Presumed guilty: A juridical analysis of due process erosion in corruption cases involving indonesian state-owned enterprise executives

Abstract

This paper investigates the systemic phenomenon of “presumed guilty before proven guilty” that plagues executives of Indonesian State-Owned Enterprises (BUMNs), particularly in strategic sectors such as energy (Pertamina), aviation (Garuda Indonesia), and electricity (PLN). The issue stems from a deep juridical conflict between the constitutional and procedural guarantee of the presumption of innocence under the Criminal Procedure Code (KUHAP, Law No. 8 of 1981) and the expansive, deterrence-driven application of the Anti-Corruption Law (Law No. 31 of 1999 as amended by Law No. 20 of 2001). Through a juridical-normative methodology and comparative case study analysis, the paper demonstrates how the vague and overbroad phrasing of “may cause state financial loss” in the Anti-Corruption Law has been weaponized to criminalize legitimate, risk-based business decisions. Although the Business Judgment Rule (BJR) implicitly recognized in the Limited Liability Company Law (Law No. 40 of 2007), is designed to protect directors acting in good faith, it is routinely overridden by criminal law enforcement. The analysis of three landmark cases: Karen Agustiawan (Pertamina), Emirsyah Satar (Garuda), and Nur Pamudji (PLN), exposes inconsistent judicial reasoning, with only the Supreme Court’s 2017 Nur Pamudji ruling offering a clear demarcation between civil-commercial liability and criminal culpability. This legal uncertainty generates a profound chilling effect, inducing extreme risk aversion, stifling strategic innovation, and ultimately undermining BUMN performance and national economic resilience. The paper concludes with targeted recommendations: (1) for the judiciary to harmonize jurisprudence around the BJR and state loss doctrine; (2) for the legislature to amend ambiguous provisions in the Anti-Corruption Law; and (3) for BUMN boards to institutionalize rigorous, documented decision-making protocols as a legal safeguard.