Normative Conflict Between the ACFTA Agreement and National Customs Regulations in the Application of Form E Certificates of Origin: A Study of Tax Court Decisions Regarding the Denial of Preferential Tariffs

Abstract

This article examined the legal standing of ACFTA within Indonesia’s customs law system, identified the forms of normative conflict between ACFTA and domestic regulations, and analyzed the legal reasoning applied by the Indonesian Tax Court in resolving such disputes. This study employed normative (doctrinal) legal research using statutory, conceptual, and case approaches, analyzing nine Tax Court decisions through the theoretical frameworks of Gustav Radbruch’s legal certainty theory, Kelsen–Nawiasky’s norm hierarchy theory, and the substance-over-form principle. The findings indicated that ACFTA formally held the status of a Presidential Regulation within Indonesia’s legal hierarchy but remained fully binding under the principle of pacta sunt servanda. Therefore, the right to preferential tariffs was substantive and could not be nullified solely due to procedural non-compliance that did not affect the material truth of the goods’ origin. The identified normative conflict was multi-layered, encompassing hierarchical-vertical, teleological, proportionality, and interpretive dimensions. Analysis of the nine decisions revealed a dominant substantive-hierarchical approach that aligned with all three theoretical frameworks; however, consistent dissenting opinions in six of the nine decisions indicated a systemic deficit in legal certainty. This research formulated a four-pillar model for resolving normative conflicts, which may serve as a reference for the Directorate General of Customs and Excise, the Ministry of Finance, and the Tax Court in strengthening legal certainty for customs and international trade stakeholders.