Legal counsel Shinta Donna Tarigan at the ruling hearing of the judicial review of Law No. 7 of 2021 on the Harmonization of Taxation Regulations, Tuesday (2/13/2024). Photo by MKRI/Ifa.
JAKARTA (MKRI) — Article 43A in Article 2 point 13 of Law No. 7 of 2021 on the Harmonization of Taxation Regulations (HPP Law), which regulates the examination of preliminary evidence before an investigation, which is said to have the same purpose and position as an investigation as stipulated in the Criminal Procedure Code (KUHAP), should not regulate matters related to pro justitia actions. This is because it could potentially violate the essence of the investigation in examining preliminary evidence. Moreover, actions in the investigation process cannot be the object of a pretrial lawsuit, because they basically are not pro justitia. Therefore, a Minister of Finance Regulation cannot regulate provisions whose substance authorizes investigations that include coercion, the essence of which contains norms of criminal procedural law that should be contained in the law, not in the Minister of Finance Regulation.
Such was the Court’s legal considerations delivered by Constitutional Justice Enny Nurbaningsih on the material judicial review petition of the HPP Law. The ruling hearing for Decision No. 83/PUU-XXI/2023, petitioned by Surianingsih and PT Putra Indah Jaya, was held by the Constitutional Court (MK) on Tuesday, February 13, 2024 in the plenary courtroom.
“[The Court] adjudicated, grants the Petitioners’ petition in part,” said Chief Justice Suhartoyo delivering the verdict.
In the verdict, the Court stated that the phrase “examination of preliminary evidence prior to a criminal investigation” in Article 43A paragraph (1) in Article 2 point 13 of the HPP Law is unconstitutional and not legally binding as long as it is not interpreted as “there is no coercive actions,” so the full norm now reads “Based on information, data, reports, and complaints, the Director General of Taxation shall be authorized to conduct an examination of preliminary evidence prior to a criminal investigation in the field of taxation, if there is no coercive actions.” The Court also declared Article 43A paragraph (4) in Article 2 point 13 of the HPP Law unconstitutional and not legally binding as long as it is not interpreted as “does not violate the human rights of taxpayers,” so that the full norm reads “Procedures for examination of preliminary evidence of criminal offense in the field of taxation as referred to in paragraphs (1) and (2) shall be regulated by or based on the Regulation of the Minister of Finance as long as it does not regulate matters relating to coercion nor does it violate the human rights of taxpayers.”
Justice Enny further stated that the Petitioners’ argument on Finance Minister regulations being an implementing regulation that only regulate technical administrative matters but also criminal provisions in taxation. The Court is of the opinion that ministerial regulations are legislation formed because of orders by the law. Authority delegation to ministerial regulations is not meant to regulate material that laws are supposed to regulate, but only to regulate technical administrative matters in the examination of preliminary evidence as referred to in Article 43A paragraph (1) in Article 2 point 13 of the HPP Law.
Therefore, Justice Enny added, the phrase “Procedures for examination of preliminary evidence of criminal offense in the field of taxation” in Article 43A paragraph (4) in Article 2 point 13 of the HPP Law, which is regulated in the Finance Minister regulation that not only regulates technical administrative matters but also the limitation of the rights and obligations of citizens and taxpayers, is not in line with the essence and scope of the delegation by laws.
“Therefore, the Petitioners’ petitum to request the Court to limit the delegation of authority in the Finance Minister regulation as referred to in Article 43A paragraph (4) in Article 2 point 13 of the HPP Law was justified, but before the Court’s interpretation is not as they requested, the argument of the a quo Petitioners is legally grounded in part,” she added.
There Shouldn’t Be Coercion
Delivering the Court’s legal opinion, Justice Enny said that tax officers may not commit coercion in examining preliminary evidence prior to investigation into alleged taxation criminal offenses. In other words, the examination of preliminary evidence should not be coercive because it is part of the investigation process.
Therefore, in accordance with the nature of the investigation process where no coercion is allowed, in the event of any act of coercion in the examination of preliminary evidence before the investigation, the pretrial institution can conduct an examination into whether or not the action in question is valid. However, the request for the Court to confirm the object of pretrial cannot be done because the object of pretrial has been rigidly regulated in Article 77 of the Criminal Procedure Code as interpreted in Constitutional Court Decision No. 21/PUU-XII/2014.
“If the Court accommodate the Petitioners’ wish, the object of pretrial would be limited. As such, the Petitioners’ argument against the lack of legal certainty because the examination of preliminary evidence is not an object of pretrial is legally groundless,” Justice Enny stressed.
Finance Minister’s Regulations
The Petitioners questioned Finance Minister regulations that not only regulate technical administrative matters, but also the limitation of rights and/or expansion of rights and obligations of citizens. The Petitioners believed it was against legal certainty guaranteed by the 1945 Constitution.
The Court believes ministerial regulations are not within the hierarchy of legislation but ones that are recognized and have binding legal force as long as it has delegation by a higher types of legislation. As such, the Finance Minister Regulation No. 177/2022, which exceeds the regulatory limit of Article 43A paragraph (4) in Article 2 point 13 of the HPP Law cannot be justified.
Dissenting Opinions
Not all nine constitutional justices had the same opinions in Decision No. 83/PUU-XXI/2023. Constitutional Justices Daniel Yusmic P. Foekh, M. Guntur Hamzah, and Saldi Isra had dissenting opinions.
Justice Foekh said that tax laws are special in that they are lex specialis sistematis, so the delegation of the authority to regulate procedures for examination of preliminary evidence of tax criminal offenses to the Finance Minister is in line with the HPP Law. Although the a quo petition does not seem to directly relate to the tax court, upon close observation, there is correlation to the Court’s order to the legislatures so that the organizational, administrative, and financial guidance for the tax court be done by the Supreme Court in stages no later than December 31, 2026 (vide the Constitutional Court Decision No. 26/PUU-XXI/2023).
“In relation to that, since the Petitioners’ petition was filed during the transition period of authority shift for the guidance of the tax court in a one roof system under the Supreme Court, Article 43A paragraph (4) in Article 2 point 13 of the HPP Law is not against the principles of rule of law and fair legal certainty as the Petitioners argued. As such, the Petitioners’ petition should be rejected,” said Justice Foekh.
Meanwhile, Constitutional Justices Guntur and Saldi Isra stated that the Court should have been rejected the Petitioners’ petitum relating to Article 43A paragraph (1) of the HPP Law and granted that relating to Article 43A paragraph (4) in Article 2 point 13 of the HPP Law.
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
Ministerial Regulations Derived from Higher Legislation
Witness Admits Confusion over Legal Protection against Taxation Preliminary Evidence Examination
Provisions on Tax Crimes Has Special Characteristics
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.
Tuesday, February 13, 2024 | 19:04 WIB 72