Pancasila, social justice, and the ultimum remedium principle: Reframing criminal tax law as a citizenship issue in Indonesia

Abstract

This article reframes the ultimum remedium principle in Indonesian criminal tax law as a problem of fiscal citizenship and Pancasila-based public authority. It asks when criminal enforcement is legitimate, rather than presuming that administrative enforcement is always preferable. The study employs statutory, conceptual, and case approaches. It analyses the 1945 Constitution; Articles 8, 12, 13, 22, 38, 39, 39A, 40, 43A, 44, 44A, 44B, and 44C of the Law on General Provisions and Tax Procedures (KUP Law); and three purposively selected lines of decisions: Supreme Court Decision No. 2239 K/Pid.Sus/2012, Supreme Court Decision No. 1149 K/Pid/2022, and District Court of Boyolali Decision No. 6/Pid.Sus/2023/PN Byl as upheld through Supreme Court Decision No. 4878 K/Pid.Sus/2023. Fiscal citizenship is operationalised through civic trust, civic duty, civic equality, and civic participation, while the Pancasila principles are translated into criteria of integrity, proportionality, legitimacy, accountability, and distributive fairness. The analysis finds that Articles 13 and 40 of KUP Law regulate different legal clocks—administrative assessment and criminal prosecution—and should not be treated as conflicting norms. The cases demonstrate that criminal sanctions can legitimately operate as a last-resort escalation for organised falsification, intentional non-remittance, repeated conduct, or serious fiscal harm. Criminalisation becomes disproportionate when culpability is low, correction and recovery remain effective, or authorities fail to justify why less restrictive measures are inadequate. The article proposes a graduated enforcement test that combines fiscal recovery with reasoned, reviewable, and equality-sensitive criminalisation.