The Supreme Auditor (BPK) filed a petition on Act No. 28 Year 2007 on The Third Reforms on Act No. 6 Year 1983 on General Stipulation and Procedures of Taxation (Act on KUP) towards The 1945 Constitution to the Constitutional Court (MK). In the initial trial conducted on Tuesday (5/2) morning, the Head of the Supreme Auditor presented alongside with the Supreme Auditor’s legal counsel Bambang Widjojanto, S.H., L.LM., and Iskandar Sonhadji, S.H. Meanwhile as the representation of the government was the Minister of Finance (Menkeu) Sri Mulyani Indrawati alongside with The General Secretaray of the Ministry of Finance Mulia P. Nasution and the General Director of Taxation Darmin Nasution. The House of Representatives was represented by Patrialis Akbar and former Head of Working Committee of Drafting of the Act Rizal Jalil.

In the trial, Anwar Nasution stated the reasons why the Supreme Auditor filed a trial case on the stipulations in Article 34 Paragraph (2a) letter b and the Explanation of Article 34 Paragraph (2a) Act on KUP because those stipulations had limited the Supreme Auditor’s constitutional rights in examining  the management and responsibilities of the State Finance freely and independently as regulated in Article 23E Paragraph (1) of the 1945 Constitution. As the result, Anwar continued, the Supreme Auditor was not able to conduct audit on State’s tax income because the tax officers and or experts in the area of the General Director of Taxation could only give information to the auditor after receiving approval from the Minister of Finance.

“The sole intention of establishing the Supreme Auditor is to check every cent of the money collected by the State, no matter where it is from, whereever it is kept and for whatever it is used,” exclaimed Anwar. By eliminating the direct access to the tax information, continued the Head of Supreme Auditor also former Senior Deputy in Bank of Indonesia, the Supreme Auditor could not check the the State’s Finance from tax. The effect of the information limitation also affected ot the Central Government Financial Report (LKPP) in general.

As publicly known, in three consecutive years LKPP had received disclaimer opinion from the Supreme Auditor. “Since we didn’t have the information, the Supreme Auditor could not possibly give opinions, findings, conclusions and recommendation on the result of the examination. As the result, in three consecutive years, the LKPPs of the Budget years of 2004-2006, had always received disclaimer opinions from the Supreme Auditor,” added Anwar.

Meanwhile the legal counsel of the Supreme Auditor, Bambang Widjojanto when explaining the legal construction of the petition explained that the Article 34 Paragraph (2a) letter b of the aformentioned Act allowing the tax officers and/or experts to be able to give information and/or documents to the State’s Bodies and Institutions with authority to conduct examination in State’s Finance. Nevertheless, the Article to the Petitioner’s interpretation was also created limitation that the officers and/or experts to be able to give such information was only the one “decided by the Ministry of Finance”. Therefore according to Bambang, the limitation in form of Minister’s stipulation had made the exception norm meaningless. 

Bambang also added, because of the limitation, the information given to the Supreme Auditor had been very limited. “If we read carefully the explanation on Article 34 Paragraph (2a), it says not all data or information can be given to the Supreme Auditor, because the identity of the tax object is the only general information on tax,” he explained.

The Minister, Sri Mulyani, who had prepared to give information as one of the lawmaking partie, requested the Constitutional Justice Board for a trial reschedule to hear the information from the Government.

“by the existence of abnormalities whether in the time order or in the changing of the Petitioner and the content of the petition and considering the importance of the material being tested then it was not possible for the Government to prepare the materials needed for the trial on February 5, 2008 (today)”, excused Sri Mulyani.

The same request was made by the legal counsel of the Parliament, Patrialis Akbar. Even though so, the member of Commission III also reminded the Petitioner that the basic principle of the Article 23E paragraph (1) of the 1945 Constitution was to give emphasis that the free and independent things reffered to the Supreme Auditor as an institution, and not the working procedure. “We consider that the formulation (Article 34 Paragraph (2a) letter b Act on KUP) was aiming at free and independent working procedure,” said Patrialis.

Moreover, according to the Politician from the National Mandate Party the stipulation on the formulation to be brought on trial was actually not to give the Supreme Auditor some restrictions, but it was aiming at giving signals to the minister of finance, especially in the Tax General Directorate, to install competent officers so that they could help the Supreme Auditor’s performance. “So the performance of the Supreme Auditor will result in something better,” he added.

On the request of the Government and the Parliament, the Constitutional Justice Board chaired by the Chief Justice of the Constitutional Court, Jimly Asshiddiqie stated that the agenda for hearing the information Government and the Parliament would be conducted in the next trial.

Normative Court
In the trial, the Chief Justice also reminded every party, whether the Petitioner, Government, or the Parliament that the Constitutional Court was a justicial institution that put norms in Acts in trial, and not person to person. The Chief Justice also appreciated the steps taken by the Supreme Auditor in resolving different interpretation on an Act.

“We only have a little chance to debate. We usually debate in  the newspaper, that’s why we never meet an agreement. Everybody speaking with personal perception, even the newspaper has its personal perception. So I think it is good to use the Constitutional Court forum to debate norms of acts because it involves our general interest as a Country and Nation. So there is no personal problem here,” reminded Jimly. [ardli/Yogi Djatnika]