The Petitioner’s counsel Eddy Christian explaining the points of the petition virtually at the judicial review hearing of Law No. 3 of 2009 on the Supreme Court, Monday (9/6/2021) in the plenary courtroom. Photo by Humas MK/Panji.

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Monday, September 6, 2021 | 15:57 WIB

JAKARTA, Public Relations—The preliminary judicial review hearing of Law No. 3 of 2009 on the Second Amendment to Law No. 14 of 1985 on the Supreme Court was held by the Constitutional Court (MK) on Monday, September 6, 2021. The petition No. 43/PUU-XIX/2021 was filed by Vikash Kumar Dugar, Executive Director of PT Realindo (Principal Petitioner).

The Petitioner’s counsel Eddy Christian explained that the Petitioner requested the material judicial review of Article 31A paragraph (4) of the Supreme Court Law, which reads, “The judicial review petition as referred to in paragraph (1) shall be conducted by the Supreme Court no later than 14 (fourteen) workdays since the date of the petition is received.”

The Petitioner is a private legal entity in the form of a limited liability company (PT) that manages and lease offices at the Sainath Tower. He felt harmed by the enactment of Article 31A paragraph (4) of Law No. 3 of 2009, which led to him being denied constitutional rights as referred to in Article 24 paragraphs (1) and (2), Article 28D paragraph (1), and Article 28D paragraph (2) of the 1945 Constitution.

In mid-2007, the Petitioner the construction of the Sainath Tower office building, which was stopped at the end of 2011, then continued in April 2014. In mid-2016 when the building was completed, he received two tax collection notices (STP) and four nil tax assessment notices (SKPN) by the Director General of Taxes (DGT) regarding the determination of taxable entrepreneur who fails to produce based on Article 14 paragraph (1) letter g of Law No. 28 of 2009 (KUP Law), Article 9 paragraphs (6a) and (6b) of Law No. 42 of 2009 (VAT Law), and the Regulation of the Minister of Finance (PMK) No. 31/PMK.03/2014 (which amended the PMK No. 81/PMK.03/2010).

The Petitioner, Eddy said, had taken various legal measures up to the judicial review (PK) to the Supreme Court. At the end of 2020 while waiting for the PK decision, he filed a judicial review petition to the Supreme Court on Article 7 paragraphs (4) and (6) of PMK No. 31/PMK.03/2014 on the Time of Calculation and Repayment Procedures for Input Tax That Has Been Credited and Refunded for Taxable Entrepreneur Who Fails to Produce for being contrary to Law No. 12 of 2011 on Lawmaking.

Then, Eddy added, the Petitioner filed a material judicial review petition dated December 10, 2020, which was received by the Head of Subdirectorate for Material Judicial Review and Tax Dispute, State Administrative Deputy Registrar on December 14, 2020, along with the Deed of Petition for Material Judicial Review. The petition was registered on January 6, 2021. In mid-April 2021, the Petitioner received information regarding the ruling on the petition from the Supreme Court Registrar’s website—stating it was inadmissible. “As of today, we have not received a copy of the decision,” Eddy explained to the justice panel.

The Petitioner interpreted the 14-workday deadline in Article 31A paragraph (4) of the Supreme Court Law to mean until a decision is passed. However, his case was settled in twice that period. The niet ontvankelijke verklaard ruling (case inadmissible due to formal defects) that the Supreme Court passed can be interpreted that the Court had not failed to meet the deadline. The Petitioner interpreted this as Article 31A paragraph (4) of the Supreme Court Law not being legally binding for the Supreme Court and not applying in general.

The Petitioner argued that he had filed a petition to the Supreme Court due to constitutional loss caused by a regulation that had been repealed. However, when it was still in effect, it had been used by the legislature to determine tax laws, which led to the Petitioner’s constitutional loss and afforded him legal standing to judicial review in the Supreme Court.

Therefore, in the petitum, the Petitioner requested that the Constitutional Court declare Article 31A paragraph (4) of the Supreme Court Law along the phrase “no later than 14 (fourteen) workdays” not legally binding insofar as not interpreted as the time to settle a judicial review petition.

“[The Petitioner also request that the Court] declare the constitutional losses that the Petitioner argued could be mitigated, order the Supreme Court to conduct material judicial review of Article 7 paragraphs (4) and (6) of the Regulation of the Minister of Finance No. 31/PMK.03/2014,” Eddy said.

Justices’ Advice

In response, panel chair Constitutional Justice Manahan M. P. Sitompul advised the Petitioner to add the latest Constitutional Court Law amendments in the part on the Constitutional Court’s authority. He also advised that the Petitioner study past petitions lodged to the Court on its website. He also asked the Petitioner to elaborate on his constitutional losses to clarify his legal standing.

Meanwhile, Constitutional Justice Arief Hidayat asked the Petitioner to study Article 10 of the Constitutional Court Regulation No. 2 of 2021 on the petition format. He also advised that list of evidence be separated from the petition. “Please add page number to the petition and summarize it and make it more concise,” he added.

Constitutional Justice Suhartoyo advised the Petitioner to revise the petition regarding the mention of Eddy Christian as counsel. He also asked that the petition not use the Petitioner’s company’s letterhead in the petition. Similar to Justice Arief, he asked that the petition be more concise. “Because the issue being petitioned is actually simple,” he stressed.

The justice panel gave the Petitioner 14 workdays to revise his petition.

Writer        : Nano Tresna Arfana
Editor        : Lulu Anjarsari P.
PR            : Fitri Yuliana
Translator  : Yuniar Widiastuti (NL)

Translation uploaded on 9/7/2021 09:30 WIB

Disclaimer: The original version of the news is in Indonesian. In case of any differences between the English and the Indonesian versions, the Indonesian version will prevail.

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