Constitutional law expert A. S Natabaya and corporate law expert Siti Anisah presented by the Petitioners delivering their expertise in the judicial review hearing of the Limited Liability Company Law (PT Law), Wednesday (24/10) in the Plenary Courtroom of the Constitutional Court. Photo by Humas MK/Ganie.

The provision of Article 146 Paragraph (1) letter c point a of Law No. 40/2007 on Limited Liability Companies (PT Law) does mean limitation of rights for shareholders in terms of providing report of deactivation of companies that have not conducted business for three years or more for the tax authority. If the article is interpreted as only directors, shareholders, or board of directors, then it is contrary to the article\'s body, especially if the company closes, then there is no right of directors anymore. Such is the statement conveyed by the constitutional law expert A.S. Natabaya, who was presented by the Petitioners in a follow-up judicial review hearing of the PT Law in the Plenary Courtroom of the Constitutional Court, Wednesday (10/24).

Natabaya further explained that the dissolution of the company could occur based on several reasons, including the decision of the General Meeting of Shareholders (GMS), the operation period of a company in the statute/bylaw had ended, decision of the court, revocation of company bankruptcy, or revocation of the company\'s license. In the event of company dissolution, the liquidator must handle it and the company cannot conduct legal actions toward liquidation. "So, with regard to the a quo article in that the shareholders can dissolve the company, I agree with the district court that in essence argued that if the shareholders are more than one, the dissolution is submitted by one of the shareholders. This is the best solution and part of an alternative," said Natabaya who had served as a constitutional justice in 2003-2008. 

Shareholder Rights

On the same occasion, corporate law expert Siti Anisah, a lecturer from the Indonesian Islamic University of Yogyakarta, in her statement also explained that the shareholders have the right to file an application for company dissolution and submit a notice of the company dissolution to the tax authority as evidence. According to Siti, in a company, shareholders have the right to obtain legal certainty with the principle of separation of entity and of corporate assets.

The principle of separation of entity is fundamental in a legal entity. This is the basis for different entities, from company founders to shareholders. This implication is limited obligations and responsibilities by shareholders or founders in depositing their capital. Then, the principle of separation of company assets is needed to accommodate groups or become the main stimulus of company formation. "So the shareholders are given the right of litigation, namely the right to seek compensation so they can file a lawsuit if the company is in certain circumstances, including bankruptcy or dissolution," said Siti before the court chaired by Chief Justice Anwar Usman accompanied by the eight other constitutional justices.

The Petitioner had previously conveyed that Article 146 paragraph (1) letter c point a of the PT Law had caused legal uncertainty for limited companies that have not undertaken business for three years or more because it does not provide certainty on which party has the right to prove the deactivation by submitting a notification letter to the tax authority. Either that or whether this right 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. According to the Petitioners, 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. Therefore, 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. (Sri Pujianti/NRA/Yuniar Widiastuti)