Hukum

People Power Guaranteed By Law and Country Constitution Is Not A Treason

Nicholay Aprilindo

By : Nicholay Aprilindo, Researcher at the Strategic Assessment Institute for Politics on Human Rights and Security

THAT there is a temporary statement by the parties that People Power is treason, is a panic statement that is very misleading and does not meet the standards of sane legal logic.

One legal aspect that always experiences norm conflicts in the law practice is about the interests of state law (staatsbelangen) in the Criminal Code, specifically treason crimes. In realizing dignified law enforcement by upholding “fair legal certainty” (Article 28D paragraph 1 of the 1945 Constitution), the enactment of criminal law must not exceed the prescribed legal norms. Referring to the provisions of Article 28D paragraph (1) of the 1945 Constitution, it is known that legal axiology adhered to refers to fundamental justice values ​​and legal certainty, both formal and material law must contain certainty and justice, including in their implementation ( in concreto).

Thus, criminal acts (treason) should not be interpreted broadly, reaching out for inappropriate actions to be categorized as criminal acts of treason.

In treason, there are at least 5 (five) types of actions that are prohibited in the Criminal Code, namely Article 104 (Treason with the intent to kill, or seize independence, or negate the ability of the President); Article 106 (treason with the intention of separating from Indonesia); Article 107 (treason for the purpose of overthrowing the government); Article 108 (rebellion); and Article 110 (conspiracy to commit crimes according to Article 104, Article 106, Article 107, and Article 108).

“Treason” meant is “anslaag” which means attack or “violence attack”, which must be associated with the formulation of other norms, namely Article 87 of the Criminal Code. As an “attack” there is a need for intentions and acts of commencement of implementation, so that the fulfillment of these conditions for the perpetrators of criminal acts of treason has been carried out by law enforcement. Anslaag can also be understood as a scheming (misdadig a plan).

The original editor of treason is taken from Article 107 paragraph (1) of the Criminal Code. To elaborate on the meaning of treason, the author quotes the original editor of Article 107 paragraph (1) of the Criminal Code which reads: “De aanslag, ondernomen met het oogmerk om omventelingteweeg to brengen, wortft gestrat me gevangenisstraf van ten hoogste vifjtien jaren”.

Engelbrecht translated, “treason carried out with the intention of breaking down the government, was punished with a prison for a maximum of fifteen years”.

Moeljatno gave a translation, “treason with the intention of overthrowing the government was threatened with a maximum imprisonment of fifteen years”.

Both of these formulations require the existence of an active act in the form of “breaking down or overthrowing a legitimate government”. Judging from its form, the formulation qualifies against formal law, namely limiting criminal acts only to what is meant in positive criminal law and does not provide a space for formulating criminal acts outside criminal law, what is stated in criminal law, then that is offense.

As long as the author’s knowledge, treason must also be interpreted as any action carried out “with purpose” (opzet als oogrmerk) to achieve one of the consequences mentioned in the formulation of a criminal act, both leading to the emergence of such consequences, or which can be considered an experiment to produce consequences as formulated.

Regarding intentionally patterned with this intention related to the element of wanting and knowing (willens en wetten) which is associated with crime against state security (misdrijven tegen veiligheid van de staat). Article 87 of the Criminal Code requires that the most important element in this crime is the intention and the beginning of implementation, and of course the beginning of the intended implementation is the beginning of an act that is against the law.

Related to “People Power” in relation to demanding an honest and fair presidential election, it is a peaceful action in the perspective of a democratic country. It is undeniable that there have been strong indications of fraud in the implementation of the presidential election, both concerning the procedures, processes and mechanisms carried out in a structured, systematic and massive manner. People Power is not an attack aimed at “overthrowing or overthrowing the government”, but only in the form of expressions of hope that do not include criminal acts. Postulated as follows:

First, objectively what is meant by People Power is not close to the intended offense, namely treason offense. In other words there are no indications or potential for criminal acts of treason as stipulated in the Criminal Code.

Secondly, subjectively reviewed, which is seen and the point of intention, People Power is in accordance with its mission, is limited to the expression of hope in the era of democratization, so that there is no gap with the intention of action and consequences that what is done is aimed at treason.

Third, People Power is not an illegal act. People Power does not conflict with the applicable positive law and therefore it is not a criminal offense. People Power is guaranteed by the Constitution and various laws and regulations. In Article 28E Paragraph (3) of the 1945 Constitution it is stated, “Everyone has the right to freedom of association, assembly and opinion.” In Law Number 9 of 1998 concerning Independence Delivering Public Opinions, it is also recognized and guaranteed to freely express opinions as the realization of democratic rights and responsibilities in the life of the community, nation and state (Article 2). In expressions of opinion in public by citizens, the government apparatus is obliged and responsible for protecting human rights, respecting the principle of legality, respecting the principle of presumption of innocence, and holding security (Article 7).

Freedom of association, assembly and opinion is recognized and guaranteed in Law Number 39 of 1999 concerning Human Rights, Article 24 paragraph (1) states “Every person has the right to gather, gather and organize for peaceful purposes.” Article 25 stated “Everyone has the right to express their opinions in public, including the right to strike in accordance with the provisions of the laws”.

Furthermore, Indonesia has ratified the ICCPR through Law No. 12 of 2005 concerning Ratification of the International Covenant on Civil and Political Rights.

Baca Juga:  Sri Mulyani Sabet Lagi Penghargaan Menteri Keuangan Terbaik Global

One of the covenant substances, stipulates the right of people to have: First, objectively what People Power means is not close to the intended offense, namely treason. In other words there are no indications or potential for criminal acts of treason as stipulated in the Criminal Code.

Secondly, subjectively reviewed, which is seen and the point of intention, People Power is in accordance with its mission, is limited to the expression of hope in the era of democratization, so that there is gap with the intention of action and consequences that what is done is aimed at treason.

Third, People Power is not an illegal act. People Power does not conflict with the applicable positive law and therefore it is not a criminal offense. People Power is guaranteed by the Constitution and various laws and regulations. In Article 28E Paragraph (3) of the 1945 Constitution it is stated, “Everyone has the right to freedom of association, assembly and opinion.” In Law Number 9 of 1998 concerning Independence Delivering Public Opinions, it is also recognized and guaranteed to freely express opinions as the realization of democratic rights and responsibilities in the life of the community, nation and state (Article 2). In expressions of opinion in public by citizens, the government apparatus is obliged and responsible for protecting human rights, respecting the principle of legality, respecting the principle of presumption of innocence, and holding security (Article 7).

Freedom of association, assembly and opinion is recognized and guaranteed in Law Number 39 of 1999 concerning Human Rights, Article 24 paragraph (1) states “Every person has the right to gather, gather and organize for peaceful purposes.” Article 25 stated “Everyone has the right to express their opinions in public, including the right to strike in accordance with the provisions of the laws”.

Furthermore, Indonesia has ratified the ICCPR through Law No. 12 of 2005 concerning Ratification of the International Covenant on Civil and Political Rights.

One of the covenant substances, establishes the right of people to have room to express their opinions:

First, objectively what is meant by People Power is not close to the intended offense, namely treason offense. In other words there are no indications or potential for criminal acts of treason as stipulated in the Criminal Code.

Secondly, subjectively reviewed, which is seen and the point of intention, People Power is in accordance with its mission, is limited to the expression of hope in the era of democratization, so that there is no gap with the intention of action and consequences that what is done is aimed at treason.

Third, People Power is not an illegal act. People Power does not conflict with the applicable positive law and therefore it is not a criminal offense. People Power is guaranteed by the Constitution and various laws and regulations. In Article 28E Paragraph (3) of the 1945 Constitution it is stated, “Everyone has the right to freedom of association, assembly and opinion.”

” In Law Number 9 of 1998 concerning Independence Delivering Public Opinions, it is also recognized and guaranteed to freely express opinions as the realization of democratic rights and responsibilities in the life of the community, nation and state (Article 2). In expressions of opinion in public by citizens, the government apparatus is obliged and responsible for protecting human rights, respecting the principle of legality, respecting the principle of presumption of innocence, and holding security (Article 7)

Freedom of association, assembly and opinion is recognized and guaranteed in Law Number 39 of 1999 concerning Human Rights, Article 24 paragraph (1) states “Every person has the right to gather, gather and organize for peaceful purposes.” Article 25 stated “Everyone has the right to express their opinions in public, including the right to strike in accordance with the provisions of the laws”.

Furthermore, Indonesia has ratified the ICCPR through Law No. 12 of 2005 concerning Ratification of the International Covenant on Civil and Political Rights.

One of the covenant substances, stipulates the right of people to have opinions without the interference of other parties and the right to freedom of expression (Article 19). The ICCPR basically contains provisions regarding restrictions on state authority. Therefore, the rights accumulated in it are often also referred to as negative rights.

This means that the rights and freedoms guaranteed in it will be fulfilled if the state’s role is limited.

If the state too intervenes, then the rights and freedoms set in it will be violated by the state. States parties that violate these rights will get criticism as a country that has committed serious violations of human rights (gross violation of human rights).

We know that the level (escalation) of the threat or distrust of various types of actions is different, so is the level of threats to the safety and authority of the government. How can we judge an act (actus reus) and moreover the inner attitude (mens rea) of each person’s actions is quickly said to be an act of treason, even though in reality the nuances and context are so diverse, including People Power.

It cannot be justified by a statement saying that People Power is indicated as treason, the statement shows the panic and fear of the authorities against the demands of fulfilling the political rights of the people deprived by the state and shows the error and ignorance in understanding the major premise (in abstracto).

Thus, the government, especially the security apparatus and law enforcement officials must be careful to apply articles relating to treason and not be a tool to silence freedom of expression in a democratic state of law, such as the enactment of the Subversive Law during the New Era.

Law enforcement officials should not be impressed with getting around freedom of expression, expressing opinions and freedoms of civil and political rights guaranteed by the state constitution of the 1945 Constitution, Law No. 39 of 1999, and guaranteed by the International Covenant, Article 19 ICCPR which Indonesia has also ratified with Law No.12 of 2005. []

 

To Top