Policymakers Making Wrong Policies Not Punishable

 
Happy Rayna Stephany, Andin Aditya Rahman
 
Amidst the growing number of issues related to the ongoing Bank Century case, academics have been asked for their opinions regarding whether or not public policymakers are punishable by law if they are responsible for inappropriate measures or policies.
 
Dian Puji Simatupang, lecturer at the Faculty of Law Universitas Indonesia, asserts that generally a person cannot be convicted with respect to their involvement in determining a policy of a state administrative body even if he or she authorizes the wrong policy.
 
“That is not punishable,” stated Mr. Simatupang during a seminar in Jakarta last Tuesday.
 
Mr. Simatupang bases his view on a Supreme Court decision in 1966, which revoked criminal charges related to public policy making provided that three elements are satisfied.
 
First, the state must not suffer any financial losses; second, the entities involved did not unlawfully reap benefits; and, third, the policy was taken to protect the public interest or for public services.
 
Policymakers, however, can still be convicted if they issue policies with elements of bribery, menace, or deception. If these elements are proven to be part of the policy, legal sanctions and punishments may apply.
 
“It depends on the motivation. If during the process there were bribes, then that is punishable,” he affirmed.
 
Hikmahanto Juwana, law professor at Universitas Indonesia, echoed Mr. Simatupang’s opinion.
 
According to Mr. Juwana, public policy makers are not punishable by law as the domain of state administration must be differentiated with criminal law. Wrongful conduct in determining public policies cannot be equated to criminal acts under the criminal law.
 
He also asserts that state administrative law does not acknowledge criminal charges, which are typically replaced with oral and written warnings, as well as demotions or dishonorable discharges.
 
For policies that have a connection with corruptive elements, Mr. Juawana emphasized the necessity for the malicious intent of the entity that authorized the policy instead of focusing on the policy in question.
 
The professor cited the Bank Century case in order to prove his point, and explained that the policymakers in the Bank Century case cannot be punished if the necessary evil intent cannot be proven.
 
“Their malicious intent must be proven first. Are there motives to enrich oneself or others?” articulated Mr. Juwana.
 
(hot/kc)