Jakarta, IO – The policy of the Joko Widodo administration regarding alternatives or options in preparing (new) strategies in addition to carrying out criminal politics by reducing the weight and frequency of punishment should be commended.
Several reasons are cited here, to understand why the policy needs to be celebrated. First, the punishment/conviction of perpetrators of criminal acts, including corruption, does not significantly reduce the number of crimes. On the contrary, it increases the number of inmates in correctional facilities, resulting in an overcapacity of 200% in all prisons in Indonesia.
Second, the facts and data at the Prosecutor’s Office and the Corruption Eradication Commission (KPK) show a significant increase in the return of assets from corruption crimes, much higher than the negative impact of punishment.
Third, the new policy in eradicating corruption is in line with the provisions in the 2003 UN Anti-Corruption Convention, ratified by Law 7/2006. Article 3 of the 2003 UN Anti-Corruption Convention stated that proof of the element of state loss is not required as an element of corruption. Therefore, The Government’s new policy has an adequate reason for eradicating corruption, particularly if seen from the aspect of cooperative relations to eradicate corruption between member countries of the Convention.
Third the justifications for the Government’s new policy have commenced with the submission of the Bill on Forfeiture of Assets from Criminal Acts, which has been included as one of the Bills to be discussed in the 2023/2024 Priority National Legislation Program (Prolegnas). In the Asset Forfeiture Bill that has been proposed by the Government, the Government is currently preparing the four drafts of Government Regulations regarding the implementation of Law 1/2023 concerning the Criminal Code, which has been stipulated to take effect on January 1, 2026.
The reason behind the submission of the Asset Forfeiture Bills is that the development of criminal acts with the purpose of gaining economic benefits can potentially damage the order of the national economy and reduce the Government’s ability to realize people’s welfare. Therefore, there should be regulations on the forfeiture of assets from criminal acts. The current system and mechanisms regarding the confiscation of assets related to criminal acts are not yet capable of supporting just law enforcement efforts, so comprehensive, transparent and accountable regulations are needed.
The Asset Forfeiture Bill, drafted by the Government, Ministry of Law and Human Rights (2019), adheres to asset forfeiture based on Civil-Based Forfeiture, meaning that forfeiture of assets from criminal acts is not based on imposing punishment on the perpetrators. However, the Asset Forfeiture Bill does not entirely eliminate the authority to prosecute perpetrators of criminal acts.
Referring to the above points, it shows that the Asset Forfeiture Bill drafted by the Government uses two approaches: the in-rem forfeiture and in-personam forfeiture approaches. The Asset Forfeiture Bill regulates the types of criminal assets that can be confiscated, namely:
(1) Assets resulting from criminal acts or assets obtained directly or indirectly from criminal acts that have been gifted or converted into personal, other people’s or corporate assets in the form of capital, income or other economic benefits obtained from such assets,
(2) Assets that are known or reasonably suspected to be used or have been used to commit criminal acts, and
(3) Other assets that legally belong to the perpetrator of a crime as a substitute for assets that have been declared forfeited to the state.
In addition to the three types of assets from criminal acts that can be confiscated, there are also assets that are disproportionate to income or disproportionate to the source of additional wealth whose legal origin cannot be verified and are suspected to be related to criminal acts, as well as assets in the form of confiscated objects obtained from the proceeds of criminal acts or used to commit criminal acts.
The value of assets from criminal acts that can be forfeited, according to the Asset Forfeiture Bill, consists of:
a. Assets worth at least IDR 100,000,000, and
b. Assets related to criminal acts that are punishable by imprisonment of four years or more.
Forfeiture of special assets is carried out in the event that the suspect or defendant dies, flees, suffers from a permanent illness, is impossible to locate or is discharged from all legal charges.
Referring to the scope of the Asset Forfeiture Bill that the Government has prepared, the Government must possess minimum facilities and infrastructure, especially the Prosecutor’s Office and the KPK. The facilities and infrastructure include several points. First, the Family Registration Number must be designated to replace the Indonesian Identity Card that can be used in all matters, including in dealing with legal problems. Therefore, the Government can have big data of 270 million Indonesian citizens. This has become necessary because tracking the assets of someone who is suspected of committing a crime should constrict the movement of the perpetrator, in hiding his assets in any place or with any person.
Wherever they are and whoever is holding them, the assets must be found. Therefore, the person’s personal identity must be accurate, including the amount and type of assets.
In addition to the data accuracy issue of the personal identity of the owners of the assets suspected to be or the result of a criminal act, or which is used as a means of committing a criminal act, their privacy rights must also be protected, so as not to cross the line.
The second facility and infrastructure the Government must have is coordination and synchronization between ministries and agencies related to the citizens’ assets, particularly the assets of state administrators, including those with strategic functions within the Government.
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The third facility and infrastructure is the necessity to harmonize the Personal Data Protection Law and the laws and regulations regulating procedures for investigations, which focus on protecting the human rights of people in general and owners of assets whose income is suspected/alleged to be obtained from illegal income.
The fourth facility and infrastructure is a mutual assistance cooperation agreement in criminal matters and extradition as a means of increasing the efficiency and effectiveness of legal cooperation and law enforcement with other countries, be they in the same or different legal systems.
These four facilities and infrastructure are prerequisites before or after the enactment of the Asset Forfeiture Bill.