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Petitioner Triyono Martanto after the revision hearing of the judicial review of Law No. 14 of 2002 on the Tax Court, Tuesday (3/3) in the Courtroom of the Constitutional Court. Photo by Humas MK/Ifa.

JAKARTA, Public Relations of the Constitutional Court—Three tax court judges delivered the revised petition on the provision on the appointment of the chairperson and vice chairperson of the tax court on Tuesday afternoon (3/3/2020). Haposan Lumban Gaol, Triyono Martanto, and Redno Sri Rezeki are Petitioners of case No. 10/PUU-XVIII/2020.

Triyono Martanto explained the revision made following the justices’ advice in the preliminary hearing. The Petitioners revised their legal standing. Triyono revealed that the Petitioners felt specifically, factually, or at least potentially disadvantaged in relation to the authority to propose tax court leaders by the Minister of Finance and the authority of tax court leaders in training tax court judges. He asserted that it greatly affects the Petitioners’ independence and freedom in examining and deciding on tax disputes.

"The absence of provisions governing the tenure of the chairperson and vice chairperson of the tax court will result in a delay in the regeneration of the organization’s leadership, which will ultimately disadvantage the Petitioners in obtaining legal certainty and fair and proper treatment as constitutionally protected by Article 28D paragraph (1) and paragraph (2) of the 1945 Constitution," Triyono said before Constitutional Justice Suhartoyo as panel chairman. 

The Petitioners had also added the scope of the articles being reviewed: Article 5 paragraph (2) and Article 8 paragraph (2) of the Tax Court Law against the constitutional basis Article 24 paragraph (1) and 28D paragraphs (1) and (2) of the 1945 Constitution. The reason for the petition had been summarized in accordance with the advice of the constitutional justices. The Petitioners had also added that the tax court is under the Supreme Court (MA) and receives technical guidance and general supervision from the Supreme Court. Its financial administration guidance is carried out by the Ministry of Finance. However, he added, as an organization supervisor, the Minister of Finance had not yet formed an organizational structure and working procedures for the tax court, so the tax court does not have a nomenclature yet, does not have its own budget, and is not yet registered with the National Civil Service Agency (BKN). 

Also read: Leadership Appointment Mechanism Inconsistent, Three Judges Challenge Tax Court Law

The Petitioners made another revision, that the Minister of Finance’s authority to propose chairman and vice chairman is not transparent and without a clear parameter, thus obscuring the independence of the judiciary, which should not receive influence that could directly or indirectly lead to the legal uncertainty of the independence of the tax court judges. The Petitioners believe it could potentially reduce Article 5 paragraph (3) of the Tax Court Law and Article 24 paragraph (1) of the 1945 Constitution.

"The uncertainty of requirements or inconsistency of the mechanism of the nomination of chairman and vice chairman of the tax [court] in the a quo articles has the potential for nepotism and [favoritism] in the nomination process, which ultimately results in legal uncertainty and justice for the Petitioners," he added. 

The Petitioners in their petition also argued that since the establishment of the tax court in 2002, the mechanism for nominating candidates for chairperson and vice chairperson is carried out differently. The inconsistency is due to the absence of nomination mechanism for the chairperson and vice chairperson, who are stationed only in the capital.

According to the Constitutional Court Decision No. 6/PUUXIV/2016, Article 8 paragraph (3) of the Tax Court Law that reads, “The Chairperson and Vice Chairperson shall be appointed for a 5 (five) year tenure and can be re-appointed for 1 (one) more term,” is declared unconstitutional and not legally binding. The a quo articleregulates three positions: chairperson, vice chairperson, and judges. However, the Petitioners of the a quo case filed a petition on the position of the judges.

As a consequence, according to the Petitioners, the chairperson and vice chairperson of the tax court will hold the office until retirement because they cannot be dismissed unless they commit a crime, violate code of ethics, resign, are physically or mentally ill, are unable to carry out their duties, and pass away. The absence of restrictions on the tenure potentially leads to authoritarianism, abuse of power, stagnation in the regeneration of organizational leadership, and the emergence of individual cults.

The Petitioners also believe the Minister of Finance’s authority to nominate chairperson and vice chairperson reduces the independence of the tax court judges. In this case, the a quo articleis a political product of law that has the potential to limit the implementation of an independent judiciary. The reason is that the Minister of Finance may become a defendant or a defendant\\\'s superior in a dispute in the tax court. Therefore, in their petitum, the Petitioners request that the Constitutional Court declare the a quo provision contrary to the 1945 Constitution and not legally binding. (Utami/AL/LA)

Translated by: Yuniar Widiastuti

Translation uploaded on 3/4/2020

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