The Criminalization of Uncertainty: A Human Rights Crisis in Corruption Adjudication -By Fransiscus Nanga Roka

When it comes to the global anti-corruption fight, governments prefer to position themselves as in a morally righteous Heavens. They talk about transparency, deterrence, and safeguarding the public purse. But what happens when the crusade against corruption is separated from any kind of legal background, such that it undermines the very bedrock of justice itself? Indonesia is now contending with that problem. A recent decision from the Mahkamah Konstitusi Republik Indonesia (Contituional Court) has laid bare a profound constitutional fault line in the country’s anti-corruption law: the term “state financial loss” which forms its core is ill defined, lacks proper procedure, and has no normal rules to follow. This issue is more than a mere technical flaw. It is a structural crisis. At the root of the problem lies a seemingly simple question: Who decides that the state has suffered a financial loss; and by what standards? In many functioning legal systems, this question has a simple answer. It stands on a firm basis of methodological transparency, institutional authority, and evidential rigor. In Indonesia, however, the law points vaguely to “audit results” without explaining what institution, process, or weight of evidence this entails. The BPK RI, the state audit body is often supposed to fill this role, but the legal framework does not always require its findings as the definitive or sole basis. This uncertainty is not harmless. It can be turned into a weapon. When “state loss” can be alleged at will, lacks any fixed institutional underpinning or standardized method of calculation, and is not clearly situated in procedural terms, then criminal law becomes adjustable. Adjustable criminal law is bad criminal law. It allows prosecutors to stretch the meaning, courts to fabricate standards, and the accused to be judged not in accordance with the law applied, but according to the whims of the public prosecutor.

This is a place for corruption to become criminalization gone overboard.

Third party vendors, for instance private entities under contract with government institutions? They don’t manage budgets, approve expenditures, or control the internal systems of a state. But the framework we have now drags them into corruption cases whenever a subsequent audit, sometimes rampant with errors and misjudgment, suggests that a deficit occurred.

What’s worse, at the time of investigation and indictment the “deficit” may not be yet evident. It could come later, arrived at by means unknown or beyond the control of the defendant. At that point the consequences to reputation are devastating, businesses collapse and the presumption of innocence is transformed into mere pretense. This is a punishment carried out on faith alone. Stigma placed but conviction lacking. A law that has lost its own certainty It is a system not only prone toward injustice but designed for it. The leading idea here is not peculiar to Indonesia at all. It is a fundamental tenet of international human rights law: the demand for legal certainty, the prohibition of vague criminal norms, and assurance due process. Both Article 11 of the Universal Declaration of Human Rights, and Article 15 International Covenant Civil Political Rights requires that criminal liability ought to be clearly defined for everyone. A legal system that bases criminal liability on an indistinct and ever changing concept of harm breaches the principles at its heart.

Defenders of our present way might argue that fighting nuanced corruption requires flexibility. But they misunderstand the very nature of law. Flexibility in investigation is one thing, but lack of precision law. The former strengthens justice; the latter demolishes it. History warns us: when criminal law departs from precision, it ceases being an instrument of justice and becomes instead an instrument for the exercise power.

The effects persist long after original case. Legal uncertainty sweeps through entire economy, paralyzing business. Companies compounded their scruples unwilling to participate in state run bids. Service personnel slowly disassociated from any official connections they held with the government. Official status came to mean avoiding taking decisions nobody could take issue with certainly it meant not encouraging fraud. Under cover of ‘ anti-corruption ‘, the government now poisons governance itself with this kind of behavior. This is not deterrence, it is paralysis.What’s more, responsibility for legal certainty is shifted from the legislature to the judges: from rules passed by a democratically elected parliament to individual interpretations made case by case. Judges are forced to redefine the boundaries of criminal liability in real time, since there is no clear and detailed guidance for them provided in legislation. The result is one of inconsistency, unpredictability and diminishing legitimacy.Not even the most long-suffering legal system can bear it forever.Today, Indonesia stands at a crossroads. Either it will remain on the present course, where ‘ state loss ‘ is an amorphous concept defined by auditors, prosecutors and courts without a consistent standard. Or it will reaffirm an elementary truth : criminal law cannot be founded on speculation, rather there must be certainty.This involves not weakening the fight against corruption but deepening its legal roots. It means defining with absolute precision who decides what constitutes state loss, hammering out the methods to be used with complete transparency, making sure that auditors enjoy both financial and political independence, and reinstating the central role of judges in determining evidence they do not justcomply with what they have been given.To sum it all up, we need to understand that the fight against corruption must not come at the cost of justice. Society is not protected by a law that jails people out of uncertainty. Instead of protecting society, when uncertainty is used as the basis for convicting individuals under law, law erodes it instead .And when the state gains the power to penalize without hardship being substantiated, not only is corruption a positive menace but law itself becomes one.

Fransiscus Nanga Roka

Faculty of Law University 17 August 1945 Surabaya Indonesia