HMP Law Office – Yogyakarta Law Office – The political struggle ahead of the elections that occurred in Indonesia recently brought an atmosphere of tension and disharmony in the nation and state. One of the main causes was the emergence of the President’s impeachment discourse after a request from a number of figures and civil society who were members of the Petition of 100 People’s Sovereignty Enforcers who went to the Coordinating Minister for Police, Mahfud MD, to impeach President Joko Widodo for allegedly violating the constitution and reports related to alleged negligence in the election. – Lawyer / Advocate / Legal Consultant
Some of the reported allegations of constitutional violations by the President include nepotism in the Constitutional Court (MK), the intervention of the Corruption Eradication Commission through the KPK Board of Trustees through the revision of the KPK Law, the issuance of Presidential Regulation No. 54 of 2020 concerning the State Budget which should be discussed and approved by the House of Representatives (DPR), and the issuance of the Job Creation Perpu by overriding orders from the Constitutional Court decision No. 91/PUU-XVIII/2020 which is conditionally unconstitutional.
Interestingly, the mechanism carried out in submitting an impeachment application to the Coordinating Minister for Political Affairs is a wrong step and is not in accordance with the procedure for the impeachment of the President in the Indonesian constitutional system which is explicitly explained in the constitution, namely Article 7B paragraph (1) of the 1945 Constitution states that “The proposal to dismiss the President and / or Vice President can be submitted by the House of Representatives to the People’s Consultative Assembly only by first submitting a request to the Constitutional Court to examine, prosecute, and decide the opinion of the House of Representatives that the President and/or Vice President has committed a violation of the law in the form of treason against the state, corruption, bribery, other serious crimes, or reprehensible acts; and/or the opinion that the President and/or Vice President is no longer qualified as President and/or Vice President”. – Law Firm / Law Office / Advocate / Lawyer / Pengacara
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Thus, procedurally, the attempt made in impeaching the president to the Coordinating Minister is a legally unconstitutional step so it is difficult for the president to be brought down by such a mechanism. However, what is interesting about the impeachment grounds put forward by the Petition 100 group is related to the phrase “treason against the state” which gives rise to various kinds of polemics and interpretations. So, what is the qualification and juridical explanation of the phrase “treason against the state”?
The 1945 Constitution expressively does not provide a definite explanation related to the element of treason against the state. However, we can refer to several criminal provisions in other laws and regulations such as Law No. 24 of 2004 concerning the Constitutional Court in Article 10 paragraph (3) point a states that treason against the state is a criminal offense against state security as stipulated in the Law.
Crimes against state security itself are regulated in the Criminal Code (KUHP), namely in Articles 104 to Article 129. For example, Article 112 of the Penal Code states that “Whoever knowingly announces, or reports or conveys letters, news and information about a matter to a foreign country, when he knows that such letters, news or information must be kept secret in the interest of the state, shall be punished with imprisonment for a maximum of seven years”. – Pengacara / Kantor pengacara / Advokat / Kantor Hukum
In addition, in the explanation of Article 169 letter d of Law Number 7 of 2017 concerning General Elections, it is explained that what is meant by never betraying the state is never involved in separatist movements, never carrying out unconstitutional movements or with violence to change the basis of the state, and never violating the 1945 Constitution.
Meanwhile, according to Wirjono Pordjodikoro, explained that there are 2 (two) kinds of betrayal, namely. First, internal treason (hoogveraad) aimed at changing the existing state structure or government structure, including criminal acts against the head of state. Second, external treason (landverraad) aimed at endangering state security against attacks from abroad. For example, providing help to foreign countries that are hostile to our country.
If the allegation of treason against the state does have strong evidence, then procedurally, the initiator in the impeachment process is the DPR, then it is then heard to the Constitutional Court to legally test whether the president has been legally and convincingly proven to have violated the law or not, after that only then the Constitutional Court decision is submitted to the People’s Consultative Assembly (MPR) to decide whether the president deserves to be impeached or vice Versa.
Thus, if we look at the process flow of impeachment itself means that although the president has been proven to have violated the law, the final decision depends on the decision of the People’s Consultative Assembly which is also a political institution. This is because the president is politically elected so that at the time of dismissal the president must be politically dismissed as well. – Kantor Hukum HMP & Associates
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