The judicial review hearing of Law No. 14 of 2002 on the Tax Court, Thursday (10/7/2021). Photo by Humas MK.

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Thursday, October 7, 2021 | 20:30 WIB

JAKARTA, Public Relations—The judicial review hearing of Law No. 14 of 2002 on the Tax Court was held by the Constitutional Court (MK) on Thursday, October 7, 2021. The panel preliminary hearing for case No. 51/PUU-XIX/2021 was presided over by Constitutional Justices Suhartoyo (chair), Enny Nurbaningsih, and Wahiduddin Adams.

The petition was filed by PT Sainath Realindo, represented by executive director Vikash Kumar Dugar. He questioned Article 42 paragraph (3) of the Tax Court Law, which reads, “A petition that has been withdrawn through a decree or decision as referred to in paragraph (2) cannot be refiled.”

Legal counsel Eddy Christian, who appeared before the Court virtually, explained that the Petitioner has a legal standing as a private legal entity in the form of a limited liability company (PT). He maintains and leases offices in the Sainath Tower.

“Due to the enactment of Article 42 paragraph (3) of Law No. 14 of 2002 on the Tax Court, the Petitioner did not find that law and justice be enforced by the holders of the judicial power, in this case the Tax Court, as mandated by Article 24 paragraphs (1) and (2) of the 1945 Constitution. In addition, the Petitioner did not find legal certainty and equality before the law as referred to in Article 28D paragraph (1) of the 1945 Constitution, neither did he obtain equal opportunity and benefits to attain equality and justice as referred to in Article 28H paragraph (2) of the 1945 Constitution,” he explained.

The Petitioner believes the enactment of the a quo norm did not give him legal certainty. He had suffered concrete losses due to the unclear criteria for a petition that has been filed and cannot be refiled. As such, he could not seek justice in the Tax Court.

His constitutional rights as referred to in Article 24 paragraphs (1) and (2), Article 28D paragraph (1), and Article 28H paragraph (2) of the 1945 Constitution to clear benefits from the law enforcement, equality, legal certainty, and justice have been impaired because his petition to the Supreme Court was rejected for not meeting formal requirements.

The Petitioner questions what distinguishes a petition and another petition that has been withdrawn so that it can be said that the latest petition be the same as the previous one, thus cannot be refiled since the previous one (which is considered a same one) has been withdrawn.

The Petitioner believes the ne bis in idem principle, which is laid out in in the Circular Letter of the Supreme Court (SE MA) No. 3 of 2020, must be reviewed so as not to repeat the same case in any court. Judicial independence should mean that a judge, who is a pillar for the enforcement of law and justice, can pass a ruling that does not impair the sense of justice.

Justices' Advice

Justice Suhartoyo advised that the Petitioner strengthen his legal standing and the Court’s authority. He also explained that the Petitioner cannot equate the procedural law of the Supreme Court to that of the Tax Court and the Constitutional Court.

Next, Justice Enny Nurbaningsih advised the Petitioner and his counsel to read the Constitutional Court Regulation (PMK) No. 2 of 2021 on the Procedural Law on Judicial Review and study the standard format of a petition.

“It must be clear who the Petitioner is, his legal standing elaborated. Does the Petitioner challenge the Supreme Court Law or the Tax Court Law? It must be reviewed. Then, the explanation of the Court’s authority should include the latest [amendment]. After that, the posita explains the Petitioner’s constitutional loss and builds an argument that there is a constitutionality issue, no need to [explain] too much of the concrete incident. Last, the petitum,” she said.

Meanwhile, Constitutional Justice Wahiduddin Adams observed that the Petitioner explained his concrete issues more. Despite that, the Court’s ruling might not compensate for his loss.

“[I] advise that the Petitioner not focus too much on the concrete case. To preface the petition, it can be mentioned,” he said.

Writer        : Nano Tresna Arfana
Editor        : Nur R.
PR            : Fitri Yuliana
Translator  : Yuniar Widiastuti (NL)

Translation uploaded on 10/8/2021 14:31 WIB

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

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