relating to certain quantity and period of time,” said legal counsel Ahmad Irawan.
He added that cooking oil scarcity made it difficult for the Petitioner to do his business. Meanwhile, high price would affect the Petitioner’s buying power and the prices of his products, thus hindering his business.
“Scarce or expensive cooking oil, based on logical reasoning, can put the Petitioner out of business. If [so], the Petitioner and his family cannot earn decent living, while as a citizen, pursuant to Article 27 paragraph (2) of the 1945 Constitution, he is entitled to decent work for humanity,” he stressed.
In the petitum, the Petitioner requested that the Court declare Article 29 paragraph (1) of the Trade Law unconstitutional and not legally binding.
Writer : Utami Argawati
Editor : Nur R.
PR : Raisa Ayudhita
Translator : Yuniar Widiastuti (NL)
Translation uploaded on 6/29/2022 11:24 WIB
Disclaimer: The original version of the news is in Indonesian. In case of any differences between the English and the Indonesian versions, the Indonesian version will prevail.
Tuesday, June 28, 2022 | 15:20 WIB 378