Observer Proposes Asset Forfeiture as a Standalone Legal Regime

Legal and development observer Shri Hardjuno Wiwoho has proposed that the mechanism for Non-Conviction Based (NCB) Asset Forfeiture be positioned as a standalone, independent legal regime. He considers this step crucial for the state to have an effective instrument for recovering the proceeds of crime without violating citizens’ constitutional rights.

Hardjuno defended this idea during a closed session of the Doctoral Programme at the Postgraduate School of Universitas Airlangga (Unair), Surabaya, on Wednesday (15/7). He successfully defended his dissertation entitled ‘The Principle of Legal Certainty in the Acceleration of Legal Reform on Non-Conviction Based Asset Forfeiture’.

‘The Asset Forfeiture Bill should not merely pursue effectiveness. If legal certainty is weak, the regulation could actually create new problems,’ Hardjuno said in a statement on Wednesday (15/7).

Hardjuno outlined one of the four main ideas in his dissertation, namely the urgency of clarifying the legal standing of the NCB Asset Forfeiture mechanism. To date, asset forfeiture regulations remain mired in public debate over whether they fall under criminal law, civil law, or state administrative law.

According to him, clarity of legal standing as a separate regime would facilitate legal certainty in court proceedings, standards of valid evidence, and the clarity of objection mechanisms. ‘Asset forfeiture must be effective in recovering losses from crime, but state authority must also be controlled. It must be clear when assets can be frozen, what the standard of proof is, and how asset owners can exercise their right to object,’ Hardjuno explained.

In his research, Hardjuno also proposed the application of the Presumptio Iustae Causa principle, or the presumption of validity, regarding administrative decisions to freeze assets by the state. This principle ensures that a freezing order remains legally binding to prevent criminal assets from being transferred or concealed, while still providing room for the asset owner to challenge it in court if they disagree.

He also reminded the government not to simply copy the asset forfeiture laws of other countries, such as the United States, Singapore, or Thailand. Any regulation eventually passed by the House of Representatives must be adaptive and aligned with the Indonesian constitution. ‘Asset owners must still be given the space to prove that their wealth comes from legitimate sources. Thus, the effectiveness of law enforcement and the protection of citizens’ rights must be placed in balance,’ he stressed.