LEGAL ASPECT OF “THRIFTING”

By :

Dr. EKO WIYONO, SH, M. Hum

(Senior Advisor at Legis Priori Jakarta Law Office)

The people of Indonesia are once again enlivened by thrifting raids carried out by law enforcement officials against traders of imported used clothes and even the mass media has repeatedly published news about thrifting in the morning, afternoon and evening news segments, especially on online social media uploading of thrifting goods. with the narrative: “no need to buy Eid clothes. At the office, many of the confiscated goods will be brought home later” (what is meant by confiscated imported used clothing items will be brought home by unscrupulous officers to be given to the younger sibling at home). Even though the news was quite widespread and was a trending topic on social media uploads and turned out to be hoax news, there were still some members of the public who asked what thrifting really was and why it was prohibited and raids were carried out even to the point where acts of confiscation and destruction of goods took place. these are used clothes that are sold in the market, in this case, imported used clothes that come from abroad.

The origin of the term thrifting comes from a term in English, namely from the word thrift which simply means thrifty or savings. In general, the notion of thrifting is that it leads to shopping for used products, which are considered to have lower prices, so that they are considered to make shopping more economical and thrifting activities are usually intended for activities such as shopping for used products, both local and imported products. Therefore, thrifting activities are usually carried out by buying used products, which are more trendy, in the form of used clothes at shops specifically selling used clothes from abroad (imported used clothes).

Lately, the fashion trend has been developing quite rapidly, especially since the existence of fashion that was held on the street, to be precise at the crossing in the Senayan area, which is often known as Citayem Fashion Week, seems to have also been one of the factors in the increase in fashion trade in Indonesia. However, it is undeniable that for the lower middle class it is quite difficult to participate in enlivening the Citayem Fashion Week trend by having to buy clothes made of expensive materials, so thrifting for imported used clothes is an alternative that can be done by the general public so that thrifting activities become more lively.

The factors that cause Indonesians to prefer buying imported used clothes include:

1. Prices are much cheaper because of second hand goods;
2. The quality of imported clothes is better;
3. Fashion is more trendy to follow the development of international fashion;

Thrifting, which is currently rife and busy being discussed by both the mass media in reporting on electronic media television and online media as well as the community itself in their daily lives, especially for shopping activities for imported used clothes in special shops that trade and provide imported used clothes, has emerged as a phenomenal issue due to with the prohibition from the Indonesian government to import goods in the form of used clothing into the country of Indonesia.

The ban on the import of used clothes or clothes by the government into Indonesia refers to the issuance of the Regulation of the Minister of Trade of the Republic of Indonesia Number 18 of 2021 as amended by the Regulation of the Minister of Trade of the Republic of Indonesia Number 40 of 2022 concerning Amendments to the Regulation of the Minister of Trade of the Republic of Indonesia Number 18 of 2021 concerning Goods Prohibited Export and Prohibited Import Goods. In the provisions of Article 2 paragraph (3) it is explained that “used imported clothing” includes goods that are prohibited from importing. Goods prohibited from importing are in the form of used bags, used sacks, and used clothes.

To the government’s ban on importing used clothes as thrifting which is currently rife in the community, the thrifting fan community responds by disagreeing with the ban on the grounds that the prices of goods, namely imported used clothes, are cheaper while the fashion and quality are quite branded, so Actually, according to them, thrifting is more profitable, especially for members of the public whose purchasing power is rather limited. On the other hand, traders of imported used clothes are not discouraged in continuing to sell imported used clothes, even though several actions have been taken by the authorities on the grounds that selling imported used clothes is the only source of their daily livelihood.

From a normative juridical point of view, the provisions regarding the prohibition of importing used goods as regulated by the Minister of Trade of the Republic of Indonesia Number 18 of 2021 are contained in Article 2 paragraph (3), namely “imported used clothing” includes goods that are prohibited from importing in addition to used bags, used sacks, and regulatory norms referred to originate from the provisions of the law, namely Law Number: 7 of 2014 concerning Trade in Article 47 paragraph (1) it is emphasized that: “Every importer is obliged to import goods in a new condition”, and further in Article 51 paragraph (1) it is determined : “Importers are prohibited from importing goods that are determined as goods that are prohibited from being imported”. So that the prohibition norm referred to is linear with the provisions of Article 2 paragraph (3) of the Regulation of the Minister of Trade of the Republic of Indonesia which stipulates that “imported used clothing” includes goods that are prohibited from being imported into the country of Indonesia.

After the enactment of Law Number: 11 of 2020 concerning: Job Creation, then in the provisions of Article 46 number 7 which has changed the provisions of Article 51 paragraph (1) of Law Number 7 of 2014 Concerning Trade, it also further confirms that: Importers are prohibited importing goods designated as goods to be imported in this case what is meant by “used clothing”.

The legal aspect of thrifting is the activity of shopping for used products which are considered to have lower prices, so that it is considered to make shopping more economical, especially in relation to thrifting activities which are carried out by buying used products which are more trendy in the form of used clothes in special shops selling used clothes originating from abroad (imported used clothes), sourced from the Trade Law Number: 7 of 2014 which replaced Law Number 2 Prp 1960 Concerning Trade which was previously still valid Bedrijfsreglementerings Ordonantie 1934, Staatsblad 1938 Number: 86, in principle based on the background philosophically that national development in the economic field is carried out to promote general welfare so that the role of trade as the prime mover in increasing national economic development is sought to provide support in increasing production and equalizing income and strengthening the competitiveness of domestic products for the sake of the national interest.

Therefore, Indonesia’s national trade as the main driver of economic development is not limited to economic activities related to transactions of goods and/or services either domestically or across countries, but must also be carried out with national interests aligned with the conception of regulation in the field of trade according to the ideals the Indonesian nation, namely a just and prosperous society as mandated by the Preamble to the 1945 Constitution of the Unitary State of the Republic of Indonesia. So that regulation with the Trade Law and its implementing legal regulations is aimed at increasing national economic growth based on the principles of legal certainty, justice, health and security business as well as benefits and togetherness and environmental awareness.

Guided by the legal norms of the Trade Law Number: 7 of 2014 referred to in Article 3 it is stated: the regulation of trade activities is intended, among other things, to increase national economic growth, increase the use and trade of domestic products, improve the image of domestic products, and increase supervision of goods and/or traded services. In order to achieve the intended purpose, it is necessary to regulate the entry of imported product goods by importers, namely individuals or institutions or business entities, whether in the form of legal entities or not, which carry out import activities. Which in connection with the legal provisions of article 45 paragraph (1) that imports of goods can only be carried out by importers who have importer identifiers based on the stipulation of the Minister of Trade, meaning that not everyone can trade imported goods from abroad to be brought in and traded into the territory Indonesia, but must have a license as an importer and meet the requirements determined by law.

Furthermore, in the provisions of Article 46 paragraph (1) of Law Number 7 of 2014 it is determined that the importer is fully responsible for the imported goods and then in paragraph (2) it is determined that the importer is not responsible for the imported goods as referred to in paragraph ( 1) subject to administrative sanctions in the form of license revocation, recognition, and/or determination in the field of trade.

Related to the trend issue regarding thrifting, the provisions of Article 47 of Law Number 7 of 2014 stipulate that:

(1) Every importer is obligated to import goods in new condition;

(2) In certain cases the Minister may stipulate that the imported goods are not new;

(3) ……………………………;

(4) Further provisions regarding determination of imported goods in non-new condition as referred to in paragraph (2) shall be regulated by Ministerial Regulation;

Furthermore, Article 51 paragraph (2) of Law Number 7 of 2014 stipulates that: Importers are prohibited from importing goods that are designated as goods that are prohibited from being imported. Similarly, Article 52 paragraph (2) limits that importers are prohibited from importing goods that are not in accordance with the provisions on restrictions on goods for import.

In this connection, the Regulation of the Minister of Trade Number: 18 of 2021 as amended by the Regulation of the Minister of Trade of the Republic of Indonesia Number 40 of 2022 concerning Amendments to the Regulation of the Minister of Trade of the Republic of Indonesia Number 18 of 2021 in the provisions of Article 2 paragraph (3) explains that “used clothing import” includes goods that are prohibited from importing besides used bags and used sacks. This means that based on this description, the legal aspect of thrifting can be seen from the form of goods imported clothes are in the form of “used clothes”, then according to the provisions of the Regulation of the Minister of Trade “used imported clothes” are qualified as imported objects that are prohibited from being imported into the territory of Indonesia.

As for legal sanctions for acts of thrifting, namely the trade of imported used clothes, it can be subject to Article 112 paragraph (2) of Law Number 7 of 2014 that: “Importers who import goods that are determined as goods that are prohibited from being imported as referred to in Article 51 paragraph (1) shall be subject to imprisonment for a maximum of 5 (five) years and/or a maximum fine of Rp. 5,000,000,000.00 (five billion rupiahs)”.

Furthermore, in Article 109 of Law Number 11 of 2020 concerning Job Creation it is explained more explicitly that: “Manufacturers or Importers who trade goods related to security, safety, health and/or the environment which are not registered with the Central Government as referred to in Article 32 paragraph (1) which results in victims/damage to security, safety, health and/or the environment is imprisoned with a maximum imprisonment of 1 (one) year and/or a maximum fine of Rp. 5,000,000,000.00 (five billion rupiahs.”

So that referring to the provisions of Article 112 paragraph (2) and in line with the provisions of Article 46 paragraph (1) of the Trade Law Number 7 of 2014 above shows that the criminal threat against thrifting is quite high and besides being able to be threatened with criminal cumulatively, namely that it can be sentenced imprisonment and also a fine, it turns out that thrifting can also be subject to additional punishment in the form of administrative sanctions in the form of revocation of a trading license.

In reporting on online social media tempo.co. Jakarta, Saturday, 1 April 2023 edition published news that the President had also strictly prohibited the thrifting business, the government was asked to investigate all clothing importer permits since 2018 which was then followed up by the Ministry of Commerce and the Police by enforcing the law in the form of confiscation and destruction of goods in the form of imported used clothing from traders. However, because cheap and branded factors are the main attraction of imported used clothing, so even though it has been repeatedly informed to the public that imported used clothing is included in the category of illegal goods that are illegally smuggled from abroad, it does not make traders feel deterrent, on the contrary, business thrifting is increasingly widespread with a turnover of tens or even hundreds of bales/bags of imported used clothing on the general market. In fact, by buying imported used clothes, both the seller and the buyer knowingly or not have violated trade rules.

The government’s ban on imports of goods in the form of used clothes in the context of thrifting is based on a broader objective which is generally stated in Article 50 paragraph (2) of the Trade Law Number 7 of 2014, that: The government prohibits the Import or Export of Goods for the benefit of national for the following reasons:

a. To protect national interests or public interests, including social, cultural and moral society;

b. To protect intellectual property rights, and/or;

c. To protect the health and safety of humans, animals, fish, plants and the environment;

Also in line with the provisions of Article 54 paragraph (1) of the Trade Law Number 7 of 2014, that: The government can limit the Export and Import of Goods for national interests on the grounds that:

a. To protect national security or public interest, and/or;

b. To protect the health and safety of humans, animals, fish, plants and the environment;

This means that the government’s basic considerations for banning the import trade of used clothes from abroad besides aiming to protect the interests of the general public, especially in the economic sector by prioritizing increasing national economic growth by increasing the use and trade of domestic products and improving the image of domestic products themselves, are also intended to better protect the health and safety of the people themselves, in this case the imported clothing goods referred to are used goods whose specifications are unknown as goods that are healthy and safe to wear and use.

This is confirmed by the provisions of Article 1 paragraph (1) of Law Number 8 of 1999 concerning Consumer Protection, which explains that: “Consumer protection is all efforts that guarantee legal certainty to provide protection to consumers”, and then in Article 4 letter a, it is stated that: “consumers have rights in the form of the right to comfort and safety in consuming goods and/or services”;

So one thing that is more urgent to understand is that what if it has happened in a society that is currently trendy to carry out thrifting activities in the form of trade in imported used clothes carried out by capital owners and buyers of imported used clothes for practical reasons both from a price point of view, quality and trending fashion that can be followed by people with a limited economic level (?) The question that is quite jolting our minds is then what about imported goods in the form of used clothes that have already been imported in large batches in accordance with the high market demand (?) What are these goods? -these imported used clothes must be confiscated, destroyed or what about aspects of legal solutions or economic solutions that must be carried out by all parties, both the government and trading actors, especially importers of imported used clothes or even by the community itself as consumers (?).

One of the solution steps taken in law enforcement against the thrifting phenomenon is still in the persuasive stage with an appeal and issuing a temporary policy by providing an opportunity for traders of imported used clothing to still be able to sell imported used clothing until the stock of goods is already in the hands of the traders are sold out with a note that they are no longer allowed to buy again from the importer. Even further, the Director General of Consumer Protection and Commerce, Ministry of Trade of the Republic of Indonesia in the April 3 2023 edition of Kompas.com stated: before this year’s Eid Al-Fitr, the government will still only warn the traders of imported used clothing to stop their activities.

As for the actual importers from the legal aspect related to regulatory provisions in the existing legal norms, it can be seen from the provisions of Article 53 of the Trade Law Number 7 of 2014, which basically determines: “Importers who are subject to administrative sanctions as referred to in Article 52 paragraph (5) the imported goods must be re-exported, destroyed by the importer, or otherwise determined by the Minister”. However, because the thrifting is still at a phenomenal level and no legal action has been taken, the actions required by the importer as referred to in Article 53 paragraph (5) namely in the form of re-exporting or self-destruction by the importer have not been carried out concretely in the process. law enforcement and until now it is still in the form of a written warning.

However, it turns out that the real conditions on the ground now, in its development, law enforcement against illegal thrifting has begun to take action in real terms by law enforcement officials, as can be seen in the detik.bali online social media news, April 4th 2023 edition, which means the day after that, the Nusa Tenggara Police Barat has arrested an import trader from Mataram for selling 31 bales/sacks of used imported clothes online and offline, which received shipments from one of the distributors on the island of Bali. Furthermore, in the detik.sumut online news it was also reported that the Nibung Bay Customs and Excise had destroyed the used imported goods as a result of prosecution of customs and excise and had become the property of the state (the catch without being found by the perpetrators made the status of the goods resnulius / no-man’s land so that they became the property of the state) by means of The illegal goods were piled in a pit and then burned to be destroyed with a total value of Rp. 4.6 billion because imported used goods can disrupt domestic small industries and can also cause health, safety and environmental problems because these used imported goods can be categorized as as a waste product.

The above facts show that in law enforcement against thrifting which is currently widespread in society by law enforcement officials who are qualified as illegal acts and unlawful acts, especially the Trade Law and the Consumer Protection Law, they are still carried out separately and without coordination. in a cross-sectoral manner among law enforcement officials in a comprehensive manner within the Criminal Justice System, better known as the Integrated Criminal Justice System.

Quoting Soerjono Soekanto’s opinion, that there are factors that influence law enforcement so that law enforcement becomes truly effective, namely:

a. Legal regulation factor;

b. Law enforcement factors;

c. Facility and infrastructure factors in law enforcement;

d. Community factors;

e. Community Culture Factors;

So that law enforcement against violations and unlawful acts in thrifting activities in the form of trade in used imported clothes can be carried out effectively, the influencing factors mentioned above must be in the right conditions, namely:

a. Regulatory norms regarding the trading system for the trade of imported used clothing which have been regulated both in the Trade Law Number 7 of 2014 and the Consumer Protection Law Number: 8 of 1999 and the issuance of Regulation of the Minister of Trade of the Republic of Indonesia Number: 18 of 2021 as implementing regulations, presumably needs to be supported by more concrete technical guidelines (juknis) or implementation guidelines (juklak) so that the said thrifting laws and regulations can be implemented in a more targeted manner;

b. Law enforcement officials in the context of upholding the law in the field, it is necessary to have a common perception among law enforcement officials followed by the same policies and concrete steps in integrated law enforcement among law enforcement officials within the framework of the Integrated Criminal Justice System in accordance with their respective roles by putting ego aside. sectorally in a professional manner so that more optimal results will be obtained and not run separately, and it is possible to strive for increased cooperation, for example, integrated coordination between the Police, the Ministry of Commerce, the Ministry of Finance ic. the Director General of Customs and Excise, as well as other related parties in taking action so that law enforcement is carried out more optimally;

c. The provision of facilities and infrastructure is also an essential factor, especially reliable human resources with sufficient understanding and skills regarding thrifting as well as the provision of budgetary facilities for carrying out enforcement in the field which are available proportionally and presumably necessary storage facilities designated for imported used clothing items resulting from enforcement before a further legal process is carried out in the form of executing the destruction of goods, for example after a court decision has been made or as a catch without the culprit being found (res nulius);

d. From the point of view of public awareness, especially traders and buyers, it is necessary to socialize more massively about thrifting that trading activities of imported used clothes are illegal and prohibited by law which aims to serve the national interest, especially improving the people’s economy by prioritizing domestic products and not imported products. is a priority, especially in the form of used goods so that the ban on the trade of imported used clothes is more aimed at protecting the health and comfort of the people themselves because imported used clothes are in the category of waste;

e. In terms of legal culture as a result of human creativity, taste and initiative in life, the underlying values ​​are the conceptions that need to be understood by the public regarding what is good and what is bad for the trade of imported used clothing where the noble goal in regulating thrifting is solely for the protection of domestic products and is something that is more important than the products of other countries especially in the qualification of used goods in the category of waste which should be immediately abandoned for the sake of the results of the nation’s own products;

Guided by the rationale as described above, it is hoped that law enforcement against thrifting will be more effective and achieve optimal results if the factors that influence the effectiveness of law enforcement can be carried out synergistically by stakeholders both policy-making officials in formulating laws and regulations. invitations that are easier to understand and implementing apparatus for law enforcement comprehensively in an integrated context and not forgetting the participation of the community is also an important element so that with the support of a culture of love for domestic products an understanding of legal awareness can be created that thrifting does not guarantee that it will bring more profit value but needs to be thought about and it is also considered that the emergence of an element of loss for the community itself, especially as consumers of thrifting, turns out that imported used clothing items qualify as waste as well as the legal aspect that thrifting is illegal and qualifies as an unlawful act which of course can be threatened with sanctions.

So hopefully useful.