By The Finance Team
The rehabilitation of the criminalization case against PT ASDP Indonesia Ferry (ASDP) by President Prabowo Subianto some time ago opened up a broader national conversation: that the state needs to have the courage to correct the misuse of legal instruments when assessing and punishing policy actions.
The ASDP case is not only about restoring the good name of one person or one institution, but about affirming a fundamental principle: policies that arise from corporate mandates and regulations should not be interpreted as crimes, unless there is clear evidence of malicious intent (mens rea) and personal gain.
This principle is becoming increasingly relevant in the context of changes to the national criminal law landscape. Starting January 2, 2026, Articles 603 and 604 of the National Criminal Code will come into full effect. This will have direct consequences for the way the state views and assesses policy actions, including in the banking sector.
The National Criminal Code emphasizes that criminalization of abuse of authority requires clear personal fault (mens rea), a clear causal relationship, and an orientation towards profit or despicable intent, not merely detrimental economic consequences.
This phenomenon is highly relevant to the problems currently plaguing the banking industry, especially regional banks. Recently, three regional development banks (BPD) were embroiled in a case involving PT Sri Rejeki Isman Tbk (Sritex) debtors and were charged with corruption. Public discourse has intensified.
Banks—which should operate based on the principles of risk management and prudential compliance—are being treated as if they were bureaucratic institutions that must always be “administratively correct.”
In reality, the banking world operates in a completely different manner: it is full of uncertainty, based on professional judgment, and subject to a very strict global regulatory regime.
The Point of Conflict: The Clash of Two Legal Regimes
This is where the point of conflict arises. Law enforcement officials (APH) assess the bank’s actions using the logic of “state losses” as defined in Articles 2 and 3 of the Anti-Corruption Law. Meanwhile, the bank carries out its business mandate in accordance with Basel III standards, POJK, prudential principles, and complex internal governance.
When these two logics collide, criminalization easily occurs. The problem is not merely a misreading, but rather a misguided legal paradigm. And, starting in 2026, this misguided paradigm will become even more problematic.
Articles 603 and 604 of the National Criminal Code systematically narrow the scope of policy criminalization, as they no longer use the consequence of loss as the sole basis for punishment, but instead place malicious intent and abuse of personal authority as key elements.
If law enforcement agencies continue to enforce Articles 2 and 3 of the Anti-Corruption Law using the old approach—which blurs the line between business risk and crime—there will be a serious normative conflict between the National Criminal Code and the Anti-Corruption Law, as well as a crisis of legal certainty for financial sector players.
Banking is Not Bureaucracy
Banks, especially regional banks, are often viewed as if they were government agencies. There is a perception that every credit decision that results in default automatically becomes a “loss to the state.” In fact, banks operate on the basic assumption that risk is an inherent part of business, not an anomaly that must be eliminated.
Basel III emphasizes that risk cannot be eliminated, only managed and absorbed through capital, liquidity, and risk discipline. This framework is then incorporated into banking laws and OJK regulations.
When banks extend credit to companies such as Sritex, they have certainly conducted an assessment beforehand. The assessment is based on the feasibility of the business and its prospects at the time the decision is made. There is no prudential norm that requires banks to predict global crises, geopolitical changes, or extraordinary market disruptions.
However, this business logic often collapses when law enforcement agencies view it through the lens of corruption: economic losses are interpreted as losses to the state, risk assessments are interpreted as irregularities, and bad loans are interpreted as criminal acts.
Consequences of the Enforcement of Articles 603–604 of the National Criminal Code on Articles 2–3 of the Anti-Corruption Law
This is where the major implications of the National Criminal Code become inevitable. Starting January 2, 2026, the enforcement of Articles 603 and 604 of the National Criminal Code will have three crucial consequences on the existence of Articles 2 and 3 of the Anti-Corruption Law.
First, the normative consequence. The National Criminal Code as a new codification of criminal law can strengthen the principle of individualization of guilt. This is inherently contrary to the practice of punishment based solely on consequences that has developed through Articles 2 and 3 of the Corruption Eradication Law. Without harmonization, Articles 2 and 3 risk being perceived as norms that are inconsistent with the spirit of the National Criminal Code, especially in cases of policy and business decisions.
Second, consequences for law enforcement practices. The burden of proof for law enforcement agencies will increase significantly. It will no longer be sufficient to prove that there has been a loss to the state; there must also be evidence of malicious intent (mens rea), abuse of personal authority, and personal gain or gain for a specific party. In the context of banking, this means that non-performing loans can no longer be automatically criminalized without evidence of manipulation, collusion, or fraud.
Third, the political consequences of anti-corruption laws. The state has implicitly shifted its approach from broad criminalization to legitimate policy protection. If this shift is not accompanied by an update to the interpretation of the Anti-Corruption Law, the result will not be a strengthening of anti-corruption efforts, but rather systemic tension between criminal law and business law.
Civil-Business Conflicts Forced to Become Criminal
The Anti-Corruption Law was actually designed to ensnare abuse of public office, not to punish corporate decisions born of business mechanisms. However, in the practice of the BPD case—which has the status of a regionally-owned enterprise (BUMD)—the logic of “regional financial losses” is often forced into the credit process.
In fact, BPD is not regional cash. BPD’s capital is corporate capital placed by shareholders, and its management is subject to the corporate governance regime, not the APBD management regime.
With the enactment of Articles 603 and 604 of the National Criminal Code, this error should no longer be maintained. Corporate losses without malicious intent are no longer sufficient grounds for criminal prosecution.
