Amien Sunaryadi: Criminalization of Corruption Without Mens Rea Risks Creating Legal Uncertainty 

JAKARTA - Former Deputy Chairman of the Corruption Eradication Commission (KPK) for the period 2003-2007 Amien Sunaryadi said that the imposition of criminal corruption for state-owned company officials could not solely be based on the calculation of state losses, but must prove the existence of evil intent (mens rea).

This was conveyed by Amien when he was a witness in the trial of alleged corruption in the management of crude oil at the Corruption Court in Jakarta, Thursday, February 5.

The defendants in the cluster, including former Director of Feedstock and Product Optimization KPI, Sani Dinar Saifuddin; former President Director of PIS, Yoki Firnandi; and VP Feedstock Management KPI, Agus Purwono.

According to Amien, the approach to law enforcement that only relies on state losses risks causing excessive fear and caution among decision makers and creating legal uncertainty.

"The use of the article to the detriment of state finances, in my opinion, cannot eradicate corruption in Indonesia. Most of the implementation is carried out without regard to whether there is mens rea," said Amien, who is also the former Chairman of the SKK Migas period 2014-2018 in his testimony.

He explained that proving evil intent was an important element in the prosecution of corruption cases. "If it is not proven that there is mens rea, yes, it should be released," he said.

Amien said that business, managerial, or administrative decisions could not be drawn into the criminal realm. Moreover, if no personal interests, kickbacks, or conflicts of interest are found.

"The prosecution depends very much on the existence of mens rea. Bribery and kickbacks are forms of mens rea. Business, managerial, or administrative decisions if there is no mens rea cannot be brought to criminal prosecution," he said.

Amien assessed that in the case of alleged corruption in crude oil management, there was no strong evidence or testimony regarding the flow of money to the defendants' personal accounts from PT Pertamina (Persero). The trial is considered to discuss more about the financial losses of the state.

Amien also reminded the systemic impact of criminalizing policies that only rely on the calculation of state losses. According to him, this approach can trigger excessive fear among decision makers in the energy sector.

"As a result, oil and gas exploration activities in Indonesia are not going well, oil reserves are declining, and we have to import in large quantities. The trigger is the fear of being accused of harming the country if drilling does not produce oil," he said.

For information, in this case a number of defendants are accused of deliberately conditioning the production of the Banyu Urip oil refinery to be excessive or experiencing production excesses. This condition was then used as a basis for exporting oil in the 2020-2021 period which was suspected of harming the state.

However, in his statement, Amien stated that the conditioning of the data on the excess of Banyu Urip crude oil was not correct. The exports that occurred were referred to as business decisions as a consequence of the COVID-19 pandemic in 2020-2021.

He said that one communication alone was not enough to conclude that there was evil intent. "In my opinion, it cannot be said to be mens rea. Forensic investigations must be carried out comprehensively," he concluded.