The Dilemma of Confiscating Criminal Assets

It is only natural there is an urge to complete this bill. The people’s collective concern has also grown when news spread about anomalies in the wealth of officials, with values that do not make sense.

The House of Representatives may be busy preparing to deliberate the draft bill on confiscation of criminal proceeds.

Amid the frenzy over presidential and vice-presidential candidates, many hope this bill will be completed soon, even though some are being cautious and thorough.

The reasons for the above attitudes vary. There are those who are concerned by how the legislation looks, which has recently been “enacted in the morning, taken to the Constitution Court in the afternoon”. There are also those who are cautious and are trying to read the direction and political air surrounding the House’s stance, such as how House members reacted to the idea of a restriction on the currency transactions bill.

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> Passing the Asset Confiscation Bill

Apart from that, there are also those wary about how the contents of the bill will relate to its effectiveness later. The latter seems to emerge as excess when listening to the designation of the bill, dubbed the asset confiscation bill.

Of course, it is only natural there is an urge to complete this bill. Pent-up feelings of restlessness have accumulated as more and more cases become unreachable, or unresolved, even when relying on the Corruption Crime Law. The people’s collective concern has also grown when news spread about anomalies in the wealth of officials, with values that do not make sense.

It all seems to be accumulating, consolidating conditions and at the same time strengthening the justification to accelerate the completion of this bill.

Main field/basis

As far as assets able to be confiscated are concerned, the bill covers two issues: those related to criminal acts and those suspected of being related to criminal acts.

In other words, the bill will function in two fields. First, after and as a completion of a criminal case (such as a convicted criminal act of corruption) that still leaves behind related assets that have not been confiscated (Article 7, Paragraph 2.b).

Second, it will also function on its own, on the basis of information and conjecture (Article 2, Article 3 and Article 5, Paragraph 2.a). In contrast to the first, vigilance is necessary regarding cases in the second field.

Legal action that will be taken against acts suspected of causing state losses,

However, no matter how great the feelings of frustration are behind such cases, clarity of thought and steps to be taken should be maintained. The reasons are clear.

Legal action that will be taken against acts suspected of causing state losses, even though it has not been proven a crime was committed, seems to delay the presence of the conception as stated in Article 2 of this bill. The article emphasizes the scope of the bill that “confiscation of assets based on this law is not based on criminal convictions against perpetrators of criminal acts”.

Simultaneously, this intention is seemingly clarified in the contents of Article 5 Paragraph (2) letter (a) of the bill, when confiscation of assets also includes “assets that are not in balance with income or are not in balance with sources of additional wealth that its origin of acquisition cannot be proved legally and are suspected to be related to criminal assets that have been obtained since the enactment of this law”.

Philosophical consistency

When the bill’s reach covers criminal assets, the problem seems simpler because it is clear a crime has been committed. However, to enforce the provision on “suspected or reasonably suspected” matters, greater vigilance is required. Conceptually, this is fundamental in nature.

This is fundamental, because it is based on heavy and nuanced content of politics, philosophy and human rights. If there is no clarity on this matter, it will not be impossible for the flow of thought and the entire concept outlined in the bill to be disrupted. It is not impossible; it will invite a lot of debate later.

In the “considerations” section of the bill, the principles of the Unitary Republic of Indonesia (NKRI) are firmly affirmed as “a rule of law that guarantees legal protection and certainty with the core of justice and truth…”.

With such an affirmation, the question that will arise is to what extent will the system of this bill not conflict with the concept of “due process”, which in fact must be based on the strength and mechanism of evidence?

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> Lifestyle of State Officials

In a bill that seems to rely on the information and discretion of investigators (Article 8, Paragraph 2: attorneys, police officers, the Corruption Eradication Commission [KPK] and civil investigators) to develop and act based on allegations or suspicions, one can only imagine how controlling the investigators’ discretion will spark new problems in law enforcement.

The National Police, which has tremendously upheld the tagline “precision”, has been lax in managing its own movements and monitoring its inner security mechanisms.

Even the KPK is unable to monitor the behaviors of its investigators, which have been reported as deviant. Not to mention the oversight within the bureaucracy, which is said to only be the tip of the iceberg due to cases involving taxation, customs and defense.

Even the KPK is unable to monitor the behaviors of its investigators, which have been reported as deviant.

Cases concerning those three matters, whether in the National Police of KPK, for example, which were then “articulated” in Article 5 Paragraph 2.a of the asset confiscation bill, show how failures in human resource development and weaknesses in the internal control system must be paid for by an “expensive” concept in our legal and judicial system.

Asset management being regulated in this bill will also add a significant burden to the attorney general’s function. Verification of the possibility of different types, amounts and values of assets confiscated from the results of allegations by investigators, whether by the Attorney General's Office (AGO), the police, KPK or civil servant investigators (PPNS), and which is usually handed over to the attorney general, involves auditing, courage and skills that are not small or simple.

For the AGO, this function clearly presents its own challenges amid the amount of work that must be done to answer the need to increase the capacity and competence of prosecutors, amid the presence of functions and authorities that have been emphasized in the new Prosecution Law.

Legal hook

It is unfair to expose the problem without offering a way out. Efforts to deal with deceitful behavior detrimental to the state should be clarified.

The technical aspects related to criminal law, criminal procedure or finance must be consulted with experts. However, aligning the concept with the established principles and principles in the law of the country should be pursued by first asserting the mechanism to be operationalized would be better if it was related to existing laws.

If this is a “downstream” legal approach that stems from criminal acts of corruption, then include the Corruption Crime Law in the “reminders” section of this bill. If the allegations develop or expand and should be traceable to transaction irregularities, should not the claim for confiscation of assets be based on or a follow-up to the Money Laundering Law?

Likewise, if the origin concerns taxation or import duties, or perhaps irregularities originating from deviations from obligations regulated in other laws and regulations. It would make more sense if the law concerned is included in the “reminders” section of this bill. Will those not legislations also contain criminal provisions in them?

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> (Un) lawful Wealth

> Confiscation of Corruptor’s Assets Needs State's Commitment

Limiting the “reminders” section of the bill to only Articles 5 and 20 of the Constitution, which refer to the authorities of the President and House as lawmakers, is a given. However, the inclusion of other laws that function as the backbone and core of the matters regulated in this bill is important and necessary.

Adjusting or rearranging the body of the bill as a consequence of attachment to the Corruption Law and Money Laundering Law or others should be considered.

Likewise, if information and allegations were to be used as the basis for operations, what were the conditions and measures to justify the allegations, and which authority gave justification for the allegations by the investigators (to then carry out tracing, blocking, terminating transactions and finally conveying to the attorney general to submit a request for asset confiscation).

Would it be enough if done by the superiors of the respective investigators? Are the concepts applied, among others, in Articles 5, 6, 7 of the asset confiscation bill sufficient?

Must we still add the AGO to this list or can we not optimize one of the existing ones?

In another example, how will the excess of negative practices in law enforcement and authority, which in the people's perspective are characterized by irregularities, abuse of authority and unfavorable corps rivalry, be dealt with?

Without intending to “smash” the weaknesses of the internal security system and mechanism (kamdal) or operational control (dalops) as the National Police have done, what control systems are in place for all agencies to ensure investigators (Article 8 paragraph 2) realize the effectiveness of the operationalization mechanism of the bill?

The same goes for the institutional aspects of asset management. The government currently has many asset management institutions. The Law and Human Rights Ministry has a state storage for confiscated objects. The Finance Ministry has an office that manages state assets. Among state-owned enterprises (SOEs), there is also an Asset Management Company. Must we still add the AGO to this list or can we not optimize one of the existing ones?

KOMPAS/LUCKY PRANSISKA

Bambang Kesowo

Bambang Kesowo, Indonesian law practitioner 1968-2004, Gadjah Mada University (UGM) Faculty of Law postgraduate lecturer 2006-2020

This article was translated by Kesya Adhalia.