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Principal Petitioners Haposan Lumban Gaol, Triyono Martanto, and Redno Sri Rezeki (left to right) in the preliminary judicial review hearing of Law No. 14 of 2002 on the Tax Court, Wednesday (12/2) in the Courtroom of the Constitutional Court. Photo by Humas MK/Ifa.

JAKARTA, Public Relations of the Constitutional Court—Judges Triyono Martanto, Haposan Lumban Gaol, and Redno Sri Rezeki petitioned Law No. 14 of 2002 on the Tax Court to the Constitutional Court (MK). The hearing of case No. 10/PUU-XVIII/2020, which took place on Wednesday (12/2/2020) in the Plenary Courtroom of the Constitutional Court, was presided over by Constitutional Justice Suhartoyo along with Constitutional Justices Manahan M. P. Sitompul and Enny Nurbaningsih.

In the petition, the Petitioners argue that Article 5 paragraph (2) and Article 8 paragraph (2) of the Tax Court Law contradict Article 24 paragraph (1) and Article 25 of the 1945 Constitution. Article 5 paragraph (2) of the Tax Court Law reads, "Organizational, administrative, and financial fostering of the Tax Court is conducted by the Ministry of Finance." Article 8 paragraph (2) of the Tax Court Law reads, "The Chairperson and Vice Chairperson shall be appointed by the President from Judges proposed by the Minister after obtaining the approval of the Chief Justice of the Supreme Court." 

In this first hearing, Petitioner Lumban Gaol stated that the a quo norms were detrimental because the appointment of the chairperson and vice chairperson proposed by the minister in Article 8 paragraph (2) of the Tax Court Law caused problems. This relates to the appointment and dismissal of judges, especially in terms of independence and authority of judges to examine, hear, and decide on tax disputes. Furthermore, Lumban Gaol considered that the a quo law did not clearly and firmly stipulate the mechanism for determining the candidates for the chairperson and vice chairperson of the tax court prior to the request of the approval of the Chief Supreme Justice and proposal to the president by the Minister of Finance. 

The Petitioners also said that since the establishment of the tax court in 2002, the mechanism for nominating candidates for chairperson and vice chairperson is carried out differently, through a selection mechanism from and by judges to be subsequently proposed to the minister of finance. In addition, it is also based on a proposal from the chairperson of the previous period before their retirement. "Thus, the inconsistency of the nomination mechanism for the chairperson of the tax court cannot be separated from the absence of nomination mechanism for the chairperson and vice chairperson," Lumban Gaol said. 

The Petitioners also mentioned that the Tax Court Law does not include the tenure of the chairperson and vice chairperson of the tax court. The Petitioners acknowledged that the function of the leader in a modern organization cannot be disputed because it is very important for the progress of the organization. As a public organization, the tax court is chaired by the chairperson and vice chairperson of the tax court with the duties and authorities stipulated in the a quo law. In the absence of this term limit, there is potential for authoritarianism, abuse of power, stagnation in the regeneration of organizational leadership, and the emergence of individual cults. Therefore, in the petitum the Petitioners requested that the Court declare the a quo norms contrary to the 1945 Constitution. 

General Norms 

Constitutional Justice Manahan M .P Sitompul advised that the Petitioners strengthen their legal standing and include general norms that describe the reasons for their constitutional damage and the conflict between the norms and the 1945 Constitution. In addition, he also requested that the reason for the petition related to conflicts of interest or other matters be explained better so that the actual situation between the problems of the judge and the defendant can be clearly seen. "This link needs to be elaborated so that the Court can see the contradictions or conflicts that occur over the enactment of the a quo norms," he explained. 

Justice Enny requested that the Petitioners ensure attendance in the next session because without attorney, if one of the principals is absent, it can have an impact on the assessment of the seriousness of the Petitioners in filing the petition. 

Unclear Position

Justice Enny also observed the need for the Petitioners to explain the relevance of the a quo articles and issues related to the constitutionality of the norms, which explains how they are detrimental to the Petitioners. "Here, it is necessary to explain the coherent problems and conflicts with the Constitution as well as the argument that the norms conflict with the Constitution. This must be explained," she said. 

Justice Suhartoyo questioned the position of the tax court in the state administration, which is not clear. According to him, this could be taken into consideration for the Petitioners to describe the potential and factual losses experienced while serving as leaders. Before ending the session, Justice Suhartoyo reminded the Petitioners to submit revision to the petition no later than Tuesday, February 25, 2020 at 13:30 WIB to the Registrar\'s Office. (Sri Pujianti/Annisa/LA)

Translated by: Yuniar Widiastuti

Translation uploaded on 2/13/2020

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