The Tension Between Property Rights and Substantive Justice in the Transition to Non-Conviction-Based Forfeiture in Indonesia: A Legal Philosophical Perspective Based on John Rawls’s Theory of Justice

Abstract

This study aims to analyze the philosophical legitimacy of NCB Forfeiture based on John Rawls’s theory of distributive justice and to examine the paradigm shift from conviction-based forfeiture to NCB Forfeiture in the relationship between procedural and substantive justice. This research employs a normative legal method with a prescriptive-philosophical orientation, using statutory, conceptual, and legal philosophical approaches. The asset seizure case involving Fadia Arafiq is used as an illustration to examine issues concerning the proof of the origin of wealth and the protection of property rights. The findings indicate that NCB Forfeiture can obtain conditional philosophical legitimacy when it is intended to address distributive injustice, is based on a demonstrable connection between the assets and criminal offenses, and is implemented with adequate safeguards for individual rights. Rawls’s difference principle cannot be used to justify sacrificing basic liberties for the sake of collective economic interests. The shift toward NCB Forfeiture also does not imply replacing procedural justice with substantive justice; rather, it requires the establishment of fair procedures as a prerequisite for achieving equitable asset recovery.