The position of the Commission Decree and RulesApril 6, 2010
KPPU as a State institution established by Presidential Decree Number 75 of 1999 as amended by Presidential Regulation Number 80 Year 2008, for fulfilling their duties and powers as stipulated in Law No. 5 year 1999 concerning Prohibition of monopolistic and unfair business competition .
KPPU duties as stipulated in Law No. 5 / 1999 Article 35 as follows:
- assesses the agreement which may result in monopolistic practices and or unfair business competition as stipulated in Article 4 to Article 16;
- conduct assessment activities and / or actions of business actors which may result in monopolistic practices and or unfair business competition as stipulated in Article 17 through Article 24;
- assess the presence or absence of abuse of dominant position which may result in monopolistic practices and or unfair business competition as stipulated in Article 25 through Article 28;
- take action in accordance with the authority of the Commission as stipulated in Article 36;
- will provide advice on government policies related monopolistic practices and or unfair business competition;
- prepare guidelines and or publications related to this Act;
- provide regular reports on the work of the Commission to the President and Council of Representatives.
While KPPU authority as stipulated in Law No. 5 / 1999 Article 36 as follows:
- receive reports from public and or business actors regarding allegations of monopolistic practices and or unfair business competition;
- doing research about the alleged existence of commercial activity and or actions of business actors which may result in monopolistic practices and or unfair business competition;
- conduct an investigation and or examination on suspected cases of monopolistic practices and or unfair business competition reported by the public or by business actors or discovered by the Commission as a result of his research;
- conclude the results of the investigation and or examination of the presence or absence of monopolistic practices and or unfair business competition;
- summon business actors suspected of committing violations of the provisions of this Act;
- call and present witnesses, expert witnesses, and anyone who considered knowing violation of the provisions of this Act;
- investigators asked for help to bring business actors, witnesses, expert witnesses, or any person referred to letters e and f, are not willing to fulfill the call of the Commission;
- ask for information from government agencies in connection with the investigation and / or examinations of business actors violating the provisions of this Act;
- receive, examine, and / or evaluate letters, documents or other evidence to the investigation and or examination;
- decide and determine the presence or absence of losses on the part of other business actors or society;
- notify the Commission decision to business actors suspected of monopolistic practices and or unfair business competition;
- impose sanctions in the form of administrative action to business actors who violate the provisions of this Act.
In performing its duties and powers as mentioned above KPPU as State agencies issued a legal product in the form of regulations and the decree, how is the legal position of the two products in the legislation in Indonesia.
In the provisions of Law Number 10 Year 2004 on the Establishment of Laws in Article 1 number 2, which is referred to as the Laws are written rules established by the State agency or authorized official and binding generally.
From the description, there are several elements, namely: the first written regulations; the second established by State agencies or authorized officials; and the third-binding generally.
Regulations issued by the KPPU must meet the above element as follows:
First: Regulations issued by KPPU are written rules and always published in the website KPPU;
Second: State Institutions or authorized officer, KPPU is a State institution established under Presidential Decree No. 75 of 1999 as amended by Presidential Regulation Number 80 Year 2008, has the task of preparing regulations as set in Article 35 letter f of Law Number 5 year 1999 that’s compiling guidelines and or publications related to Law No. 5 year 1999, guidelines in a large dictionary of Indonesian in http://pusatbahasa.diknas.go.id/kbbi/index.php defined as follows: pe • do • man n 1. tool to indicate wind direction or eye (usually as an injection magnet hours); compass: before there was -, people use stars to determine the direction of the boat trip; 2. collection of basic provisions that give direction on how things should be done; 3. the (principal) that’s the basis (the handle, instructions, etc.) to determine or implement something: in addition to other requirements, the editors need to master – spelling; 4. leader (which explains how to run or manage associations): a circular letter from – big;
ber • pe • do • man v 1. use guidelines: we form citizens who had to bow ~ Pancasila and the state; 2. lead, lead (to) …; adhere (to); by example: in determining the pace he always ~ to experience;
me • me • do • mani v underlie the guidelines: ~ should judge the written law in deciding cases. From an understanding of Indonesian dictionaries such guidelines can be interpreted as a rule or regulation which the act or acts while in the Elucidation of Article 35 letter f of Law Number 5 year 1999 only written quite clearly. Guidelines made KPPU is associated with Law Number 5 year 1999;
Third: Binds generally, the Regulations issued by KPPU binding on the entire population of Indonesia, especially for business people and other parties concerned, KPPU Regulation not only hedge against certain parties just like the decision to invest in the Territory of the Republic of Indonesia, which applies only to parties are admitted the decision.
Hierarchy where the legislation as regulated in Law Number 10 Year 2004 on the Establishment of Legislation regulations as follows:
a. Constitution of the Republic of Indonesia Year 1945;
b. Law / Government Regulation in Lieu of Law;
c. Government Regulation;
d. Regulation of the President;
e. Local regulations.
Whereas Article 7 paragraph (4) regulate other types of regulations that are not called upon to be recognized and have binding legal force along ordered by the legislation is higher. Regulations issued by KPPU was not mentioned by the hierarchy of legislation, but in the Explanation of Article 7 paragraph (4) of Law Number 10 year 2004 as follows: “This type of legislation selain in this provision, among others, the regulations issued by the People’s Consultative Assembly and House of Representatives Regional Representatives Council, Supreme Court, Constitutional Court, Supreme Audit Board, Bank Indonesia, the Minister, the head of the agency, agencies, commissions or the level established by law or by order of government legislation, the Provincial House of Representatives, the Governor, the Regional Representatives Council District, Regent / Mayor, Village Head or the same level “, which the Commission rules other than those mentioned as a Regulation referred to in Article 7 paragraph (1). Other Conditions are recognized and have binding legal force if ordered by law and regulation is higher. As explained in the element as the second legislation, generally KPPU ordered by the Act (regulation is higher) to make guidelines relating to the Law No. 5 of 1999 and Article 38 paragraph (4) of Law Number 5 years 1999 which ordered directly to KPPU to make rules reporting procedures.
So every regulation issued by KPPU represents Laws as referred to in Law Number 10 Year 2004 on the establishment Laws, which generally binds the same as other regulations issued by other State institutions.
Establishment of Rules and the decision issued by KPPU shall follow the provisions in Act 10 of 2004, this is as stipulated in Article 54 “Techniques for preparing and / or shape of the Presidential Decree, Decree of the Head of the People’s Consultative Assembly and House of Representatives Leadership Decision, Decision Leaders Regional Representatives Council, the Chairman of the Supreme Court, the Chairman of the Constitutional Court, Decision of the Head of Audit Agency, the Governor of Bank Indonesia Decree, Decree of the Minister, the head of the agency decision, agency, or commission level, the decision of Head of the Provincial People’s Representative Council, the decision of the Governor, Decision of the Regional Representatives Council Chairman District, Decision of the Regent / Mayor, the decision of the mayor or the same level must be guided by the technical preparation and / or shapes prescribed in this Act. ”
Whereas Decisions issued KPPU has set the mandatory nature of the adjustment to be referred to as the Regulations or Rules of the Commission, as provided for in Article 56 of Act 10 of 2004 All of the Presidential Decree, Ministerial Decree, Decree of the Governor, the decision of the Regent / Mayor, or other official decisions referred to in Article 54 which has a characteristic set, which already existed before this Act applies, should read the rules, they do not conflict with this Act.
In conclusion, Decisions issued by KPPU has character set should be turned into Rule, while the decree issued KPPU has a function to form, establish, raise, and others continue to use the Decision.
Commission rules are law and regulation in general and binding to the stakeholders associated with the implementation of Law No. 5 Year 1999.