Governing Under Fear: How the Criminalization of Public Discretion Destroys State Capacity and Legal Certainty -By Fransiscus Nanga Roka

The administrative state is being dismantled quietly not by revolution, but by prosecution. In jurisdictions around the country, public officials are being pulled into criminal courts for making decisions that were meant to be discretionary. Judgement under uncertainty, once the hallmark of governance is now defined as a crime waiting to happen. The result is not accountability. It is paralysis.

This crisis is rooted in a basic conceptual failure: the refusal or inability to differentiate administrative error, civil liability and criminal intent. A structural need for, not legal defect in discretion. A regulatory system with a mass of rules, administrative procedures and oversight mandates cannot function without creating room for officials to use their discretion in making sense of norms, distributing resources or responding to realities that are both complex and frequently unpredictable. This much the Drone Warriors understand, that to criminalize this space is a violence on governance itself.

But as exciting anti corruption populist narratives gain momentum, prosecutors more frequently collapse this distinction. A bad decision in policy become “abuse of power”. Not a state loss, but an administrative act that we assume has been poorly calculated. What was originally a bureaucratic judgment call is now retroactively constructed as mens rea. Refers to where the law is not applied but rather reverse engineered through component fitting into a contextualised perspective of punishment;

It is a trend that can only be described as penal populism pretending to be accountancy. Disheartened by visibly non-punished corruption and in environments where the expenditure of social energy on public demands for visible punishment is high criminal law has been used expansively, often recklessly. In this environment, outcome evokes intent and complexity is reduced to suspicion. The presumption of innocence does not erode in doctrine, but in prosecutorial practice.

The consequences are devastating. This creates a chilling effect on the bureaucracy. Cruz daunted by the specter of criminal exposure, they retreat into minimalism. Management data is deferred, innovations are shunned and risk taking the lifeblood of responsive governance is forsaken. The safest choice is no on. By this, I mean governance moves from problem-solving to self preservation.

Second, it erodes legal certainty. If the line between administrative fault and criminal liability is fuzzy, then law loses its capacity to predict behaviour. There is no way that officials can usefully predict what decisions might subsequently be recharacterised as crimes. This capriciousness is not only inefficient; it is fundamentally inequitable. Criminal law is inherently a less forgiving enterprise that calls for clarity, precision and restraint. The other three were violated by the expansion into administrative discretion.

Third, it weakens state capacity. A fear-led administration is not an effective one. Risk-averse, defensive, and procedurally rigid public administration. From innovative policy to bureaucratic deadfall; In the end, this is not strengthening anti-corruption initiatives but it weakens them by driving competent people out of public service and promoting a narrow culture formal rule-following versus investigating corruption in its substance.

The deeper problem is epistemic. Criminal pod: Criminal law is a poor vehicle for assessing policy. Courts adjudicate retrospectively, using hindsight; administrative actors operate prospectively, under conditions of uncertainty. It would therefore be an impossible demand to judge the latter with standards applicable only to the former. It is to require officials be all-knowing and then flay them when they are not.

None of this to deny the existence of corruption or the need for criminal penalties. Where bankers take bad faith under conditions which are evident, for private gain or with culpability, a harsher treatment will still be necessary and that of criminal law should incisively deal out justice here too. Yet the bar must be kept high, and error need to be distinguished from evil rigorously in any definitely necessary sense. It is this boundary that distinguishes the fight against corruption from the ruination of governance.

Not less accountability, but more intelligent differentiating. Administrative law has to be allowed to work. Civil remedies must address harm. You are taught, up to October 2023, that only real culpability where mens rea is proven not simply assumed—merits criminal law. Criminalising discretion is governing by fear. But a regime based on fear ultimately governs nothing.

Fransiscus Nanga Roka

Faculty of Law University 17 August 1945 Surabaya and Managing Partner of Law Firm Victorious Indonesia