Petitioner Nurhidayat and legal counsel Viktor Santoso Tandiasa at the preliminary hearing of the judicial review of Law No. 14 of 2022 on the Tax Corut, Monday (3/27/2022). Photo by MKRI/Ifa.
JAKARTA (MKRI) — The Constitutional Court held the preliminary hearing for the judicial review of Article 5 paragraph (2) of Law No. 14 of 2022 on the Tax Court on Monday, March 27, 2023. The petition No. 26/PUU-XXI/2023 was filed by Nurhidayat, an advocate specializing in taxation.
At the hearing, the Petitioner’s legal counsel Viktor Santoso Tandiasa said that the requirements for legal counsels in the tax court are regulated in Article 34 of the Tax Court. These requirements are a special appointment letter, Indonesian citizenship, expansive knowledge and expertise in taxation law. However, Article 34 paragraph (2) letter c of the Tax Court stipulates that there are other requirements set by the Minister of Finance.
This is certainly the impact of the Minister of Finance’s authority to foster the organization and administration of the Tax Court as stipulated in Article 5 paragraph (2) of the Tax Court Law. Consequently, the Minister of Finance’s authority to regulate the advocate profession can hinder the Petitioner, who have met the requirements to become a legal representative in the tax court. The Petitioner feels disadvantaged in carrying out his duties and profession to fight for the interests of clients because the tax court is still within the control of the executive.
“As we know, most tax judges are former employees of the Directorate-General of Taxes. Now this is what then causes losses,” Tandiasa explained before Constitutional Justice Suhartoyo (panel chair), Deputy Chief Justice Saldi Isra, and Constitutional Justice Wahiduddin Adams.
Due to the enactment of Article 5 paragraph (2) letter a of the Tax Court Law, the Petitioner does not have fair legal certainty because it does not guarantee that the fight for justice would not be free from the intervention of the executive. If the petition is granted, the constitutional impairment argued by the Petitioner will no longer or will not occur in the future. Tandiasa also explained that Article 5 paragraph (2) of the Tax Court Law has been petitioned for review to the Constitutional Court and was decided through Decisions No. 10/PUU-XVIII/2020 and No. 57/PUU-XVIII/2020.
Tax Court Organizational Training
In addition, Tandiasa explained that Article 5 paragraph (2) of the Tax Court Law states that organizational, administrative, and financial guidance for tax courts is provided by the Ministry of Finance. If the phrase “Ministry of Finance” is not interpreted as “the Supreme Court (MA),” it is conditionally unconstitutional and contradictory to Article 1 paragraph (3), Article 24 paragraphs (1) and (2), and Article 28D paragraph (1) of the 1945 Constitution, considering the history of the development of Indonesian tax dispute resolution institution.
Tandiasa said that while the Minister of Finance represented the Government on the bill on Tax Court Body at the plenary session of the House of Representatives (DPR) on February 5, 2001, she explained the background and main ideas driving the submission of the bill. The Government had a political will to hand over organizational, administrative, and financial development affairs to the Supreme Court. However, the Government considered that the Tax Court Body would be a specialized body, especially with regard to disputes, procedural law, judges, tax subjects, the nature of the trial, and the material of the decisions, thus, judges and registrars who have expertise in the juridical and technical fields of taxation are required.
Therefore, the Government gave a maximum of 5 years, and then it can be transferred to the Supreme Court if everything requirements, including human resources, can be fulfilled. However, in fact, until today, the authority for organizational, administrative, and financial development affairs has not been transferred to the Supreme Court. The positioning of the Tax Court as a special court is not mentioned in the Tax Court Law, but only in Law No. 9 of 2004 on the Amendment to Law No. 5 of 1986 on State Administrative Courts in Article 9A.
Tandiasa asserted that the institutional freedom/independence of the judiciary is automatically reflected in the freedom of judges as actors of judicial power. Because judges are officials who exercise judicial power, they must maintain independence both as individuals and as judges. Even the chief judge of the court cannot intervene with judges who handle the cases.
“It is clear and obvious that all judicial bodies under the authority of the Supreme Court are one unit whose independence in exercising judicial power to administer justice in order to uphold law and justice must be guaranteed. This is in accordance with the mandate of Article 24 paragraph (1) of the 1945 Constitution,” he said.
The Petitioner argued that if the Constitutional Court had concerns that the granting of the petition would systematically impact the normative provisions of the articles in the Tax Court Law because of the Ministry of Finance’s authority over the Tax Court as stipulated in Article 9 paragraph (5), Article 22, Article 27, Article 28 paragraph (2), Article 29 paragraph (4), and Article 34 paragraph (2) of the Tax Court Law, it could declare Article 5 paragraph (2) of the Tax Court Law along the phrase “Ministry of Finance,” if not interpreted as “the Supreme Court,” contrary to Article 1 paragraph (3), Article 24 paragraphs (1) and (2), and Article 28D paragraph (1) of the 1945 Constitution and, mutatis mutandis, the phrase “a Ministerial Decree” and the word “Minister” in Article 9 paragraph (5), Article 22, Article 27, Article 28 paragraph (2), Article 29 paragraph (4), and Article 34 paragraph (2) unconstitutional if not interpreted as “a Supreme Court Regulation” and “the Supreme Court.”
Justices’ Advice
In response, Constitutional Justice Wahiduddin Adams asked the Petitioner to explain his constitutional impairment in detail.
“Where is [the elaboration on] the causality between the specific and actual constitutional impairment and the enactment of the Law? Explain it in detail,” he said.
Meanwhile, Deputy Chief Justice Saldi Isra advised the Petitioner to strengthen his legal standing. “For example, on page six where the Petitioner explains that he is specialized in taxation. I have not seen proof of that, Mr. Viktor. Except for the appointment letter by the governor. Do you remember the Court’s decision that ruled that non-specialized advocates can assist in taxation cases if they have the education? There is [no proof] of the specialization in taxation. So, [the legal standing] is weak. It must be clarified and affirmed. The period between the Petitioner’s inauguration as an advocate and the appointment letter from the Riau Islands Government is very short, not even one year, but [the Petitioner] is claiming to specialize in taxation. Please clarify this. Otherwise, it would weaken the legal standing in this case,” he explained.
Meanwhile, Constitutional Justice Suhartoyo said the petition’s format is good, but he had concerns for the legal standing. “Does Nurhidayat have a tax training certificate? Attach it if you do. The training would exclude you from the prohibition in the Constitutional Court decision. The exception means that not all advocates can litigate in the tax court, but the Constitutional Court gave the opportunity on the condition of the tax training,” he said.
Before adjourning the session, Constitutional Justice Suhartoyo announced that the Petitioner had 14 workdays to revise the petition. The petition should be submitted by Monday, April 10 at 13:00 WIB.
Author : Utami Argawati
Editor : Lulu Anjarsari P.
PR : M. Halim
Translator : Yuniar Widiastuti (NL)
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.
Monday, March 27, 2023 | 14:56 WIB 168