KEBIJAKAN FORMULASI UNSUR TINDAK PIDANA MAKAR TERHADAP PRESIDEN DAN WAKIL PRESIDEN DALAM PERSPEKTIF KUHP NASIONAL

Abstract

The enactment of Law Number 1 of 2023 on the Criminal Code (the National Criminal Code) changed the way makar (treason) against the President and Vice President is formulated. This article aims to analyse how the elements of the offence are regulated and to determine the direction of penal policy for their future formulation. The study is normative legal research using statute, conceptual, and case approaches. Primary, secondary, and tertiary legal materials were collected through library research and analysed by inventory, systematisation, and interpretation. The findings show that Article 191 of the National Criminal Code retains the three forms of intent found in Article 104 of the former Criminal Code, namely to kill, to deprive of liberty, or to render the President and/or Vice President unable to govern. The decisive change lies in Article 160, which moves the threshold of makar from the commencement of execution to the stage of preparation while introducing the word “attack”. Article 196 additionally criminalises conspiracy and preparation to commit makar without prescribing its own penalty, so the general rules in Articles 13 and 15 apply. The overlap among these provisions blurs the boundary between intent, preparation, commencement of execution, and execution, and exposes preparatory conduct to a maximum penalty of death. The article concludes that future formulation should define “attack” restrictively, restore a graded structure of liability, qualify punishable preparation by objective danger, and expressly exclude criticism, peaceful assembly, and constitutional impeachment demands from the scope of makar.