Legal Literacy - The verdict of the Central Jakarta District Court against Thomas Trikasih Lembong, often known as Tom Lembong — which imposed a prison sentence because he was found guilty in the sugar import case, reopens the discussion about the limits of criminalization in public policy. In the verdict read on July 18, 2025, the court sentenced the former Minister of Trade to four years and six months in prison. The judge stated that Lembong did not enjoy personal gain and did not receive a single rupiah from the state losses incurred, but still declared him guilty because he was considered negligent in the import permit policy. This verdict once again reveals a latent problem in the Indonesian legal system: the blurring of the lines between administrative errors and criminal acts of corruption. In various forums, I often hear the same narrative: if an official who does not receive a penny of personal gain can still be imprisoned for allegedly causing state losses, then what exactly distinguishes between administrative errors and corruption crimes? As someone who has long been involved in public law issues, I am not surprised. I have long believed that cases involving procurement of goods and services, or strategic distribution policies such as imports, are always at the intersection of three legal regimes: public law, private law, and criminal law. At that point, the most fatal potential for confusion often occurs.

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.

Abuse vs. Misuse of Power

Criminal law is the harshest instrument in the legal system. Its use should be limited only to crimes that have a conscious and systematic intent to harm. In enforcing corruption crimes, caution should be even higher. Every element must be fully met: the act, the intent, and the consequences. Unfortunately, in many cases we observe, public officials are not punished for robbing the state, but for making decisions that turn out to have economic consequences. This is dangerous. First, because it opens up space for the criminalization of bureaucratic decisions. Second, because it creates the wrong deterrent effect. In classical administrative law, two important concepts are known: abuse of power and misuse of power. Both can result in state losses, but have very different meanings and legal consequences. Abuse of power is the conscious abuse of power with malicious intent. The official knows he is deviating and indeed aims to deviate. Meanwhile, misuse of power is an error in the use of authority or a procedural deviation that is not accompanied by malicious intent. Simply put, only abuse deserves to be processed criminally. Misuse, on the other hand, is the domain of administrative guidance. When these two things are not distinguished, public officials who act in good faith but make procedural errors can be considered corrupt. This is clearly unfair and creates a dangerous disincentive in the state's decision-making ecosystem.

A Law That Can Differentiate

Criminal law should be the last resort. Administrative violations should be addressed through bureaucratic correction and accountability mechanisms, not directly brought to the Corruption Court. Dragging every mistake into the criminal realm will not build a clean government. On the contrary, we create a paranoid state, a stagnant bureaucracy, and a law that loses its morality. We do not tolerate corruption, but we also must not allow the law to lose its mind. The rule of law is not only marked by the spirit to punish, but also by the ability to distinguish. Not all mistakes are crimes. Not all state losses are born from deviant intentions. Criminal law must be ultimum remedium, not the first instrument in assessing every policy violation. For that, a strict separation between abuse and misuse of power needs to be re-emphasized, both in law enforcement practices and in public awareness. We need a system that is firm against corruption, but fair to officials who make decisions in good faith. Without that, the law will lose its spirit, and the bureaucracy will lose its courage.