Third, the asset forfeiture bill also governs asset management which comprises nine types of activities – storage, security, maintenance, appraisal, transfer, use, utilization, supervision and return.
The bill adopts the concept of non-conviction based forfeiture (NCBF) which allows the court to confiscate assets of a criminal nature, even when no conviction has been obtained in relation to criminal conduct.
The asset forfeiture bill is not without criticism, the foremost challenge being the tug of war between the corruption eradication agenda versus the supremacy of human rights. In addition, the potential for political intervention in the judicial process also needs to be heeded. These various concerns must be responded to by compiling norms that close the loophole for political intervention by involving various stakeholders.
Long road to an asset forfeiture bill
The asset forfeiture bill has passed through a long journey, spanning two two-term administrations. It was proposed during the presidency of Susilo Bambang Yudhoyono (SBY) and into the era of President Joko Widodo. The bill was drawn up in 2008 and included in the National Legislation Program (Prolegnas) priority list in the same year. In November 2010, the bill was discussed by ministries/agencies that included the Law and Human Rights Ministry, Finance Ministry, Financial Transaction Reports and Analysis Center (PPATK), Administrative and Bureaucratic Reform Ministry, Attorney General’s Office, National Police, State Secretariat, as well as the University of Indonesia’s Law Faculty. The following year, on December 12, 2011 to be precise, the draft of the bill was officially submitted to the president by the Law and Human Rights minister.
In the following years, it was redesignated “Confiscation of Assets Related to Alleged Crimes” Bill. During President SBY’s second term it was included again in Prolegnas 2010-14 and in Prolegnas 2014 priority list near the end of the SBY administration. During Jokowi’s first-term administration, the bill was listed again in Prolegnas 2015-19 but not on a priority list. It was not until the second term of Jokowi administration, in 2022 to be exact, that the bill made it to Prolegnas 2023 priority list, two years before the end of Jokowi’s second term. On the website of National Law Development Agency (BPHN), the public can see the 2012 and 2015 versions of the asset forfeiture bill.
On July 14, 2021, the Coordinating Political, Legal and Security Affairs Ministry submitted the bill to Law and Human Rights Ministry. Currently, the bill is pending Presidential Letter (Surpres) to be submitted to the House for joint deliberation.
If we look at the discussion process of the bill, it seems like it was going nowhere, especially from the point of view of the government as the initiator. There was no significant progress since 2008, even though it has been included in Prolegnas. There was no further follow-up in the form of discussions between the legislative and executive branch. Its inclusion in Prolegnas 2023 priority list has strategic significance and gave impetus for corruption eradication efforts in Indonesia. There are a number of reasons why it has strategic value this time around:
1. Establishment of more consistent, systemic and holistic corruption eradication systems. The bill represents a concrete effort to recover state assets that were lost to corrupt practices. In addition, it can become a deterrent to corruption.
2. The momentum to prove Jokowi administration’s anti-corruption commitment amid the decline of Indonesia’s Corruption Perception Index (CPI) as well as negative public sentiment following the passage of Law 19/2019 which amended Law 30/2002 on the Corruption Eradication Commission (KPK).
3. Create a positive legacy for the Jokowi administration, through fulfillment of public aspirations, especially amid the constant revelations of ostentatious display of wealth by public officials recently.
Read: KPK: Sum of bribery at Railways Directorate reaches Rp14.5b
The momentum for deliberation and ratification of the asset forfeiture bill is only available in 2023 because in 2024 the practical political agenda in an election year will certainly drain the energy and distract the attention of the House and the government. Therefore, the bill has become a litmus test to assess the commitment and performance of the House and the government amid sharp criticism from the public toward other pieces of legislation including the Job Creation Law, KPK Law, IKN (New Administrative Capital) Law and others.
By kick-starting the deliberation of the asset forfeiture bill, the House and the government will have the momentum to properly implement procedures for legislative deliberation as mandated by Law 12/2011 on the drafting of laws and regulations by encouraging meaningful participation which meets three aspects – the right to be heard, the right to consideration and the right to explanation. This meaningful participation should manifest in all stages of the legislative process, from bill to law. Not only that, meaningful participation should be given to communities who are directly affected or those who share concern for this bill. (Ferdian Andi)