Legal Reasoning on State Loss

PROPOSAL Luhut Binsar Pandjaitan, Chairman of the National Economic Council (DEN), proposed that the offense of state loss be abolished and not treated as a criminal offense, which quickly went viral and sparked a legal debate.

He later clarified his statement, asserting that financial losses to the state remain a component in the Anti-Corruption Law.

According to Luhut, DEN aims for allegations of corruption to be proven clearly and objectively. Corrupt individuals should not escape justice, while someone acting with good intentions should not be criminalized without basis.

The question is how to regulate state loss elements to avoid criminalizing policies made by state administrative officials or legitimate business decisions in state-owned enterprises (SOEs) without shielding abuses of authority that harm the state.

Vague Offense of State Loss

The debate surrounding financial loss to the state in corruption offenses should not be framed as a false choice: preserving the article would criminalize officials, while removing it would free up corrupt individuals.

The real issue is how the law distinguishes between loss resulting from legitimate risks and loss arising from the abuse of power.

In a legal state, state loss is significant but should not serve as a shortcut for proof. The loss figure must be explained and is not automatic evidence of corruption.

Conversely, not every bribe results in easily measurable losses to the state. Therefore, emphasizing only bribery is also insufficient.

Corruption eradication requires a formulation of offenses that encompasses various abuses of power, paired with proof standards that protect citizens' rights.

From a legal political perspective, the article on state loss should not be abolished but redefined more precisely.

Articles 2 and 3 of the Anti-Corruption Law, as well as Articles 603 and 604 of the Penal Code, should be applied by proving each element separately.

For instance, unlawful acts or abuse of authority, the perpetrator's error, causation, and actual losses must align with the offense’s formulation.

Losses arising from poor decisions do not automatically demonstrate corrupt intent. However, malicious intent (mens rea) should not be regarded as a chant demanding acknowledgment of wrongful intent.

In fact, malicious intent can be inferred from objective evidence, such as document fabrication, hidden conflicts of interest, illicit gains, or willful neglect of procedures for certain parties.

Legal Certainty

From the constitutional law perspective, this certainty is part of the rule of law principle and the protection of rights to fair legal processes.