Criminalizing Governance: How Public Policy Errors Are Recast as Corruption -By Fransiscus Nanga Roka

While corruption was once defined in terms of bribes, embezzlement or intentional malfeasance for many developing democracies this is no longer true. It is now even wider to encompass failed policies, bureaucratic errors, contentious discretion and maybe something as unintended consequence of state action. This is where the enforcement of anti-corruption crosses a line that stops defending governance and starts waging war on it.

The result is a hazardous perversion of the law: poor political judgment becomes actual bad faith, policy failure become criminal intent and public disaster automatically narrated as evidence of corruption. When that logic sets in, the distinction between illegal and mistake disappears. It no longer matters, to the state, whether an official acted with mens rea or for personal gain in dishonest purpose. It touches only on whether controversy, loss or political embarrassment followed that decision. In that milieu, prosecution is simpler than analysis.

This is not the triumph of accountability. It is governance that has been criminalized.

Public policy is not an exact science behind the datapoints it draws. Governments are forced to make decisions whilst facing uncertainty, a lack of data, pressure on the fiscal front and political urgency. Procurement can fail. Subsidies can miss their targets. Emergency measures can produce waste. Industrial policy can misfire. To reiterate, the way we design a budget can produce losses whether or not there is any corruption at play. Hopefully, in a serious legal ordering those consequences bring about administrative review and institutional correction and policy evaluation. They activate handcuffs in a punitive state.

That shift is terrible because governing necessarily involves discretion. But officials need to make decisions among the imperfect, assess risk and act under pressure. If every controversial choice can be recast as corruption, rational officials will never make a decision again in the first place. They’ll drag up, defer, dodge and duck behind procedural paralysis. Fear replaces judgment. Bureaucracy becomes a survival game. It is no longer the most competent official who signed nothing that constitutes the safest one.

This is how states go weak for the gold in the name of cleanliness

Even more profound is the legal damage. Corruption is a moral and criminal category that is based on the notion of purpose, abuse, or illegal advantage. In contrast, administrative law is concerned with error, excess of power and procedural flaws as well as bad governance. This distinction is important because not every public act that harms the citizens constitutes a crime, and not every state loss indicates corruption. When prosecutors work to limit that distinction, criminal law begins to eat away at the territory intended for policy. This is where retrospect masquerades as evidence and effect becomes the standin for intent in a courtroom

That is profoundly unjust. Such a policy failure might have been rightfully criticized, reversed and even received the twice-impeached presidents removal from office. However, criminal conviction takes a lot more than ineptitude, and much more still then prickly politics or wretched outcomes. It necessitates proof of malicious intent. In the absence of that threshold, anti-corruption law morphs into a retrospective punishment doctrine: if this policy went wrong, somebody needs to go to jail. That might assuage the public fury, but it acts to obliterate legal principle.

This distortion is, however, politically enticing. Labeling a policy failure as “corruption” packs an emotional punch. It sounds morally clear. This enables governments, prosecutors and commentators to simplify complicated administrative issues into straightforward dramas of guilt. However, this simplicity is also where the danger lies. Whenever every bureaucratic error is transformed into a crime, the law becomes not an instrument of justice but one of theatrical blame.

But long-term the result is cowardice at an institutional level. The natural behaviour of public officials is to govern defensively not constructively. Innovation dies first. Emergency responsiveness follows. Development slows. Strategic choices are avoided lest this results in a loss that can then be framed as corruption at some future time. The result is not good government, but it becomes deadened government, a civil service so terrified of being prosecuted that it cannot govern at all.

We also incur a constitutional cost. Criminal law is the most coercive form of weapon that the state has in its arsenal. The serious use of this must be tempered, limited and perhaps at times matched with intellectual honesty. If it is used to penalize policy discretion without an evidential showing of corrupt intent, the state has ceased its role in enforcing legality. It is enforcing fear. Such a system does not bolster democracy, but bores it from the inside out.

Real anti-corruption enforcement remains indispensable. Those officials who embezzle, extort, collude with contractors to fix prices and abuse their office abusing it for pecuniary advantage should be prosecuted without apology. However, this machinery loses its moral clarity when it is used to combat policy error, administrative confusion or business risk instead. It stops differentiating between the corrupt official and just an imperfect decision-maker. That is not rigor. That is the prosecutorial power of lazy law.

Corruption and governance, evil and error, criminal intent versus policy failure, a mature republic has to have some ability to discern such differences. If it can’t maintain those divides, we will get no cleaner government. It produces terror, a frozen bureaucracy and an inept justice system too dull to distinguish theft from blunder.

This is the true danger of criminalizing governance; it not only punishes an individual but threatens to kill a state.

Fransiscus Nanga Roka

Faculty of Law University 17 August 1945 Surabaya Indonesia