---

Maqdir Ismail as legal counsel conveying the petition during preliminary hearing of the judicial review of the Law on Limited Liability Company, Monday (23/7) in the Courtroom of the Constitutional Court. Photo by Humas MK/Ifa.

The Constitutional Court held the preliminary hearing of the judicial review of Law No. 40/2007 on Limited Liability Company (PT Law) in the Plenary Courtroom of the Constitutional Court, Monday (23/7). PT Baraventura Pratama and two individual citizens argued that they had been constitutionally harmed due to the enactment of the Elucidation to Article 146 paragraph (1) letter c point a of the PT Law.

In the session chaired by Constitutional Justice Manahan M.P. Sitompul and accompanied by Constitutional Justices Arief Hidayat and Suhartoyo, Maqdir Ismail as legal counsel conveyed that the a quo article had caused legal uncertainty for limited companies that have not done business for three years or more because it does not provide certainty on which party that has the right to prove the deactivation by submitting a notification letter to the tax authority. Either that or whether this right, Maqdir added, is only given to one party or also given to all parties as mentioned in the a quo article, namely shareholders, directors, and board of commissioners.

Elucidation to Article 146 paragraph (1) letter c point a of the PT Law reads, "On the grounds that the company is not in a condition to continue its operations include among others: a. The company has not undertaken business activities (non-active) for 3 (three) years or more, as evidenced by a notification letter submitted to the tax authority."

Furthermore, Maqdir emphasized that the a quo article also contradicts the substance and norm contained in the editorial article because it has the potential to only provide benefits or rights to one party to dissolve a PT.

"Our clients and his friends have disputed regarding the position to dissolve a company. However, the Panel of Justices who heard the case up to cassation level considered the petition to file for the dissolution of a limited liability company that is not working in accordance with the provision of this law premature," explained Maqdir about the case No. 63/PUU-XVI/2018.

Therefore, in the petitum, the Petitioners requested that the Panel of Justices declare the a quo norm conditionally unconstitutional as long as it is not interpreted that the notification letter of a limited liability company that has not undertaken business activities or is inactive for 3 years or more that is submitted to the tax authority can be submitted by the board of directors, shareholders, or board of commissioners of the company.

Legal Standing

Responding to the petition, Constitutional Justice Manahan observed Petitioners I and III who concurrently serve as directors of the company and individual citizens but have different positions. " Petitioner I as director and Petitioner III have the same name but different positions, Petitioner II as an individual. Petitioner I as director, is he automatically entitled to represent the company in and out of court? Further confirmation is needed because it is related to the company\'s articles of association. So try to explain it," said Justice Manahan.

Meanwhile, Constitutional Justice Suhartoyo requested that the Petitioners simplify the substance of the petition and provide an explanation of the relationship between the company that filed the petition as Petitioner I and other companies mentioned in the petition. "[You mentioned] PT AKES and PT Baraventura. Is there a connection between the concrete cases that are experienced thus hampering the Petitioners’ constitutional implementation whose case has been rolled out to the Supreme Court, which is then based on Decision 1618 K/PDT 2016. [What] is the correlation? What is the potential loss?" Justice Suhartoyo asked.

Meanwhile, Constitutional Justice Arief Hidayat requested that the Petitioners clarify the posita so that the Constitutional Justices are convinced that the matter being petitioned is not a matter of implementation but of lack of clarity and legal uncertainty of the elucidation to the a quo norm. "It needs to be explored more, elaborated so as to convince us," he explained.

Before ending the session, Justice Manahan reminded the Petitioners to submit the revised petition no later than Monday, August 6, 2018 at 10:00 a.m. to the Registrar of the Constitutional Court. (Sri Pujianti/LA/Yuniar Widiastuti)

---