Chief Justice Anwar Usman reading the verdict of case No. 51/PUU-XIX/2021 on the judicial review hearing of Law No. 14 of 2002 on the Tax Court, Wednesday (11/24/2021). Photo by Humas MK/Ilham W.M.

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Wednesday, November 24, 2021 | 20:57 WIB

JAKARTA, Public Relations—The Constitutional Court (MK) rejected the entire judicial review petition of Law No. 14 of 2002 on the Tax Court by PT Sainath Realindo. The Petitioner questioned Article 42 paragraph (3) of the Tax Court Law. The ruling hearing for case No. 51/PUU-XIX/2021 took place on Wednesday, November 24, 2021 virtually.

Reading out the Court’s legal considerations, Constitutional Justice Suhartoyo explained that the Petitioner argued that the conflict of norms had led to arbitrariness among tax court judges and had not reflected legal certainty as stipulated in Article 28D paragraph (1) of the 1945 Constitution.

The Court holds that Article 42 paragraph (3) of the Tax Court Law is a result of the withdrawal of a tax dispute petition. As a result, the plaintiff cannot file the same petition to the Tax Court. If the plaintiff wishes to re-file it, Justice Suhartoyo added, they must revise its litigants, posita, and petitum, thus, leading to a new petition. This new petition will then under the judge’s jurisdiction to examine.

If the judge rules that the petition does not differ from the previous one, it will be ruled as cannot be re-filed, and the ne bis in idem principle will apply. Therefore, such a legal fact is relevant to apply to Article 42 paragraph (3) of the Tax Court Law. However, the Court emphasizes that the implementation of the provision must be done with caution and must protect the legal interests of the petitioner and the respondent, so as to keep tax court judges from acting arbitrarily. Moreover, the Court believes that protection and guarantee of citizens’ rights are fundamental. As such, the petitioner as well as the respondent, who is part of the Government, must both be treated equally before the law.

“With the aforementioned legal considerations, the Petitioner’s argument that the provision of Article 42 paragraph (3) of Law No. 14 of 2002 does not elaborate on the criteria for the similarity and difference between a petition that has been filed and one that cannot be refiled, especially the implementation of the ne bis in idem principle, is legally unwarranted,” Constitutional Justice Suhartoyo said at the ruling hearing in which the litigants attended virtually from their respective residences.

Also read:

Ne Bis In Idem Principle in Tax Court Law Questioned

Director of PT Sainath Realindo Revises Petition on Tax Court Law 

At the preliminary hearing, Eddy Christian, the Petitioner’s legal counsel, said Article 42 paragraph (3) of the Tax Court Law does not provide legal certainty as it does not provide clear criteria for a petition that has been filed and cannot be refiled.

Article 42 paragraph (3) of the Tax Court Law reads, “A petition that has been withdrawn through a decree or decision as referred to in paragraph (2) cannot be refiled.”

The Petitioner believed their right to clear benefits from the law enforcement, equality, legal certainty, and justice had been impaired because their petition to the Supreme Court was rejected for not meeting formal requirements. They questioned 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 believed 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.

Writer        : Sri Pujianti
Editor        : Nur R.
PR            : Fitri Yuliana
Translator  : Yuniar Widiastuti (NL)

Translation uploaded on 11/25/2021 09:37 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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