The injustice of U.S. Dept of Justice

The US law on civil forfeiture threatens and violates the most common constitutional rights afforded to citizens in most democratic countries with a constitution.

Jason Leong, New Straits Times

RECENTLY, the United States Department of Justice (DoJ) announced the filing of civil forfeiture complaints seeking the forfeiture and recovery of about US$540 million (RM2.3 billion) in assets obtained with money allegedly misappropriated from 1Malaysia Development Bhd (1MDB).

This was in addition to the US$4 billion civil forfeiture proceedings filed last year.

What is missing from these proceedings is the criminal charge or charges against the perpetrator or perpetrators of the alleged crimes.

The comments made here are not about the facts of the case related to the civil forfeiture proceedings by DoJ against assets obtained with funds allegedly misappropriated from 1MDB, but rather, the focus here is on the injustice created by civil forfeiture laws, which is perpetrated by DoJ.

These civil forfeiture proceedings contravene basic criminal law that a person is presumed innocent until proven guilty beyond reasonable doubt: the presumption of innocence.

In reality, this law carries the presumption of guilt until proven innocent.

It is exactly the opposite of how most modern justice system should work: your possessions are presumed guilty and you have to prove innocence.

Civil forfeiture rests on the idea that the property itself, not the owner, has violated the law.

It  is based on a legal fiction that the property itself is guilty of a crime.

Under this fiction, a proceeding is brought in rem, or against the property itself, instead of in personam, or against the owner.

Since it is based on a legal fiction, its resultant consequences become ridiculous in that property can be guilty of a crime and thereby forfeited to the state regardless of whether any individual person is ever arrested, charged with, and much less convicted of, a crime related to that property.

It goes against legal logic and rational principles of jurisprudence because things or property cannot think, act or harbour criminal intention.

As the accused is an item of property, not a person, the property owner has no right to legal counsel and becomes a third-party claimant.

If owners cannot afford the legal costs to plead that their property is innocent, too bad.

The US law on civil forfeiture threatens and violates the most common constitutional rights afforded to citizens in most democratic countries with a constitution.

It allows DoJ to take a person’s home, properties, business, car, cash or other assets on the mere suspicion that it is connected to criminal activity, and without ever arresting, charging or even convicting that person with a crime.

Such a law is repugnant in most civilised societies and it is shocking that such a law exists in the US, a country that is supposed to recognise and hold dear rights to private property and due process of law.

US federal laws also allow forfeiture revenue to go into a newly created fund called Assets Forfeiture Fund, controlled by federal law enforcement.

As a result, federal forfeiture revenue can go back to the very agencies charged with enforcing the law, giving them a financial stake in forfeiture efforts.

State and local agencies can also participate in forfeiture with the feds and receive a cut of the revenue through the benign-sounding equitable-sharing programme.

Under this self-funding mechanism, the US government’s use of forfeiture has grown exponentially.

This practice of giving law enforcement agencies a financial stake in forfeitures by awarding them some, if not all, of the proceeds is legally and morally wrong.

Such financial incentive creates a conflict of interest resulting in the violation of basic due-process requirement of impartiality, which is the rule against bias.

Impartiality in the administration of justice is a bedrock principle of any good legal system.

No one should lose property without being convicted of a crime and law enforcement agencies should not profit from taking people’s property without ever proving a crime has been committed.

This is a fundamental principle and therein lies the injustice perpetrated by DoJ against 1MDB and its related parties.