Legitimacy of KPPU Secretariat Questioned
Image

Petitioners Barid Effendi and Dedy Sani Ardi at the preliminary hearing of the judicial review of Law No. 5 of 1999 on the Prohibition of Monopolistic Practices and Unfair Business Competition, Wednesday (8/10/2022). Photo by Humas MK/Ifa.


Wednesday, August 10, 2022 | 16:03 WIB

JAKARTA (MKRI) – The Constitutional Court held the preliminary hearing of the material judicial review of Law No. 5 of 1999 on the Prohibition of Monopolistic Practices and Unfair Business Competition (LPMPUTS Law) as amended by Law No. 11 of 2020 on Job Creation on Wednesday, August 10, 2022. The petition No. 76/PUU-XX/2022 was filed by Barid Effendi and Dedy Sani Ardi (Petitioners I-II), who challenge Article 34 paragraph (4) of the LPMPUTS Law, which 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 Wahiduddin Adams (panel chair), Saldi Isra, and Suhartoyo, Petitioner I revealed that he is a retired civil servant (PNS) who is currently serving at the Commission for the Supervision of Business Competition (KPPU) for 10 years as the head of the administrative bureau and an expert staff for institution and cooperation. He said he did not receive the same position and monetary rights as bureau heads at other state institutions because the structural position of KPPU secretariat is not acknowledged by the government.

Meanwhile, Petitioner II revealed that he had started his career in 2001 at the KPPU secretariat as an administrative staff until October 1, 2019 before resigning as an expert staff for the Commission for Economy. The lack of legal certainty in the KPPU secretariat’s management resulted in the lack of legal status for his position and career and drove him to resign from KPPU and became an entrepreneur. He believed the KPPU and its secretariat’s legal legitimacy was crucial in supporting it to carry out its duties and authorities and answer the demands and challenges of the times so as to guarantee healthy and competitive business climate and equal business opportunities.

Petitioner I also alleged that Article 34 paragraph (4) of the LPMPUTS Law was unconstitutional because the constitutional authority to direct the organizational structure, duties, and functions of the secretariat and working group belong to the president pursuant to Article 4 paragraph (1) of the 1945 Constitution. Therefore, this delegation provision also contradicted Article 1 paragraph (3) of the 1945 Constitution as it did not go in line with the state administration order based on the law.

“The provision of Article 34 paragraph (4) of Law No. 5 of 1999 should not be implemented since it overlaps with provisions of other laws, such as the [State Civil Apparatus (ASN)] Law, the State Finance Law, the State Treasury Law, and the Government Administration Law. As such, the management of the KPPU secretariat since the beginning until today in assisting the commission can be questioned legally,” he asserted.

He believed the article did not mandate the president to manage the KPPU secretariat. The article was reiterated in Article 12 of the Presidential Decree (Keppres) No. 75 of 1999 on the Commission for the Supervision of Business Competition, as amended by the Presidential Regulation (Perpres) No. 80 of 2008, and was a legal foundation for organizational and HR management in the KPPU secretariat until today.

“The authority based on the provision of Article 34 paragraph (4) of Law No. 5 of 1999 granted to the Commission and reiterated in Article 12 of Keppres No. 75/1999 was limited only to regulate the organizational structure, duties, and functions of the secretariat, and nothing more,” Petitioner I asserted.

Abuse of Authority

Petitioner I explained the KPPU’s decision, which since its establishment was based on Keppres No. 75 of 1999 and which regulates the overall organization and staffing of the KPPU secretariat, clearly has no legal basis and exceeds its authority. This can be categorized as an abuse of authority by the Commission which Article 17 of the Government Administration Law prohibits.

In their petition, the Petitioners stated that by turning a blind eye to this issue, which clearly contradicts the Constitution and the legal order, the House of Representatives (DPR) as the initiator of the LPMPUTS Law seemed half-hearted in completing the amendment to the LPMPUTS Law, which had been initiated and entered into the national legislative program (Prolegnas) since 2013.

In the petitum, the Petitioners requested that the Court declare Article 34 paragraph (4) of Law No. 5 of 1999 (State Gazette of 1999 No. 33, Supplement to the State Gazette No. 3817) unconstitutional and not legally binding.

Justices’ Advice

In response, Justice Suhartoyo advised the Petitioners to explain their legal standing an constitutional impairment when they’re no longer working at the KPPU. “What it the relevance when you’re no longer working at the secretariat but arguing constitutional impairment. Meanwhile, another petition on Article 34 paragraph (4), No. 54 in 2020, was filed by an employee [of the KPPU]. You are no longer working there, please explain your constitutional impairment,” he said.

Justice Saldi Isra shared this sentiment. He asked them to clearly elaborated their legal standing and the legal reason to file the petition.

“There must be a clear explanation that both of you have legal standing,” he said.

Before the hearing was adjourned, the justice panel gave the Petitioners 14 workdays to revise the petition and until Tuesday, August 23 to submit the revised petition to the Registrar’s Office. 

Also read: 

Provisions regarding KPPU Challenged

Court Rejects Petition by Staff of KPPU Secretariat

Writer        : Utami Argawati
Editor        : Nur R.
PR            : Andhini S. F.
Translator  : Yuniar Widiastuti (NL)

Translation uploaded on 8/11/2022 13:29 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.


Wednesday, August 10, 2022 | 16:03 WIB 50