TAXES
LAW
13
Kudri & Djamaris, Attorneys –
Counsellors At Law
O
n 20 September 2017, The Constitutional Court
(“Mahkamah Konstitusi” – “MK”) has rendered Decision No.
85/PUU-XIV/2016 (“Decision 85/2016’), which offers a new
interpretation of certain articles originally set out under Law No.
5 of 1999 on the Prohibition of Monopolistic and Unfair Business
Practices (“Antitrust Law”).
The petition was initially filled in a case relating to Business
Competition Supervisory Commission (“KPPU”) Decision No. 12/
KPPU-L/2015 (“KPPU Decision”). The Petitioner had requested a
review of three main legal issue, specifically:
1. The broad scope of the phrase “other parties” in Article 22,
Article 23 and Article 24;
2. The potential multiple interpretations of the phrase
“investigation” in Article 36 (c), (d), (h), and (i), and Article 41
paragraph (1-2); and
3. Criminal law as primum remidium under Antitrust Law in
Article 44 (4-5).
All of the aforementioned provisions in the Antitrust Law were
reviewed against the following provisions of the 1945 Republic of
Indonesia Constitution. The Petitioner argued that such a broad
interpretation had ended up creating legal uncertainty which could
in turn lead to multiple interpretations and conflicts in regard to
any authentic reading of the phrase “other parties”. Toward this
legal reasoning, MK has now ruled out that the phrase “other
parties” and now scaled-down the scope phrase “other parties”
to mean only “other businesses and/or business-related parties”.
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Afterward the Petitioner argued that phrase “investigation” does
not offer any clear definition of whether such investigations refer
to administrative or criminal investigations. MK decided the
phrase “investigation”, should be interpreted to mean “gathering
evidence to be used as proceeding materials”. Thus, the phrase
“investigation” now refers to administrative investigations and
not criminal investigations (pro justitia). MK also decided that any
investigation undertaken by the KPPU should be categorized as
an administrative investigation, because of its status as a state
auxiliary organ and KPPU is prohibited from undertaking any
criminal investigation.
MK has rejected the petitioner argument, which stated that the
the Antitrust Law emphasized criminal law as primum remidium
(first resort). In contrast, MK argued that criminal sanctions can
only be imposed after administrative sanctions have already been
ignored (last resort).
Kudri & Djamaris, Attorneys - Counselors
at Law
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Floor
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Email
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Website :
Arief Octovian, S.H.
Associate
+62 21 522 5453
Competition
New Constitutional Court Decision on the Antitrust Law
On Pg. 12, in the previous edition of Newsletter Law & Taxes, we mistakenly used
the wrong photo of the writer, Arief Octovian, S. H. Above is the correct photo. We
apologize for this error.
