Lessons For The Asset Confiscation Bill, The President And DPR Are Asked To Pay Attention To The Lawsuit On PUPN Perpu In The Constitutional Court

Legal observer, Hardjuno Wiwoho. (Photo: Special)

JAKARTA - Legal observer and anti-corruption activist Hardjuno Wiwoho called on President Prabowo Subianto and the Indonesian House of Representatives to pay thorough attention to the Constitutional Court (MK) session regarding the testing of Government Regulations in Lieu of Law Number 49 of 1960 concerning the State Receivables Affairs Committee or PUPN Perpu.

This lawsuit can be an initial mirror to test the extent to which the Indonesian legal system is able to distinguish between efforts to save state finances and potential abuse of power.

"I think the lawsuit regarding the PUPN Perpu needs to be observed. Moreover, the government and the DPR are discussing the Asset Confiscation Bill which also gives great authority to the government," Hardjuno said in his statement, Tuesday, June 17.

This PUPN Perpu judicial review lawsuit was filed by a citizen who is the owner of Bank Centris Internasional, Andri Tedjadharma. Andri is suing fundamental issues regarding the government's authority in debt collection and confiscation of assets.

At 10.30 WIB, Tuesday morning, the agenda for the trial is scheduled to hear witnesses from the government/PUPN.

Observing the minutes of the last Constitutional Court trial last week, Hardjuno said the main problem of the lawsuit was the weak supervision of the process of determining government obligors (receivables), including matters of documents and accounts that were allegedly invalid.

"This is crazy, the government, in this case PUPN, is accused of using a copy of the Supreme Court's decision, which is allegedly fake, which was used to determine Andri Tedjadharma owes Rp 4.5 trillion to the government. This is a reflection of the Asset Confiscation Bill which is of public concern," said Hardjuno.

Hardjuno's statement responded to the facts revealed in the Constitutional Court trial. Previously, in the trial some time ago, the applicant's expert, Maruarar Siahaan, a former constitutional judge, stated his surprise at two serious irregularities.

First, the account number at Bank Indonesia, which is suspected to not belong to Bank Centris Internasional, is still used as the basis for transactions and bills. Second, a copy of the Supreme Court's decision which was referred to as the legal basis for state bills, but allegedly never registered in the Supreme Court.

In his testimony in front of Chief Justice Suhartoyo, Maruarar called this a threat to fair legal certainty and said that the law could be a tool for trouble if it was not controlled in an accountable manner by the judicial system.

"So if it is true that there is a copy of the Supreme Court's decision which is used as the basis of the bill, but is then allegedly fake and this is used by the government to seize citizens' rights, then this is a serious problem in the context of legal certainty," explained Hardjuno.

"Similarly, if it is true that the transfer of funds to a bank account that is suspected to not belong to the party being billed, this shows the urgency of revamping our legal system before the Asset Confiscation Bill is passed," said Hardjuno.

Although he did not judge the contents of the lawsuit, Hardjuno emphasized that the government needed strong legal instruments to confiscate assets resulting from crime. However, this should not sacrifice the principles of justice and judicial accountability.

"The Asset Confiscation Bill must ensure due process, protection for third parties, as well as an open mechanism of objection and proof. Otherwise, power can lose its common sense," he said.

Hardjuno was previously known as one of the figures who encouraged the ratification of the Asset Confiscation Bill by emphasizing the importance of a legal mechanism that is transparent and subject to judicial supervision.

Therefore, Hardjuno hopes that the Constitutional Court's follow-up trial until the verdict becomes a national evaluative momentum.

"It's not about who won in the Constitutional Court. But this is an important momentum for the Government and the DPR, in order to re-evaluate the material in the Asset Confiscation Bill which prioritizes legal certainty and justice itself," he explained.

The lawsuit filed by Andri Tedjadharma, owner of Bank Centris Internasional, to the Constitutional Court targets the constitutionality of the PUPN Law, a 1960 legacy legal product that the government still uses in collecting state receivables.

According to Andri, several articles in the law open up loopholes for the government to collect unilaterally and without a fair legal process, violate the principles of legal certainty and protection of citizens' rights as guaranteed by the 1945 Constitution.

During the Constitutional Court's trial, it was revealed that a number of basic issues were at the core of Andri's lawsuit: First, a copy of the Supreme Court's decision which became the basis for the state to determine Andri as a debt person worth IDR 4.5 trillion allegedly invalid.

The Young Supreme Court Party officially stated that the appeal application that should have been based on the decision was never accepted or registered. In fact, the Chief Justice of the Constitutional Court Suhartoyo in the trial called this finding a "absurd mystery", because it reflected administrative chaos at the highest level of justice.

Second, in the financial transaction records, the funds that should have entered the official account of Bank Centris Internasional are allegedly transferred to another account called the Centris International Bank in the name of an individual who is not registered for clearing at Bank Indonesia.

The expert presented by the Petitioner called this practice a potential transaction engineering, and matched it to a manipulative act that led to serious violations in the state financial system.

Third, Andri has never signed personal guarantees or documents that admit personal debt, such as PKPS, MSAA, MRNIA, or APU.

According to corporate law experts, such personal responsibility cannot be imposed on controlling shareholders, unless there is evidence of a serious violation of the law. The doctrine of piercing the corporate Veil that allows the waiver of the company's legal entity was only introduced in Indonesia through the Limited Company Law in 1995, long after the PUPN Law was enacted.

Fourth, Bank Centris has actually handed over legal guarantees in the form of customer promotions and 452 hectares of land assets to Bank Indonesia. However, instead of executing the guarantee, PUPN immediately confiscated and auctioned off Andri's personal assets and his family. This is a step that is considered to violate the legal guarantee execution procedure (execution parameter).

Overall, this lawsuit questions whether the government has acted within the constitutional corridor when it collects debts from its citizens, or violates basic rights through legal mechanisms that are no longer relevant to the times.

Hardjuno said this lawsuit was becoming increasingly important because the government and the DPR are currently discussing the Asset Confiscation Bill. If the error in Andri's case is allowed, then the bill has the potential to give birth to unilateral powers that can confiscate assets without adequate judicial control.

"This is the reason why this lawsuit is not only related to one person, but concerns the future of legal justice in Indonesia," he concluded.