Preliminary hearing of the judicial review of the Law on Access to Financial Information for Tax Purposes, Tuesday (9/1) in the Courtroom of the Constitutional Court. Photo by Humas MK/Ganie.

The Constitutional Court (MK) held a preliminary hearing of the judicial review of Articles 1, 2, and 8 of the appendix to Law No. 9/2017 on the Stipulation of Government Regulation in Lieu of No. 1/2017 on Access to Financial Information for Tax Purposes into Law, Tuesday (9/1). The Petitioner of the case 102/PUU-XV/2017 is E. Fernando M. Manullang, a lecturer at the Faculty of Law at the University of Indonesia.

The Petitioner claimed that he had suffered constitutional damage due to the enactment of the provisions of the a quo law, which had caused banks no longer obligated to maintain the confidentiality of their customers. "This has led to uncertainty of fair recognition, assurance, protection, and legal certainty in defending the right to property under the Petitioners\' control," he said in a session presided over by Constitutional Justice Suhartoyo.

Fernando, without attorney, explained that he has a savings account at a bank. With the enactment of Law No. 9/2017, the potential losses that can be ascertained are banks and/or other financial institutions may intentionally or unintentionally and/or directly and/or indirectly disclaim any responsibility for guarding the privacy of every Indonesian citizen (WNI). It is done under the pretext of implementing the provisions of the law, which are substantially inconsistent with the Automatic Exchange of Financial Information (AEOI).

Justices’ Advice

Responding to the petition, Constitutional Justice Maria Farida Indrati questioned the contents of the petitum that contradict each other. In the second point of the petitum, the Petitioner requests that all laws [being reviewed] be declared contradictory to the 1945 Constitution and having no binding legal force. However, Justice Maria continued, in the next point he asks for Article 1, Article 2, and Article 8 be declared contradictory to the 1945 Constitution and also having no binding legal force. To that end, she requested that the petitum be changed.

Meanwhile Constitutional Justice I Dewa Gede Palguna said there was a theoretical problem that must be clarified. He also requested that the legal standing of the Petitioner in viewing the context of international legal instruments be linked to the context of the 1945 Constitution.

 "Following the logic of your petition, as far as I understand it, you seem to want to state that Indonesia follows the monis principle, so that what has been agreed in one agreement, international treaty, whether it\'s a treaty or only an agreement directly binding. Even at a certain point, you set it up against the 1945Constitution. So, you should explain the theoretical position first before you claim constitutional harm," he said. (ARS/LA/Yuniar Widiastuti)