The Fiction of State Loss: Uncertainty, Assumptive Calculation, and the Collapse of Fair Trial in Corruption Prosecutions -By Fransiscus Nanga Roka

Corruption deserves punishment. It skinches ordinary citizens, corrupts institutions and certainly mocks one of the principal planks in the capitalist promise. However, the war against corruption becomes perilous by rewarding accusation over evidence. That is not when justice continues to be done. It is being staged.

A particularly worrisome consequence is how “state loss” is often used in corruption prosecutions. Too often, the purported financial injury to the state is presented as if it were an established and self-evident proposition that but for certain conduct, there would be no such harm whatsoever. The number dons a mask of science as it enters the courtroom. But especially behind that mask, there is often ambiguity, caution and systemic prejudice.

That should frighten anyone who believes that criminal law is intended to punish demonstrated wrongdoing, as opposed to certainty manufactured by bureaucratic fiat.

A defendant can be deprived of his liberty where an audit body or financial expert prefers this method of calculation over that, chooses this benchmark as opposed to the other and utilizes presumes in favor one factor over another. But courts regularly treat these calculations as neutral truths rather than just contestable constructions. What we get is a bizarrely mishaped trial: the prosecution shows up with an number which has already been sanctified by institutional authority; while the defense struggles, not so much against the accusation itself but its almost hallowed status of its methodological.

This is not just a defect in the technology. It is a failure of fair trial.

A person must be convicted of a crime only when the evidence shows that it is beyond any reasonable doubt. If such speculative reasoning forms the core of an accusation on which state loss in fact hinges, that principle is meaningless; it isnít something with which someone who faces claims for notice by court could realistically test or compare and refute. Without adequate space for the defense to contest (a) assumptions, (b) variables, and/or © accounting framework or one alternative method ignored by auditors; “equality of arms” is mere icing on the judicial cake.

What heightens this concern is the modern obsession with numbers. Numbers look objective. They calm public anger. They provide public prosecutors with a nice headline and governments with a politically beneficial yarn: the state was wronged, damages quantified, payers identified. And numbers are also especially able lying little bastards. When a prediction is broken into hard currency, it takes on a false sense of truth. A hypothesis becomes a fact. A methodology becomes a verdict.

Injustice now also operates, that is not crudely but mathematically.

To question assumptive state-loss calculations is not to condone corruption. It is to defend the most fundamental claim of the rule of law: no one should be convicted on evidence they cannot genuinely challenge. Supervised, opaque calculations by corrupt authorities that depend on a weak and incompetent judicial system is not justice at all. That is weak justice disguising itself with technical speak.

Audit institutions are not infallible. Their methods are not sacred. Never treat their conclusions as self-fulfilling criminal fact. In a genuine fair-trial system, audit findings is but one piece of evidence that can be subject to violent assault and methodologically compared and judicial scepticism. More than avoid, a courtroom has to really test official claims; not just ratify them.

In the absence of that line, anti corruption trials become little more than dubious spectacles wrapped in certainty and smug self-congratulations.

And the harm is not limited to just individual defendants. When courts adopt state-loss estimates based on assumptions as sufficient to sustain a sentence, they help create an environment where exercise of state power can turn disputed meaning and belief into criminal fact. Perhaps the theory behind that today is corruption defendants, who are so easy to vilify. It can then be deployed wherever the state favours conviction over evidence tomorrow.

Forensic fiction is far too important to the struggle against corruption. Public outrage cannot replace evidence. The audit authority cannot replace due process. Assumptions cannot replace facts.

A legal system is only integrity and proves it not when the accused are punished, but when there is insistence that they be punished in accordance with the law. If “state loss” is created by nontransparent and unassailable calculation, the problem becomes more than corruption.

It is a matter of whether the courtroom belongs to justice or arithmetic for power instead.

Fransiscus Nanga Roka

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