The Independence of the Business Competition Court from the Perspective of Law Enforcement System in Indonesia

Fair competition law enforcement on business competition issues in Indonesia is very important to ensure the situation of conducive business competition and the enforcement in Law Number 5 of 1999 on the Prohibition of Monopolistic Practices and Unfair Business Competition, therefore the Commission for the Supervision of Business Competition of the Republic of Indonesia (KPPU) is actively involved in issuing related regulations with law enforcement procedures on business competition cases in Indonesia, which is through KPPU Regulation Number 1 of 2010 on Procedures for Case Handling. The judicial system of the business competition court in Indonesia can not be separated from the role of the KPPU as an institution that has the function of regulating and supervising competition behaviour, whether using prohibited activity patterns or agreements. In the context of law enforcement on business competition cases, KPPU has the authority from performing investigations to examining and deciding the competition cases in judicial institutions held by KPPU. Observing the main function of KPPU as a supervisory institution and situation regulator of the business competition in Indonesia, the authority of KPPU that perform investigations to judge business competition cases certainly is not an issue that needs to be debated. However, from the perspective of the justice system in Indonesia, KPPU’s authority in conducting investigations, examining, and deciding cases is a matter that needs to be studied more deeply, specifically regarding the guarantee of justice sense for business actors who are positioned as Reported Party.


Background
Generally, people are performing business activities to gain profit and income to meet their daily needs. Based on fulfilling life necessities, they run many businesses, both similar and different business activities. This situation will raise and create business competition among the business actors. Therefore, competition in a business is a natural thing. Then it can be said that business competition factor is an absolute requirement. (conditio sine qua non), to create market economy, which is the balance between demand and supply, although sometimes either fair or unfair competition arises. Fair business competition certainly has a positive impact on both fellow business and consumers. For business actors, fair business competition is a factor that raises motivation or stimulation to increase efficiency, productivity, innovation, and the quality of the products they produce. This surely has an impact on consumers, because they will get benefit from the fair business competition, for instance, consumers will get many choices and competitive price of the demanding product or service.
A competitive business atmosphere is an absolute requirement for developing countries, such as Indonesia, to achieve efficient economic growth, including the industrialization process. In a competitive market, companies will compete with each other to attract more consumers by selling their products at the lowest possible price. They also will compete to improve the product quality and services to consumers. To succeed in a competitive market, companies must strive in developing new production processes that are more efficient, as well as developing new products with new innovative designs. By this reason, companies need to develop and improve their technological capabilities, both process technology and product technology. This way hopefully will encourage the technological process and economic growth. 1 Regulation regarding the prohibition of monopoly and unfair business competition is necessary to ensure that the freedom to compete economically can perform without any obstacle because the essence of business actors in running the business is always competitive. Competition can be performed both positively and negatively. The negative (unfair) business competition will result in: a. The death or reduced of the competition among business actors; b. The arise of monopolistic practices, in which the market is only controlled by one business actor; c. The tendency of business actors to exploit consumers by selling expensive goods without adequate quality. 1 To ensure an atmosphere of fair business competition as mandated by Law Number 5 of 1999 on the Prohibition of Monopolistic Practices and Unfair Business Competition, it certainly must be followed by the establishment of a fair law enforcement system. Law Number 5 of 1999 on the Prohibition of Monopolistic Practices and Unfair Business Competition does not only regulate material law but also its procedural law (formal law). However, if it is examined further, it turns out that the procedure of the business competition law in Law Number 5 of 1999 on the Prohibition of Monopolistic Practices and Unfair Business Competition is not regulating in detail and clearly, for instance, procedural law in trials, legal effort. By this reason, the formal law of business competition is complemented by the Regulation of the Business Competition Supervisory Commission (KPPU) and the Regulation of the Supreme Court of the Republic of Indonesia.

Independence Concept of the Business Competition Court in Indonesia
According to the KPPU's legal structure, in Article 1 paragraph (2) of Presidential Decree Number 75 of 1999 as amended to Presidential Regulation Number 80 of 2008 as stated below: "The commission as referred in paragraph (1) is a non-structural institution which is independent from the influence and power of the government and other parties." This norm is a form of independence concept of the KPPU's legal structure. However, Business Competition Court in is not only viewing the KPPU's legal structure but also must refer to the KPPU's authority holistically. The independence of the judiciary is very important as it is used as a study because this case involves law enforcement. Generally, KPPU has extraordinary powers as executive, judicative, legislative, and consultative. 2 The extraordinary of KPPU is clearly visible in its authority as regulated in Article 36 of Law Number 5 of 1999 on the Prohibition of Monopolistic Practices and Unfair Business Competition as stated below: ;5. Obtaining,examining,and/or assessing letters,documents,or other evidence for investigation and/or examination; 6. Deciding and determining any harm of the other business actors or public; 7. Informing the Commission's decision to the business actor who is suspected in engaging in monopolistic practices and/or unfair business competition;

Imposing sanctions in the form of administrative action to business actors who violates the provision of the law.
Referring to the KPPU's authorities, it is clear that KPPU has extraordinary powers, from investigating to deciding the violation of the provision of the business competition law by imposing sanctions.

The Characteristics of Business Competition Procedural of Law in Indonesia
The characteristics of the Business Competition Procedural Law in Indonesia was initially born from the KPPU Regulations that arranged the procedures for handling cases. Typically, procedural law (formal law) in the material legal domain is regulated in-laws, for instance Formal Law of criminal is regulated in Law Number 8  Article 1 Number (23) "Examination Investigator is commission staff who is assigned to perform clarification, researches, and investigation activities." Article 1 Number (24) "Prosecution Investigator is commission staff who is assigned to perform filling activities or reading the Report of Alleged Violation at the Preliminary Examination, submitting evidence, presenting witnesses, and conveying conclusions at the follow-up examination." The positions of examination investigator and prosecution investigator are also part of KPPU's internal. Therefore, the positions of examination investigator, prosecution investigator, and Commission Council can be briefly described as follow: Based on that flow chart, it can be concluded that the position of KPPU in business competition procedural law context is not independent as another dispute court. From the clarification, researches, investigation, prosecution, to decision making by trials, are all performed by organs within the KPPU institution. Therefore, this Examination Investigator Clarification, Researches, and Investigation.

Prosecutor Investigator
Submission of Report on Alleged Violation (LDP), submitting evidence, presenting witnesses, and conveying conclusions.

Commission Assembly
Investigating and determining cases.
order is correlated with the theory of independence, which includes neutral characteristics. It is seen that the KPPU institution in the business competition procedural law is not independent.

Conclusion
The authority of KPPU from the clarification, researches, investigation, prosecution, to decision making, are all performed by organs within the KPPU institution. Therefore, this order is correlated with the theory of independence, which includes neutral characteristics. It is seen that the KPPU institution in the business competition procedural law is not independent.