The preliminary hearing of the judicial review of Law No. 7 of 2014 on Trade as amended by Law No. 11 of 2020 on Job Creation, Tuesday (9/1/2022). Photo by MKRI/Ifa.
Tuesday, September 6, 2022 | 15:54 WIB
JAKARTA (MKRI)—The Constitutional Court (MK) held a preliminary hearing of the judicial review of Law No. 7 of 2014 on Trade as amended by Law No. 11 of 2020 on Job Creation on Tuesday, September 6, 2022. The case No. 84/PUU-XX/2022 was filed by entrepreneurs Rizky Puguh Wibowo, Zainal Hudha Purnama, and Minggus Umboh. They challenge Article 1 point 5 and the Elucidation to Article 9 of the Job Creation Law.
Article 1 point 5 of the Job Creation Law reads, “Goods shall be any object, either tangible and intangible, movable or immovable, consumable or inexhaustible, that can be traded, used, operated, or utilized by consumers or business actors.” Meanwhile, Elucidation to Article 9 reads, “The ‘pyramid scheme’ shall be the term/name of business activity that is not the result of the sale of goods. Such a business activity takes advantage of opportunities of the participation of business partners to obtain rewards or income, especially from the participation fees of other people who join later or after the business partners join.”
Legal counsel Eliadi Hulu revealed a concrete case where the Petitioners had been declared suspects and undergone a trial on August 1, 2022, where the public prosecutor read out their indictment. The Petitioners were indicted for violating Article 105 of the Trade Law by running a business not from the sale of goods. The question was whether trading robots and e-books are not goods as defined in Article 1 point 5 of the Trade Law. Therefore, according to the public prosecutor, that the Petitioners’ act met the element of ‘business activity that is not the result of the sale of goods.’
The Petitioners, however, believe trading robots and e-books are goods as there was an account for the purchase transaction, which contained the identity of the members and the means of trading. E-book ownership, they argued, can also be traced through the payment access code. They compared the ownership of trading robots to that of Instagram, Tiktok, dan Facebook accounts, which can be traded for the number of followers.
“Therefore, if the prosecutor asserts that trading robots are not foods, everything that functions electronically must also be declared non-goods,” Eliadi said before Constitutional Justices Manahan M. P. Sitompul (panel chair), Wahiduddin Adams, and Arief Hidayat.
The Petitioners also argued about the pyramid scheme. They are founders and owners of PT Trust Global Karya, which since 2020 has been producing educational e-books and software that function as trading robots, and have obtained trade permit. The Petitioners’ business, which relates to tech development, help the public make an analysis before investing. Trading robots, Eliadi said, have great potential in the development of AI (artificial intelligence). This is in line with the Government’s program to promote the use of technology and digitization. Trading robots are considered futures trading advisors by many.
Therefore, in the petitum, the Petitioners requested that the Court declare Article 1 point 5 of the Job Creation Law, as amended by the Job Creation Law unconstitutional. “[We also requested that the Court] declare the article not legally binding as long as not interpreted as “Goods shall be any object, either tangible and intangible, movable or immovable, consumable or inexhaustible, that can be traded, used, operated, or utilized by consumers or business actors, including software,” Eliadi emphasized.
Justices’ Advice
Constitutional Justice Arief Hidayat asserted that contradiction between the articles being petitioned and Article 1 of the 1945 Constitution were too far-fetched, so the Petitioners would find it difficult to elaborate their posita. He advised them to find a touchstone that is more closely related to those articles. “Such as Article 28, which could be a touchstone for this petition,” he said.
Next, Constitutional Justice Wahiduddin Adams advised the Petitioners on the general provisions on the articles, which they would need to elaborate the definition of goods and pyramid scheme on those articles. The provisions refer to many other articles, and could result in the annulment of the law in its entirety.
Meanwhile, Constitutional Justice Manahan M. P. Sitompul advised the Petitioners to review the article in the Trade Law being petitioned. The Job Creation Law, he explained, contains revisions that either eliminate entire norms, change part of norms, or maintain norms. “You must be firm on Article 5 of the Trade Law and its elucidation, whether the norms remain or were amended. This is important to be straightened out so as to relate it to the entire petition,” he said.
Before concluding the session, Justice Manahan informed the Petitioners that they had until September 19 to revise the petition and submit the revised petition electronically via email or in person to the Registrar’s Office.
Writer : Sri Pujianti
Editor : Lulu Anjarsari P.
PR : Fitri Yuliana
Translator : Yuniar Widiastuti (NL)
Translation uploaded on 9/9/2022 15:52 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, September 06, 2022 | 15:54 WIB 202