The Petitioner’s experts taking oath before the panel of justices to deliver testimony at the material judicial review hearing of Law No. 7 of 2021 on the Harmonization of Taxation Regulations, Tuesday (10/17/2023). Photo by MKRI/Ifa.

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JAKARTA (MKRI) — Ministerial regulations are delegated by the president and, as long as it is stipulated by laws and regulations, its binding force and validity are determined by higher norms. Thus, the Regulation of the Ministry of Finance No. 177/PMK.03/2022 on the procedure for examining preliminary evidence of criminal offences in taxation, which exceeds the regulatory limitation of Article 2 point 13 in Article 43A paragraph (4) of Law No. 7 of 2021 on the Harmonization of Taxation Regulations (HPP Law), becomes an unjustified ministerial regulation. This statement was made by Jimmy Zeravianus Usfunan as an expert presented by the Petitioners at a judicial review hearing of the HPP Law on Tuesday, October 17, 2023.

Responding to petition No. 83/PUU-XXI/2023, Jimmy said that Law No. 12 of 2011 on Lawmaking regulates the hierarchy of laws and regulations, including ministerial regulations, based on the idea of norm classification in the Indonesian legal system. He added that the Elucidation to Article 8 paragraph (1) of the Lawmaking Law, ministerial regulations are defined as regulations prescribed by the minister to implement specific government affairs. Thus, its content is related to the administrative technical implementation of affairs in line with the functions of the ministry.

“In other words, Article 2 point 13 in Article 43A paragraph (4) of the HPP Law still tends to allow for a vast interpretation of the formation of the Finance Minister’s regulation, which citizens (taxpayers) feel factually. Logically, the phrase ‘procedures for examination of preliminary evidence of criminal offense in the field of taxation” in the Article 2 point 13 in Article 43A paragraph (3) of the HPP Law should be interpreted only with regard to technical-administrative matters and not as a restriction and/or expansion of the citizens’ rights and obligations,” he said before Chief Justice Anwar Usman, Deputy Chief Justice Saldi Isra, and the seven other constitutional justices.

Against Rule of Law

Meanwhile, Mudzakkir, an expert from the Islamic University of Indonesia (UII), said that the regulations of the Ministry of Finance are only allowed to set technical regulations on the use of the authority of preliminary evidence examination to ensure legal certainty and avoid abuse of authority. Thus, he said, regulations of the Ministry of Finance do not regulate the authority of preliminary evidence examination (inquirers/investigators) because the granting of such authority must be regulated in legal norms in the Law. Moreover, in the regulation of the authority, there is also an element of limitation of freedom for the taxpayer being examined.

“Therefore, the Ministry of Finance regulations on the authority of preliminary evidence examination into tax crimes should be declared invalid and contrary to the principles of the Indonesian rule of law and the principle of fair legal certainty as referred to in the basic legal norms in Article 1 paragraph (3) and Article 28D paragraph (1) of the 1945 Constitution,” said Mudzakkir.

Also read: 

Taxpayer Questions Procedure to Examine Preliminary Evidence of Tax Crimes

Legal Entity Becomes Petitioner in Case on Preliminary Evidence of Tax Crimes

Eddy Hiariej: Preliminary Evidence Examination an Application of Sunrise Principle

At the preliminary hearing on Monday, August 28, 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 house of Petitioner I 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 Petitioners believe 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.

Author       : Sri Pujianti
Editor        : Lulu Anjarsari P.
PR            : Andhini S.F.
Translator  : Nyi Mas Laras Nur Inten Kemalasari/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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