Observer: 'Illicit Enrichment' Cannot Be Arbitrarily Included in Asset Forfeiture Bill
Jakarta (ANTARA) - Public policy observer Trubuss Rahardiansah has warned of the need for caution when discussing the proposal to include ‘illicit enrichment’—unexplained wealth that cannot be reasonably justified—into the Asset Forfeiture Bill (RUU Perampasan Aset).
According to Trubus, this issue must be placed within the correct legal construction. This is because there is a fundamental difference between the mechanism of asset forfeiture and the creation of a new criminal offence.
“One of the substantive issues that needs to be clearly distinguished is illicit enrichment, or wealth increases that cannot be reasonably explained,” said the Professor from Trisakti University in a statement in Jakarta on Saturday.
He continued, “There is a push to include this issue simultaneously within the Asset Forfeiture Bill. However, we must be careful to distinguish between substantive criminal law and formal criminal law.”
According to him, the situation is different if illicit enrichment is intended to be formulated as a new criminal offence.
“If illicit enrichment is to be established as a new criminal offence subject to punishment, the issue falls within the realm of substantive criminal law. We are talking about which acts are declared criminal, who can be held accountable, the elements of the crime, and what sanctions may be imposed,” he explained.
Trubus noted that this distinction has direct consequences for the future implementation of the regulations. Misplacing the legal norm, he said, could lead to implementation problems later, especially regarding the burden of proof concerning the origin of an individual’s wealth.
“The state certainly has an interest in pursuing wealth derived from crime, but at the same time, the principles of the presumption of innocence, property rights, and due process of law must be maintained,” said Trubus.
In his view, legislators must first determine the appropriate legal construction, elements, evidentiary mechanisms, and the correct legal regime for its regulation.
“Therefore, including illicit enrichment should not be done simply because the term is thought to strengthen anti-corruption efforts. The legal construction, the elements to be regulated, the mechanism of proof, and the most appropriate legal regime must be determined first,” Trutbus said.
He also cautioned that the discussion of the Asset Forfeiture Bill should not be narrowed as if it only pertains to anti-corruption efforts.
“Corruption is certainly a very important context. However, the approach to asset recovery is fundamentally relevant to various crimes that generate large economic profits and cause systematic losses to the state and society,” he said.
Trubus mentioned that organised crime, narcotics, money laundering, human trafficking, and various economic crimes can also generate profits that persist even after the perpetrators have been sentenced.
Therefore, Trubus urged legislators to determine the characteristics of criminal offences and the relationship between assets and crimes that can serve as a basis for forfeiture.
“Consequently, the discussion regarding the scope of the Asset Forfeiture Bill should not be too narrow. What must be sought are the characteristics of the crime and the link between the asset and the crime that can justify forfeiture, with clear boundaries to ensure such authority is not applied arbitrarily,” he concluded.