Head of the Legal Aid Bureau of the Ministry of Finance (MoF) Tio Serepina Siahaan giving a statement on behalf of the Government in the judicial review hearing of the Tax Court Law, Tuesday (7/7) in the Plenary Courtroom of the Constitutional Court. Photo by Humas MK/Gani.
JAKARTA, Public Relations of the Constitutional Court—The government confirmed that the provision on the nomination of the head of the tax court is in accordance with the 1945 Constitution, said Head of the Legal Aid Bureau of the Ministry of Finance (MoF) Tio Serepina Siahaan in the judicial review hearing of Law No. 14 of 2002 on Tax Court. The hearing of case No. 10/PUU-XVIII/2020 took place on Tuesday (7/7/2020) in the Plenary Courtroom of the Constitutional Court.
Siahaan said that specifically the arrangement for general and financial administration is in line with the 1945 Constitution. The tax regulation, in this case, is on tax disputes because taxes are intended for the prosperity and interests of the people. Thus, tax disputes cannot be equated with disputes in general. She also said that decisions on tax disputes are binding and final.
She also said that with this specificity, the Minister of Finance was given authority to nominate candidates of chair and vice chair of the tax court. However, elected candidates are approved by the Chief Justice of the Supreme Court (MA) and then stipulated by the President.
In addition, the independence of tax judges in deciding cases is guaranteed by Article 5 paragraph (3) of the Tax Court Law, so it doesn’t matter who nominates them. "The independence of judges in deciding tax disputes is guaranteed in Article 5 paragraph (3) of the Tax Court Law," Tio said. She added that the selection of chair and vice chair of the tax court by the MoF is constitutional.
The Government is of the opinion that the Petitioners don’t have legal standing because they question the enactment of norms, not the constitutionality of those norms. Thus, the Government requested that the Court reject the petition."The government is of the opinion that the petition filed by the Petitioners doesn’t meet the requirements for material review in the Constitutional Court," Tio said.
Tax court judges Triyono Martanto, Haposan Lumban Gaol, and Redno Sri Rezeki had previously argued 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. In the preliminary hearing on Wednesday (5/2/2020), Petitioner Lumban Gaol revealed his grievance due to the enactment of Article 8 paragraph (2) of the Tax Court Law regarding the appointment of chair and vice chair of the tax court nominated by the Minister of Finance relates to the appointment and dismissal of those judges, especially in terms of independence and authority of judges to examine, hear, and decide on tax disputes. Furthermore, he 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.
The Petitioners also said that since the establishment of the tax court in 2002, there had been several mechanisms for nominating candidates for chairperson and vice chairperson. First, by selecting judges to be subsequently proposed to the Minister of Finance. Second, based on a recommendation by the chairperson of the previous period before their retirement. The inconsistency of the nomination mechanism occurs because there is no nomination mechanism for the selection of chairperson and vice chairperson of the tax court, which is only located in the capital.
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, and stagnation in the regeneration of organizational leadership. 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 7/8/2020
Tuesday, July 07, 2020 | 16:00 WIB 279