When Motives No Longer Matter

The main problem lies at the intersection of these legal regimes. In the public law system, officials have discretion. However, this discretion must adhere to principles, procedures, and accountability. Problems arise when the logic of criminal law is forced into a space that should be the administrative domain. In criminal law, especially in corruption cases which are classified as extraordinary crimes (extraordinary crime), proving malicious intent (mens rea) is an absolute requirement. Criminalization without proving deviant intent means criminalizing the consequences without measuring the perpetrator's motives. The verdict against Tom Lembong shows this symptom. There is no personal gain, no flow of funds into individual accounts, but he is still sentenced. If this becomes a general standard, then every economic policy that subsequently causes state losses—an element in the crime of corruption (tipikor)—can easily be used as a basis for criminalization, even without deviant motives. This phenomenon creates chilling effect within the bureaucracy. Many officials ultimately hesitate to make important decisions, not because they do not know what to do, but because they are afraid of being criminalized. In the context of public policies that demand a rapid response, such as food distribution or crisis management, this fear can be a major impediment to government effectiveness. Criminal law, if used carelessly, is no longer a tool of justice, but an instrument of fear. This is contrary to the basic principle of the rule of law.