By Laksamana Sukardi
President Prabowo’s recent decision to grant Abolition to former Trade Minister Tom Lembong and Rehabilitation to ASDP CEO Ira Puspadewi highlights a deeper structural problem in Indonesia’s legal system: the growing tendency to criminalize policy judgments—both in government and in business.
Lembong’s case involved a public-policy decision. Puspadewi’s case involved a corporate judgment call. Yet both were treated by law enforcement as criminal acts that allegedly produced “state losses.” This blurring of boundaries threatens not only governance but the country’s economic future.
Public Policy Is Not a Crime
Criminal law rests on two pillars: actus reus (a prohibited act) and mens rea (criminal intent). Policy decisions—right or wrong—rarely involve either. They are made under lawful authority to pursue institutional goals. Absent corrupt motives, personal gain, or willful harm, they should never be construed as criminal.
Allowing courts or prosecutors to punish the substance of policy choices effectively hands them veto power over the executive. It politicizes criminal justice and sidelines democratic mechanisms—elections, legislative oversight, public scrutiny—designed to evaluate policy. Comparative studies show that countries that criminalize policy judgments suffer bureaucratic paralysis, political instability, and declining trust in institutions. Officials learn to govern defensively—protecting themselves rather than the public interest.
The Dangerous Criminalization of Business Judgment
The same principle applies to business decisions. Corporate law around the world recognizes the business judgment rule: losses do not equal crimes. Markets fluctuate, supply chains break, technology evolves. A good-faith business decision that results in losses is a risk, not an offense.
Criminal liability arises only when there is fraud, corruption, undisclosed conflicts of interest, embezzlement, or manipulation—never when management simply misjudges market conditions. Without this distinction, corporations cannot innovate or take risks. Hindsight bias becomes the weapon of choice for prosecutors.
The Wrong Hands Calculating “Losses”
A particularly troubling trend is prosecutors calculating “state losses” or “corporate losses” themselves—using these figures to criminalize legitimate transactions. Commercial losses are shaped by valuation methods, market dynamics, accounting standards, and risk exposure. These are domains for professionals: accountants, auditors, certified valuers. Not prosecutors.
When law enforcement feels entitled to define business losses without financial discipline or global standards (such as IFRS or PSAK), “loss” becomes a matter of perception. This is not rule of law—it is rule by narrative. And it sends a chilling message to investors and executives: the real risk in doing business is not the market but prosecution.
A Line That Must Be Restored
Indonesia cannot build a dynamic economy under a cloud of legal uncertainty. Businesspeople must be free to take calculated risks. Public officials must be able to govern without fear of post-hoc criminalization.
A clear line must separate bad decisions from bad behavior.
The former belongs to the market and democratic accountability.
The latter belongs in court.
President Prabowo, the Supreme Court, and law-enforcement agencies must align their approach to ensure legal predictability—while maintaining a strong, focused fight against genuine corruption. Criminal law should target misconduct, not the honest exercise of judgment in public policy or business.
A nation that punishes judgment ultimately punishes progress.
