The Petitioner’s legal counsels at the preliminary hearing of the judicial review of the State Ministry Law, Tuesday (12/12/2023). Photo by MKRI/Ifa.

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JAKARTA (MKRI) — Tax consultant Sangap Tua Ritonga has filed a judicial review petition against Law No. 39 of 2008 on State Ministries. The petition No. 155/PUU-XXI/2023 challenges Articles 5 and 15 of State Ministry Law.

Article 5 paragraph (2) of the State Ministry Law reads, “Government affairs as referred to in Article 4 paragraph (2) letter (b) include matters relating to religion, law, finance, security, human rights, education, culture, health, social affairs, employment, industry, trade, mining, energy, public works, transmigration, transportation, information, communication, agriculture, plantation, forestry, animal husbandry, marine, and fisheries.” Meanwhile, Article 15 reads, “The total number of Ministries as referred to in Article 12, Article 13, and Article 14 shall be a maximum of 34 (thirty-four).”

At the hearing on Tuesday, December 12, 2023, the Petitioner through Pither Ponda Barany said that the Directorate-General of Taxation (DGT) has disseminated the Ministry of Finance’s slogan “SATU” since 2022. This has created legal uncertainty as a result of the overlap of financial and tax nomenclatures.

“In fact, constitutionally, since the third amendment to the 1945 Constitution, the financial and tax nomenclatures have been clearly separated, which were previously only regulated in Article 23, but in the third amendment it was separated into Article 23 for financial nomenclature and Article 23A of the 1945 Constitution for tax nomenclature,” Barany said before the panel chaired by Constitutional Justice Enny Nurbaningsih.

The Petitioner also believes that the above-mentioned nomenclature overlap will result in the overlap of all aspects, including organization, human resources, information technology (IT) systems, and many other operational factors. He argues that it has impacted his interaction in providing client services.

“Obviously, the overlap of treasury and state revenue functions in one command in the financial nomenclature in practice could potentially cause public policy problems, especially for tax policymakers, which in the end will place burden on the Petitioner’s clients and of course the Petitioner himself who works as a tax consultant,” Barany said.

He explained that the integrated functions of treasury, tax policymakers, and tax administration will undoubtedly be realized in the state budget each year. In reality, however, this will result in an increased tax target that is not based on potential increase based on prospective undeclared tax gap. Because of the state budget’s ever-increasing needs, taxpayers will be forced to increase their tax contributions indefinitely. Whereas the Petitioner, as an authorized consultant, frequently instructs customers to pay taxes on a self-assessment basis honestly and openly according to their real tax potential gap.

The Petitioner also contends that the DGT should be separated from the Ministry of Finance so that, in general, the institutional governance of the DGT as an autonomous institution can reduce the Ministry of Finance’s excessive authority because there is a separation of state revenue and state treasury authority. Furthermore, this separation can promote accountability and monitoring, and prevent potential conflicts of interest. As a result, in the petition, he asked the Constitutional Court to rule that Article 5 paragraph (2) of the State Ministry Law unconstitutional since it does not include the word “tax” as a separate nomenclature from the nomenclature of “finance.” Then, based on Article 17 paragraph (3) of the 1945 Constitution, which does not explicitly limit the number of ministries, the Petitioner asked the Court to declare Article 15 of the a quo Law unconstitutional.

Justices’ Advice

In response, Constitutional Justice Arief Hidayat suggested the Petitioner to revise the petition by elaborating his constitutional loss due to the enforcement of Articles 5 and 15 of the State Ministry Law. He also said that it is essential to explain whether the Petitioner has a legal standing.

“To be able to explain, is Mr. Sangap Tua Ritonga is an individual? So what are the legal subjects who can request judicial review? Which legal subject does Mr. Sangap Tua Ritonga belong to? Individual, legal entity, or indigenous people? Then, with regard to loss, not economic loss but the loss of the citizens’ constitutional rights because of the enforcement of Article 5 and Article 15 of Law No. 39 of 2008. Please explain it,” said Justice Arief

Meanwhile, Constitutional Justice Enny Nurbaningsih asked the Petitioner to check whether a similar case has been decided by the Court. “It should be checked so that this petition is not declared ne bis in idem. So, please pay attention,” she stressed.

Before concluding the hearing, Justice Enny emphasized that the petition was to be submitted to the Court’s Registrar’s Office no later than Wednesday, December 27, 2023 at 09:00 WIB. The next hearing would be to hear the revised petition.

Author       : Utami Argawati
Editor        : Lulu Anjarsari P.
PR            : Raisa Ayuditha
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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