President Impeachment Process in Indonesia
I. Preliminary
In relation to the position of Head of State or Government, 'impeachment' means the calling or the prosecution to ask for accountability for violations of law allegation made in his tenure.Almost all state constitutions regulate the problem "impeachment" or "impeachment" as a legitimate and effective way to monitor the actions of the government in the constitution in order to avoid abuse of power (abuse of power / detournement de pouvoir).
Impeachment or impeachment issue is actually not a new thing.Even in our country, have come up before impeachment or impeachment against the President. Impeachment or impeachment is set in the Constitution of the State of Indonesia Year 1945 (UUD 1945), but along with the development of the state administration to the principles of modern democratic country that wants to amend the 1945 Constitution (Amendment), the process of impeachment and even then had a change anyway.
II. Legal Basis impeachment
There are several relevant legal basis pemkazulan process against the President and / or Vice President according to the 1945 Constitution, the MPR Decree No. 6/MPR/2010 of the Constitutional Committee and the Standing Orders of the Constitutional Court Regulation Number 21 Year 2009 on Guidelines for examining Opinion Breaking the House of Representatives Regarding the people of Alleged Violation by the President and / or Vice President.
A. ACT OF 1945
A. Article 7-A:
"The President and / or Vice President may be removed in the office by the People's Consultative Assembly upon the recommendation of the House of Representatives, both proved to have committed an offense of treason against the state, corruption, bribery, other felonies, or moral turpitude or if it is proven not longer qualify as a President and / or Vice President ".
2. Article 7-B paragraph (1):
"The proposal to impeach the President and / or Vice President may be brought by the House of Representatives only by first making a request to the Constitutional Court to examine, hear, and decide upon the opinion of the House of Representatives that the President and / or Vice President has violated the law in the form of betrayal of the countries, corruption, bribery, other felonies, or moral turpitude and / or that the President and / or Vice President is no longer eligible as President and / or Vice President ".
3. Article 7-B paragraph (2):
"The opinion of the House of Representatives that the President and / or Vice President has done pelnaggaran law or no longer meets the qualifications to serve as President and / or Vice President has violated the law or no longer qualify as a President and / or Vice President is in the framework of the House of Representatives oversight function ".
4. Article 7-B paragraph (3):
"The filing of a request Parliament to the Constitutional Court can only be done with the support of at least 2/3 of the members of Parliament who attended the plenary session attended by at least 2/3 of the members of the House of Representatives".
5. Article 7-B paragraph (4):
"The Constitutional Court shall examine, hear and decide the fairest of the opinion of the House of Representatives no later than ninety days after the request of the House of Representatives was received by the Constitutional Court".
6. Article 7-B paragraph (5):
"If the Constitutional Court ruled that the President and / or Vice President proved to have violated the law of treason against the state, corruption, bribery, other felonies, or moral turpitude, and / or the President and / or Vice-President no longer qualify as President and / or Vice President, House of Representatives held a plenary session to forward the proposal to impeach the President and / or Vice President to the People's Consultative Assembly "
7. Article 7-B paragraph (6):
"People's Consultative Assembly shall convene to decide on the proposal of the House of Representatives no later than thirty days from the People's Consultative Assembly accepted the proposal".
8. Article 7-B paragraph (7):
"The decision of the MPR over the proposal to impeach the President and / or Vice President must be taken in the People's Consultative paripurnaMajelis meeting attended by at least 2/3 of the members present, after the President and / or Vice President given the opportunity to submit an explanation in a plenary sessionPeople's Consultative Assembly ".
B. DECISION OF THE CONSULTATIVE ASSEMBLY OF THE REPUBLIC OF INDONESIA NUMBER: Rules of Procedure 6/MPR/2010 ON CONSULTATIVE ASSEMBLY OF THE REPUBLIC OF INDONESIA.
A. Article 5 letter c:
"Parliament decide on the proposal to dismiss the President and / or Vice President in his term, after the Court ruled that the President and / or Vice President proved to have violated the law of treason against the state, corruption, bribery, other felonies, or moral turpitude, and / or the President and / or Vice President is no longer eligible as President and / or Vice President ".
2. Article 5, letter d:
"Choose a Vice President of 2 (two) candidates nominated by the President if a vacancy occurs the position of Vice President in his term".
3. Article 112
(1) In the case of vacant Vice-President, the Assembly held a plenary session of the Assembly no later than 60 (sixty) days to elect a Vice President;
(2) Time of event the Plenary Session of the Assembly as referred to in paragraph (1) is decided at the Joint Meeting of the Assembly Chairman, Chairman of the fractions and Leadership Group Member;
(3) Joint Meeting referred to in paragraph (2) occur not later than 3 x 24 (three times twenty four) hours after the vacancy occurs the position of Vice President;
(4) The notice of the Assembly delivered a letter to the President on the outcome of the Joint Meeting as referred to in paragraph (2) no later than 3 x 24 (three times twenty four) hours after the joint meeting held;
(5) The notification referred to in paragraph (4) attached to the conditions that must be completed by candidates for Vice President in accordance with laws and regulations;
(6) the president proposes 2 (two) candidates for Vice President and completeness of the terms to the Executive Assembly, no later than 14 (fourteen) days prior to the Plenary Session of the Assembly;
(7) No later than 2 x 24 (two times twenty four) hours before the deadline of 14 (fourteen days) for the President submitted the proposal 2 (two) candidates for the Vice President referred to in paragraph (6), the Assembly held a Joint Meeting of the Assembly Leaders , Chairman of the factions and groups to form a verification team members;
(8) Verification Team as referred to in paragraph (7) in charge of verifying the completeness and correctness of the requirements document 2 (two) candidates for the Vice President referred to in paragraph (6);
(9) Verification Team as referred to in paragraph (7):
a. consists of at most 5% (five percent) of the Members of the faction and its composition reflects the Group Members in proportion;
b. membership is determined by the Decree of the MPR Chairman;
c. his tenure at the latest 7 (seven) days after the President gave the completeness of the terms of the Vice Presidential candidate referred to in paragraph (6);
d. can form a team of experts; and
e. report the results of its work to the Leadership Assembly;
(10) In this report the work of Tim Verification stating that the terms of one or 2 (two) candidates proposed by President Vice President is not yet complete, Chairman of the Assembly submit written notification to the President for the repair and / or complete no later than 4 (four) days before trial Paipurna Assembly referred to in paragraph (2) held;
(11) In the event that the conditions stated is incomplete as referred to in paragraph (10) then the Chairman may extend the service life of the Assembly Verification Team up to 1 x 24 (one time twenty-four) hours before the plenary session referred to in paragraph (2)held;
(12) In the event the terms still revealed incomplete after an extended period of employment verification team as referred to in paragraph (11) then the Chairman may invite the Assembly to postpone the implementation of the Joint Meeting of the Plenary Session as referred to in paragraph (2);
(13) Delays implementation of the Plenary Session as referred to in paragraph (12) does not exceed the time limit of 60 (sixty) days as referred to in paragraph (1);
(14) Chairman of the MPR set 2 (two) candidates for Vice-President nominated by the President referred to in paragraph (6) become a candidate for Vice President who has met the requirements to be selected based on the verification team reported its work;
(15) two (2) Candidates for the Vice President referred to in paragraph (14) must submit a statement of candidacy in the readiness of the Assembly plenary session before the election;
(16) Candidates for Vice President who gets the most votes in the election at the Plenary Session of the MPR set as Vice President;
(17) In the event that votes obtained by each candidate equally, the selection was repeated for 1 (one) time again;
(18) In the case of election referred to in paragraph (17) the result remains the same, the President chose one among the candidates for vice president;
4. Article 113:
"Vice President-elect referred to in Article 112 paragraph (16) or subsection (18) assigned to the Legislative Assembly".
C. CONSTITUTIONAL COURT OF REGULATION NO 21 OF 2009 GUIDELINES ON THE PROGRAM IN THE HOUSE OF REPRESENTATIVES decision on the opinion on the allegations VIOLATION BY THE PRESIDENT AND / OR VICE PRESIDENT.
This regulation consists of 10 Chapters and 23 Articles. Chapter I contains general provisions, Chapter II Parties, Chapter III Procedure for Filing an Application, Chapter IV Registration and Scheduling Case Assembly, Chapter V trial, Chapter VI Termination of Investigation Process, Chapter VII of the Consultative Meeting, ruling Chapter VIII, Chapter IX Provisionsothers, and Chapter X Closing.
A. Article 2:
(1) The Court's decision on the appeal opinion that the House is the House of Representatives represented by the head of the House of Representatives may appoint legal counsel;
(2) The alleged violation is the President and / or Vice President who can be assisted and / or represented by attorneys.
2. Article 3 paragraph (3) letter a:
"(3) Parliament shall clearly describe in their petition regarding:
a. President and / or Vice President has violated the law of treason against the state, corruption, bribery, other felonies, or moral turpitude ".
3. Article 4 paragraph (1):
"In this opinion the House erkaitan with allegations that the President and / or Vice President has violated the law as referred to in Article 3 paragraph (3) letter a, the petition must contain details on the type, time, and place of violation of law by the President and / or Vice President ".
4. Article 9 paragraph (1):
"The trial conducted by the Plenary of Judges attended by at least 7 (seven) constitutional justices."
5. Article 19
(1) The decision of the Court's opinion must be decided upon in the House of Representatives no later than 90 (ninety) days from the request is recorded in the BRPK ".
(5) Court decisions are final and legally binding for the Parliament as the party who filed the petition ".
6. Article 20
"Court decisions which the Parliament to grant the President did not rule out filing and / or Vice President in the trial of criminal, civil, and / or the state administration in accordance with the principles and laws of each event."
7. Article 21
"In terms of procedural law on the examination of DPR opinion has not been regulated in this Regulation, mutatis mutandis, apply the principles of criminal procedure, civil procedure law, procedural law and state administration".
III. Impeachment process in Indonesia
Impeachment or impeachment process in Indonesia took a long time and is not easy. The process of "impeachment" begins with a "proposed termination" of the House of Representatives to the Assembly about the alleged violation as defined in Section 7B, which must be requested prior to the Constitutional Court to examine, hear, and decide upon the opinion of the House of Representatives that the President and / or Vice President hashave violated the law in question.
However, prior to the existence of "the proposed dismissal of" the President and / or Vice President, Parliament must first use the "right to express opinions" of the implementation of control functions associated with the implementation of the right of "interpellation" or "right of inquiry" After using the right meyatakan opinion, the House of Representatives will form a special committee consisting of all elements of factions in the House with the House decision, which shall report the performance of its duties to the plenary session of the House of Representatives no later than 60 (sixty) days since the establishment of the special committee.
The next process is that if the House ultimately decided to accept the special committee report stating that a violation has occurred, then the next House of Representatives expressed their opinions to the decision of the Court. The Court further obligation to investigate, hear and decide the fairest of the opinion that the House of Representatives no later than 90 (Ninety) days after the request is received the Parliament's Constitutional Court. If the Court were to decide that the opinion of the House has proved, in the sense that it has been a violation of law is alleged, then the House will hold a plenary meeting to forward the proposal to impeach the President and / or Vice President to the MPR.
Is the impeachment process has been completed? No, because in accordance with the provisions of Article 7B paragraph (6) and paragraph (7) of the 1945 Constitution, at least 30 (thirty) days after receiving the proposal the Assembly shall hold a plenary session to decide upon the proposal to impeach the President and / or Vice President, attended by sekurangkurangnya ¾ of the members and approved by at least 2/3 of the members present, after the President and / or Vice President given the opportunity to submit an explanation in the plenary session of the Assembly.
IV. Possible Success (Level of Possibility)
Main obstacle is the impeachment process of Article 7-B paragraph (3) of the 1945 Constitution:
"The filing of a request Parliament to the Constitutional Court can only be done with the support of at least 2/3 of the members of Parliament who attended the plenary session attended by at least 2/3 of the members of the House of Representatives".
Judging from our coalition, the Democratic Party is currently the largest fraction, with the number of 148 persons or 26.42 per cent from 560 House members. Plus members of the Democratic vote if the PAN and the PKB will reach 222 people over a third alias legislators or 187 people.
Not to mention if the added noise and the Golkar Party, each MCC totaled 108 seats and 59 seats. Both parties have, until now still a government coalition with SBY-Boediono.
It can be concluded, from the composition of seats in Parliament politician, is almost impossible to overthrow the government of SBY-Boediono.
The second obstacle is blocking the impeachment was still able to inhibit the Democratic presidential impeachment process through the mechanism of judicial decision in the Constitutional Court. As is known, the Court amounted to 9 people with 3 people is a proposal of the President, three people from the proposed MA and 3 other people came from the House proposal. The Democrats will certainly try to influence the 3 people who came from the House proposal to thwart the impeachment of President. With 3 people from the government, the Democrats need only an additional two members of the Constitutional Court to declare the House against the president's dawaan tdak true.
The third obstacle, if the person is considered a member of the Constitutional Court was really independent until the error is assumed to be proved then the president of Democrats still can play again in the MPR. Once again, if alone, Democratic votes (21.29%) have not been enough to change the direction of the Assembly decision. However, with the addition of sound compatriots in the MPR F MCC (8.24%), F PAN (6.65%), F PPP (5.35%), F CLA (4.05%), the idea of impeachment president of Ko-bener be an impossible idea. Their number reached almost half the total votes in the Assembly. While the support needed to achieve 2/3 of total members or a minimum of 66.7 percent.
Not to mention if Golkar continued to support the SBY-Boediono, the impeachment process looks more and more impossible.
V. Alibi for the success of impeachment
First, the enforcement of law and the constitution can not be implemented with only a text based on sound law without regard to enforcement. Major problems and this is reflected in the reality of law in Indonesia is currently used as a destination that is when the procedure has implications for the possibility that officials who happened to be innocent or guilty allegedly made the reason for the procedure as an excuse to perpetuate the post sehngga fragile foundations of law and justice are built in Indonesia . The right way, it should follow the procedure to realize the substance of the substantive fairness.
Thus, viewed from the aspect of constitutional law have the highest degree (supremacy), the basic consideration for the constitution-making body created by law or in the institutions where the establishment on behalf of the people, comes from the people. So that the force strength guaranteed by the people and should be implemented directly to the public for their interests.
Therefore, when people assess the heads of state or government have berhianat on people and committed serious crimes, the mandate may be revoked by the people.
Second, viewed from the aspect of moral constitution as a fundamental basis, so that the constitution is below. In other words, the constitution must not conflict with the universal values and moral ethics. Therefore, if the rules conflict with the ethics of moral constitution, the constitution should be ruled out. The point is there a higher law above the constitution of the moral.
Third, the principle of equality before the law (equality before the law) as an element of state law, without discrimination. In principle, everyone should receive equal treatment before the law. Thus, regardless of background social status, occupation, religion, ethnicity, etc. of a person, when he was caught in a legal case, it must be treated according to regulations.
Conclusion of the party who saw the impossibility of impeachment against the head of state and government is the mechanism of impeachment of President and / or Vice President in Indonesia is a weak point of the 1945 Constitution as the rule of law was defeated by political practice.
