Reverse burden of proof or reverse onus is a famous new term in Indonesia and usually used in the context of corruption eradication. A reverse onus (Omkering van het Bewijslat) said as a new pattern of proof because it means that the burden of proof is on the defendant. It is defendant whose the duty to prove that he/she is not committing a criminal act. Typically, this provision concerns a shift in burden onto a defendant in either a criminal offence or tort claim. However, this essay will only focusing its critics on reverse onus implementation on criminal proceedings. This essay is made because of my concern in exagerrated media news about the effectivity of reverse onus in foreign country. Here are the reasons why reverse onus is improper to be applied in Indonesia:
Reverse Onus is Highly Susceptible for Human Rights Violation
To proof an accusation is the duty of the prosecutor, not the defendant. Generally, the defendant in the proceedings will bear no legal burden at all in relation to the essential ingredients of the offence. The reasoning behind this is that all persons are entitled to a fair trial where the presumption of innocence is a fundamental right. It would be unfair to expect a person accused of a crime to disprove the accusation, with the result that if he fails to do so he faces conviction and punishment. Every human has the the right of fair trial, especially the defendants. Indonesian law said in the Criminal Procedural Law Act “Suspect or defendant is not burdened with the liability of proof burden” It shows that Indonesian law applied the presumption of innocence principle, especially in the rules of evidence. Indonesian laws also adopt another several principles regarding defendant’s rights of fair trial, such as the non self incrimination principle and beyond the reasonable doubt principle. Moreover, there is a right of the the defendant to remain silent. We also cannot deny that the burden on the prosecution in a criminal case requires a standard of proof that is ‘beyond reasonable doubt’.
The supporters of reverse onus claimed that to overcome the extraordinary crimes like corruption, money laundrying, narcotics, or organized crime need the extraordinary measures too. But in my opinion, even in the “holy mission” of corruption eradication or other extraordinary crime, due process of law is important to make sure that defendant’s rights is guaranteed. There are too much risks to implement a system which is highly susceptible for human rights violation in a country where the law enforcers don’t fully understand and respect the human rights.
There is No Proof of Effectiveness of Reverse Onus From Foreign Countries
Until this day, there is only few countries had applied the reverse onus system in criminal proceedings. In America and UK, reverse onus had been seen as a violation of defendant’s right of privilege against self discrimination as well as the constitutions itself. However, in very small number of cases reverse onus was applied, but only in tort claims in order to regain national assets, not in criminal proceedings. Reverse onus in criminal proceedings had only been used in few cases, such as Attorney General Of Hong Kong v Lee Kwang Kut and Attorney General of Hong Kong v Hui Kin Hong. In the later day, the judgment of the Privy Council delivered by Lord Woolf in Attorney-General of Hong Kong v. Lee Kwong-kut  A.C. 951 strongly suggests that reverse onus cannot be applied.
Critics also came from South Africa, in S v Zuma and Others (supra), the Constitutional Court had to decide on whether the presumption contained in section 217(1)(b)(ii) of the Criminal Procedure Act 51 of 1977, requiring an accused to prove that a confession was not freely and voluntarily made, violated the right to a fair trial as provided for in terms of sections 25(2), 25(3)(c) and 25(3)(d) of the Constitution of the Republic of South Africa Act 200 of 1993. In the end, The court held that the common law rules in respect to the burden of proving that a confession was made freely and voluntarily were an integral and essential part of the right to remain silent after arrest, the right not to be compelled to make a confession and the right not to be a compellable witness against oneself. A reversal of the onus of proof in these circumstances undermined all these rights and thus violated the right to a fair trial of an accused. Another critic came from Viscount Sankey, judge from England. Viscount Sankey’s ‘golden thread’ speech in Woolmington v DPP  AC 462 is one of the most celebrated passages in English criminal law: ‘No matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained.”
The Constitutional Court of South Africa also found that the State had not been able to show that the use of the ordinary common law rules relating to the burden of proof would make it impossible, unduly burdensome or impair the administration of justice, for the State to discharge the onus of proof as normally required in terms of the common law by proving that a confession was freely and voluntarily made. The statements above prove that the countries has ever applied a reverse onus can not even prove the effectiveness of this method. So, in my opinion, implementing reverse onus is an irresponsible action, especially when reverse onus is highly susceptible for defendant’s rights violation.
Form of Despair
In Indonesia, reverse onus said to be a solution for corruption eradication. I must admit corruption has been a ultimate constraint for Indonesia to achieve its goals as a big nation. Corruption level in Indonesia is relatively high. According to Transparency International, Corruption Perception Index score for Indonesia in 2010 is 2,8. This score is worse than neighbour countries such as Singapore (9,3), Brunei (5.5), Malaysia (4.4), and Thailand (3.5). Corruption which has become a widespread infection for this country and made the people frustate about it. So they’re trying nearly everything to eliminate this infection. I’m a corruption hater and I have a dream that someday Indonesia will be corruption free, but I don’t think reverse onus is the definite answer for corruption problem. Reverse onus was made because of prosecutor’s knowledge limitation in economics and etc in proofing corruption cases. In my opinion, it will be better to increase prosecutor skills and knowledges rather than implementing reverse onus. The reasons is clear and has been written above. Reverse onus is highly susceptible for defendant’s rights violation and there is no evidence of reverse onus effectiveness in reducing corruptions. So, I think that desperate move (reverse onus) shall not be implemented in Indonesia.
 Rufianus Hotmaulana, Perlindungan Terhadap Hak-Hak Tersangka/Terdakwa atas Penerapan Beban Pembuktian Terbalik, Paper on Reverse Onus Forum Group Discussion held by Indonesian Police Headquaters, March 10th 2011, Borobudur Hotel, Jakarta.
 According to Indonesian Criminal Procedural Law Act No. 8 of 1981, art 137.
Indonesia, Criminal Procedural Law Act, Act No. 8 of 1981, art 66.
 This principle is also represented in 1999 Human Rights Act art 18 and International Covenant of Civil and Political Rights art 14 par (2).
 The legal burden of proof in any proceedings relates to particular facts in issue.
 Judgments – Regina v. Director of Public Prosecutions Ex Parte Kebeline and Others (On Appeal From a Divisional Court of The Queens Bench Division), http://www.publications.parliament.uk/pa/ld199899/ldjudgmt/jd991028/kabel-2.htm accessed on 3/18/2011 12:41
 GK Goldswain, The Application And Constitutionality Of The So Called “Reverse” Onus Of Proof Provisions And Presumptions In The Income Tax Act: The Revenue’s Unfair Advantage, Meditari Accountancy Research Vol. 17 No. 2, 2009 : 63-64.
 Spencer, Burden and Standard of Proof; Presumptions, page 9. http://www.oup.com/uk/orc/bin/qanda/sample_chapters/spencer_ch02.pdf
 Ibid, GK Goldswain, page 64