Chief Justice Anwar Usman at the ruling hearing for case No. 40/PUU-XIX/2021, Wednesday (10/27/2021). Photo by Humas MK/Panji.

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Wednesday, October 27, 2021 | 22:44 WIB

JAKARTA, Public Relations—The judicial review petition of Law No. 40 of 2007 on Limited Liability Company (PT) was declared inadmissible by the Constitutional Court (MK) due to the lack of legal standing, as the Decision No. 40/PUU-XIX/2021 was read out by Chief Justice Anwar Usman at the plenary ruling hearing on Wednesday, October 27, 2021.

In its opinion, the Court argued that the restriction for public officials, ASNs (state civil apparatuses), and state administrators against becoming independent commissioners did not necessarily allow the Petitioners to be independent commissioners based on their profession. Instead, the Petitioners or other advocates must meet the requirements. Therefore, as individual citizens and advocates, they did not suffer loss, either directly or indirectly, due to the enactment of the a quo norm. In addition, there was no causal relation between the presumed constitutional impairment and the enactment of the a quo norm.

Moreover, the Petitioners’ argument that being taxpayers would affirm their legal standing in relation to the independent commissioner position as a profession that is subjected to income tax was unacceptable. Although the Court believes that taxpayers could have legal standing in a case that concerns state finances, tax, or state budget, they must be able to elaborate on their constitutional impairment due to the enactment of the a quo norm.

“Therefore, the Court is of the opinion that the Petitioners did not have legal standing to file the a quo petition,” said Constitutional Justice Wahiduddin Adams reading out the Court’s opinion.

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The petition No. 40/PUU-XIX/2021 was filed by Ignatius Supriyadi, Sidik, and Janteri, advocates and taxpayers. They requested the material judicial review of the Elucidation to Article 120 paragraph (2) of the PT Law, which reads, “According to the code of good corporate governance, an Independent Commissioner is a commissioner from an external party.” They believed that as taxpayers, they had the constitutional right to question and/or file a material judicial review petition to the Court regarding any laws that affect their profession as advocates, which are essentially law enforcers.

The Petitioners argued that they suffered or at least would potentially suffer constitutional loss due to the enactment of the Elucidation to Article 120 paragraph (2) of Law No. 40 of 2007 in relation to the right to a job and decent living as well as fair legal certainty as referred to in Article 27 paragraph (2) and Article 28D paragraph (1) of the 1945 Constitution. The Elucidation to Article 120 paragraph (2) of the PT Law mentions the phrase ‘a commissioner from an external party’ in quotation marks. The Petitioners believed it meant that ‘a commissioner from an external party’ had a special meaning or could not be interpreted literally. However, there was no further explanation of the phrase.

They questioned whether it meant that the external commissioner was not affiliated with the major shareholders, members of the board of directors, and/or other members of the board of commissioners. If so, the Petitioners believed no further explanation as needed because Article 120 paragraph (2) of the PT Law contained such material.

They also asserted that they had the opportunity to become independent commissioners. Their expertise and professionalism in the field of law is a basic or even higher qualification because their law degree ensures the corporate legal compliance. However, this opportunity has diminished or even disappeared due to the multiple interpretations of the elucidation in question, where an independent commissioner can be interpreted as “may be a state civil apparatus (ASN), state administrator, or state official.”

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

Translation uploaded on 10/28/2021 21:41 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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