The interesting feature is that the judge in the BA case shifted the burden of proof to the defendant for the imposition of a punishment.

Therefore, apart from a 10-year imprisonment and a fine of Rp 250 million (US$28,032.4), the judge also ordered that the wealth of BA, allegedly derived from corruption worth Rp 61 billion and US$681,153, be confiscated for the state.

The verdict and consideration of the judge in the BA case were quite phenomenal for three reasons.

First, compared with the tax cases of Gayus, Eddi Setiadi, and four defendants (Roy Yuliandri, Muhammad Yazid, Dien Rajana M and Dedy Suwardi) in the case of the West Java Tax Office, the prison term for BA, also a former tax official, was the longest: 10 years.

Second, in the other tax cases above, the defendants were subjected to prison terms and fines, whereas in the BA case the defendant’s wealth was to be seized as well because the judicial panel doubted the origin of the assets claimed to have come from his business operations.

Third, BA was punished on the basis of the Corruption Eradication Law and the Money Laundering Law, and the judge in his verdict stated BA was found cumulatively in violation of Article 11 of the Corruption Eradication Law and Article 3 paragraph (1a) of the Money Laundering Law. Such provisions were not applied in the other tax cases, such as the case of Gayus, who was later found to possess wealth also nearing Rp 100 billion.

The judge was able to shift the burden of proof because the public prosecutor’s charges also included BA’s assets worth Rp 61 billion and US$681,153 allegedly originating in crime, which were claimed to have been invested in certain financial services and or business activities on his own behalf or in the name of some other party.

In court sessions, the judicial panel doubted BA’s explanation about the origin of his wealth. BA was considered incapable of convincing the panel for failing to substantially present documents of cooperation agreement and capital participation as well as evidence of profit transfer from his businesses.

In view of this, BA was regarded as failing to fulfill his burden of proof that the wealth he possessed had not originated in crime; or failing to prove that the assets he owned were proportional to his profits or sources of extra income, while BA was only an official and head of a tax office.

Indonesia’s Anticorruption Law has stipulated the burden-of-proof shifting procedure in a limited and balanced manner. The balanced nature suggests that the public prosecutor has the duty to substantiate his or her allegations, while the defendant is also obliged to verify his or her entire wealth and that of his or her spouse and children, as well as the assets of persons or corporations allegedly connected with the case under trial.

The verification can be used by the defendant to prove that he or she has not been involved in corruption so that the charges are not proven. The whole matter is clearly regulated in Article 37 and Article 37A of the Anticorruption Law (No.20/2001).

It’s interesting to note that the burden-of-proof shifting mechanism has not been much applied and in the BA case an important question has arisen because another media source said BA’s wealth was likely to reach over Rp 932.2 billion. So the question is why the prosecutor’s demand and charges only mentioned Rp 61 billion and US$681,153, thus limiting the confiscation to this amount only.

The same also happened to the Gayus case, with around Rp 100 billion revealed in the court trial, of which only Rp 28 billion was found to have come from certain sources. In the judge’s decision on the case, Gayus’ wealth was not to be seized for the state because the public prosecutor in fact made no such demand and charges.

What needs to be questioned about the increased wealth of Gayus allegedly from his authority abuse as tax inspector that escaped the prosecutor’s charges is: Was it due to negligence or done on purpose?

To make sure that shifting the burden of proof will later be effective, several measures should be adopted. First, the Public Official’s Wealth Report (LHKPN) system has to be improved and accessible.

For this purpose, the Corruption Eradication Commission (KPK) pursuant to Article 13a of Law No.30/2001 should not only be authorized to register and receive LHKPN.

It should also be delegated the authority owned by the Commission for Examination of Public Official’s Wealth (KPKPN), among others monitoring and clarifying the public official’s wealth, while taking the initiative to investigate not only the report but also the public official’s wealth based on indications of corruption, cronyism and nepotism (KKN) (as defined in Article 17 paragraph 2a of Law No.28/ 1999, now revoked).

Second, provisions on certain minimum amounts of transactions requiring the use of the system of banking and financial services are needed. The rules should apply to public officials as well as corporations and professional circles engaged in transactions.

This system will serve to track down those believed to undertake suspicious transactions and involved in KKN.

Third, the compilation of LHKPN should be mandatory and have direct effects on the system and implementation of remuneration payment, promotion and transfer of positions of public officials. In this way, a high degree of obedience will be achieved.

Fourth, it should be strictly stipulated that those who fail to submit true data of wealth in their LHKPN and later assets are found out other than those already reported, the assets in question can be subjected to “immediate” confiscation for the state.

In brief, shifting the burden of proof may serve as an effective law enforcement system to prove
the presence of corruption and at the same time “seize” the assets due to the state, but some requirements referred to above need to be promptly fulfilled.

The writer is a lecturer of law at Trisakti University, legal advisor to the Partnership for Good Governance, and senior partner of WSA Law Firm in Jakarta.

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