Legal counsel Cuaca representing the Petitioner at the preliminary hearing of the judicial review of the Law on the Harmonization of Taxation Regulations, Monday (8/28/2023). Photo by Humas MK/Fauzan.

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JAKARTA (MKRI) — A citizen by the name of Surianingsih has filed a material judicial review petition of Article 2 point 13 and Article 43A paragraphs (1) and (4) of Law No. 7 of 2021 on the Harmonization of Taxation Regulations (HPP Law) to the Constitutional Court (MK). The preliminary hearing for case No. 83/PUU-XXI/2023 took place on Monday, August 28, 2023 in the plenary courtroom, presided over by Constitutional Justices Wahiduddin Adams, Enny Nurbaningsih, and M. Guntur Hamzah.

Article 43A paragraph (1) of the HPP Law reads, “Based on information, data, reports, and complaints, the Director General of Taxation shall be authorized to conduct an examination of the preliminary evidence prior to a criminal investigation in the field of taxation.”

Article 43A paragraph (4) of the HPP Law reads, “Procedures for examination of preliminary evidence of criminal offense in the field of taxation as referred to in paragraph (1) and paragraph (2) shall be regulated by or based on the Regulation of the Minister of Finance.”

At the hearing, legal counsel Cuaca said those articles were in violation of Article 1 paragraph (3) and Article 28D paragraph (1) of the 1945 Constitution. He revealed a concrete case where in an examination of preliminary evidence of a tax crime, the Petitioner’s house was sealed off and searched by civil service investigators (PPNS), which could not be challenged through pretrial in both the district court and the state administrative court (PTUN). This is because the letters issued for preliminary evidence examination are related to criminal law enforcement, which are not within the state administrative court’s jurisdiction.

The Petitioner believes this to be a reflection of legal imbalance and lack of protection of human rights for taxpayers who is examined for preliminary evidence of tax crimes. In addition, there are different court rulings on pretrial motions relating to the examination of preliminary evidence of tax crimes.

“The HPP Law actually does not regulate nor provide further explanation on the examination of preliminary evidence, so one must observe the Regulation of the Ministry of Finance No. 177/PMK.03/2022 on the procedure for examining preliminary evidence of criminal offences in taxation. Almost all of the authority in the examination of preliminary evidence is coercive towards other parties. This coercive authority is in the context of investigation, not inquiry. Therefore, in terms of what authority can be exercised during the examination of preliminary evidence, it shows that the examination of preliminary evidence is part of investigation. It is an integral part of the investigation, [they are] not two separate things,” said Cuaca at the hearing on site.

In the petitum, the Petitioner requests that the Court declare the phrase “examination of the preliminary evidence prior to a criminal investigation” in Article 2 point 13 and Article 43A paragraph (1) of the HPP Law unconstitutional and not legally binding if not interpreted as “examination of the preliminary evidence that is part of a criminal investigation.”

She also requests that the Court declare the clause “Procedures for examination of preliminary evidence of criminal offense in the field of taxation as referred to in paragraph (1) and paragraph (2) shall be regulated by or based on the Regulation of the Minister of Finance” in Article 2 point 13 and Article 43A paragraph (1) of the HPP Law unconstitutional and not legally binding if not interpreted as “only relating to technical-administrative matters and not limitation and/or expansion of the rights and obligations of citizens.”

Justices’ Advice

In response, Constitutional Justice Enny Nurbaningsih gave notes on the Petitioner’s profile, the provisions on the Court’s authority over the case, the Petitioner’s legal standing and presumed constitutional impairment due to legal certainty caused by the enforcement of the a quo norms.

“The presumed potential uncertainty that the Petitioner underwent due to this pretrial decision must be explained and affirmed so that the Petitioner has legal standing,” she explained.

Next, Constitutional Justice M. Guntur Hamzah advised the Petitioner to study the a quo articles carefully. He asked whether they refer to the examination of preliminary evidence relating to employees of the Directorate General of Taxation, not to taxpayers in general. If it refers to general taxpayers, the issue of preliminary evidence is related to the Petitioner, a general taxpayer.

“If we read Article 43A paragraphs (1) and (4) in full, ‘employees of the directorate’ is mentioned numerous times. So, who is the addressee of the norms? This distinction can impact the legal standing in this case,” he said.

Before panel chair Constitutional Justice Wahiduddin Adams adjourned the session, he announced that the Petitioner had 14 workdays to revise the petition and submit it no later than Monday, September 11 at 09:00 WIB to the Registrar’s Office, who will then set a schedule for the next hearing. 

Author       : Sri Pujianti
Editor        : Nur R.
PR            : Andhini S.F.
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.

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