{"id":5643,"date":"2025-08-01T09:00:59","date_gmt":"2025-08-01T09:00:59","guid":{"rendered":"https:\/\/cipg.or.id\/?post_type=blog_article&p=5643"},"modified":"2025-10-22T03:30:00","modified_gmt":"2025-10-22T03:30:00","slug":"policy-reasoning-before-the-court","status":"publish","type":"blog_article","link":"https:\/\/cpig.arip.web.id\/id\/blog_article\/policy-reasoning-before-the-court\/","title":{"rendered":"Policy Reasoning Before the Court"},"content":{"rendered":"

This article was first published in\u00a0Kompas<\/a> on 1 August 2025 and has been translated using AI.<\/p>\n

 <\/p>\n

\"\"<\/p>\n

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Even though he has received an abolition, the case of Tom Lembong remains important as a public lesson, especially when policy logic confronts the legal interpretations of the court.<\/span><\/i><\/p>\n

 <\/p>\n

On July 18, 2025, the Corruption Court sentenced Thomas T Lembong, former Minister of Trade, to 4.5 years in prison for the import policy of 105,000 tons of raw sugar in 2015.<\/span><\/p>\n

The policy was implemented to stabilize supply and prices when national production is unevenly sufficient. There is no evidence that Tom received gratification or enriched himself.<\/span><\/p>\n

In fact, in the ruling, the court acknowledged that Tom acted without personal motives. However, because he was deemed to have violated administrative procedures and “caused state losses,” Tom was still found guilty and sentenced.<\/span><\/p>\n

On July 31, 2025, President Prabowo Subianto, with the approval of the DPR, granted amnesty (removal of criminal charges) to Tom. Many welcomed this decision positively, although some viewed it merely as a strategy to gain public sympathy or a political maneuver.<\/span><\/p>\n

 <\/p>\n

How to understand this situation?<\/b><\/p>\n

Even though an abolition has been granted, Tom’s case remains important as a public lesson, especially when policy logic confronts the legal interpretations of the court.<\/span><\/p>\n

This decision marks a new chapter in the relationship between policy and law in Indonesia\u2014where legitimate public policies in the context of state needs can be penalized as if they were crimes. There has been a shift: from a space of rational debate based on arguments and data to an arena of punishment based on narrow legal interpretations.<\/span><\/p>\n

The question is: should public officials who create policies to address real issues now be prepared to face imprisonment if the results do not meet expectations?<\/span><\/p>\n

If this case ends with an abolition and this precedent is left unexamined, the consequences will be serious for governance. This is not merely about punishment for one individual, but rather about the courage of the bureaucracy to make strategic decisions. If left unchecked, the rationale of policy will gradually die: the ability to weigh, choose, and act amidst uncertainty\u2014which is precisely a requirement for sound governance.<\/span><\/p>\n

 <\/p>\n

Case background<\/strong><\/p>\n

The policy used to ensnare Tom is not without basis. It was officially adopted through the instrument of the Ministry of Trade to maintain the stability of the national sugar supply and prices. At that time, domestic consumption was around 2.12 million tons per year, while domestic production, although appearing to be in aggregate surplus, faced distribution and quality imbalances at the regional level.<\/span><\/p>\n

In this situation, the private sector decided to import 105,000 tons of raw sugar as a measure to maintain buffer stocks and stabilize prices. This policy is not new. Indonesia has long relied on imports to fill supply gaps in strategic commodities.<\/span><\/p>\n

However, the decision was later challenged by law because it was deemed to have violated procedures and caused Rp 578 billion in state losses. This figure was calculated based on the difference between import prices and the benchmark price and potential state revenue, not actual losses. In fact, this was purely a hypothetical loss calculation.<\/span><\/p>\n

Furthermore, in the ruling, the judge acknowledged that Tom did not gain any personal benefit, and the policy was made in his capacity as a public official. The losses constructed from assumptions were used as the basis for the punishment, disregarding the context of the policy, the objectives of market intervention, and the fundamental principle that public policies often need to be implemented before risks become a reality.<\/span><\/p>\n

The legal logic in this case blurs the lines between administrative errors, policy decisions, and criminal acts. In a healthy government, policies always have a space for discretion, especially in emergency situations or when ideal options are unavailable. If every discretion is treated as a criminal offense, the entire decision-making process that involves risk will turn into a legal minefield.<\/span><\/p>\n

In this context, it’s not just the bureaucracy’s courage to make policies that is at risk, but also the policy’s rationale. Robert Behn (1995) argues that risk-averse accountability encourages bureaucracies to play it safe, avoid innovation, and let problems fester for fear of being blamed.<\/span><\/p>\n

This is also emphasized by the OECD (2018) which warns of the danger of “criminalizing honest policy errors” because it paralyzes the state’s capacity to learn from mistakes and act quickly in emergency situations.<\/span><\/p>\n

Even more problematic, the calculation of “state losses” that formed the basis of the verdict was speculative, not factual. No public funds were actually lost or misused. This hypothetical loss approach has long been criticized, as state losses in a criminal context must be real and measurable. Indonesia Corruption Watch (ICW) noted that a quantitative approach that ignores the policy process and the intentions of officials has the potential to undermine substantive justice.<\/span><\/p>\n

Various policy literature, such as that written by Paul \u2019t Hart and Karen Tindall (2009), also distinguishes policy fiasco from criminal acts: not all bad policy outcomes are subject to punishment. If the law cannot distinguish between \u201cwrongful intent\u201d and \u201cwrongful consequences of systemic complexity,\u201d we are not upholding justice, but stifling the state\u2019s ability to act.<\/span><\/p>\n

 <\/p>\n

The death of policy reason<\/b><\/p>\n

Those who understand public policy know that there are no black-and-white policies, completely right or wrong. Policies always emerge from a series of considerations with data that is never complete, limited resources, time pressures, and political demands.<\/span><\/p>\n

Therefore, the quality of public policy is measured not by the perfection of its results, but by the ability of policymakers to weigh trade-offs and choose the option most likely to yield optimal benefits under limited conditions. The policy process is about managing uncertainty, not avoiding it (Pearson and Crewe, 2002).<\/span><\/p>\n

When policies are judged solely on their outcomes, especially with narrow, legalistic criteria, the fundamental logic of policy is distorted. Why? Every policy, no matter how well-crafted, inevitably has unintended consequences. This is a classic principle dating back to Merton’s writing about the phenomenon of unanticipated consequences of purposive action (1936).<\/span><\/p>\n

In government, these consequences are not necessarily mistakes, but rather an inevitable part of the complexity of social and economic systems. Sunstein (2005) emphasizes that in policymaking, especially in situations requiring caution, unintended consequences are natural and should be managed, not punished. Therefore, if they begin to be treated as legal offenses, we are heading towards an irrational regime, where fear dominates reason.<\/span><\/p>\n

 <\/p>\n

The consequences are serious. First, there will no longer be a safe space for policy innovation. Every new policy, especially a transformative one, inevitably challenges the status quo and carries risks. If risk is equated with legal wrongdoing, public officials will choose to remain silent and inaction.<\/span><\/p>\n

Second, it creates policy paralysis in the bureaucracy: policymakers prefer to remain silent or follow procedures mechanically without substance, to avoid potential criminalization. This is called technocratic defensiveness, when policy actors are more concerned with protecting themselves than solving problems (Fischer and Forester, 1993).<\/span><\/p>\n

Three, the demise of technocratic leadership. Those who are competent and have integrity will be reluctant to take strategic positions in the public sector if every policy can be brought to court.<\/span><\/p>\n

What remains? Policymakers who only play it safe: taking no risks, making no substantive decisions, and not changing the situation. In the long term, the state loses its ability to think strategically and the public loses trust.<\/span><\/p>\n

 <\/p>\n

Implications<\/b><\/p>\n

If there were no abolition, the verdict against Tom would set a precedent that intimidates the bureaucracy. This is because what is being built is a regime of fear: where every policy\u2014no matter how reasonable and well-intentioned\u2014can be ensnared by law if the results do not meet expectations.<\/span><\/p>\n

In this situation, public officials will be more afraid of being wrong than motivated to be right. This creates an administrative chilling effect: the bureaucracy freezes not because it doesn’t know, but because it doesn’t dare (Hood, 2010).<\/span><\/p>\n

The criminalization of policies also paralyzes decision-making (Lipsky, 1980)\u2014from the operational level to the strategic level. Technocrat officials will avoid making decisions that have significant impacts, opting to be implementers of regulations rather than agents of change. They are only skilled at surviving, not leading. As a result, the state becomes on autopilot\u2014moving aimlessly, living without a vision.<\/span><\/p>\n

In addition, structural damage: the legitimacy of leadership is eroded, and the regeneration of technocracy is stalled. In the long term, the best talents are lost because the system prefers to punish courage rather than provide space for integrity.<\/span><\/p>\n

More concerning is the imbalanced relationship between the executive and the judiciary. When all public policies can be tested through legal interpretations that disregard context and complexity, the policy-making process becomes subject to procedural legal mechanisms: dry, superficial, and detached from reality. As a result, the state is no longer a space for policy deliberation, but rather a field for the punishment of technocrats.<\/span><\/p>\n

 <\/p>\n

What should we do?<\/b><\/p>\n

Do not let this case pass without action. Moving forward, the state must be urged to take a firm and rational stance to rescue public policy reasoning from the confines of procedural legalism that blinds.<\/span><\/p>\n

First, clearly distinguish between maladministration, policy failures, and acts of corruption. There needs to be a context-based policy evaluation mechanism that emphasizes accountability and learning, rather than mere indiscriminate punishment.<\/span><\/p>\n

Second, the judicial system must have the capacity to understand the policy process. Law enforcement officials must not only be knowledgeable about the law but also possess policy literacy. Without this, the court becomes an arena for the slaughter of policy logic by narrow and procedural legal interpretations.<\/span><\/p>\n

And most importantly, rebuilding courage in the midst of fear. For technocrats and young professionals who are beginning to hesitate to enter or remain in the public sphere due to cases like this, I just want to say: do not leave. This country needs you. Precisely because the space is becoming increasingly narrow and perhaps frightening, your presence\u2014sane, honest, and brave\u2014becomes even more important.<\/span><\/p>\n

We cannot entrust this nation solely to those who are untouchable. We need individuals who, despite knowing the risks, still choose to act in the interest of the public.<\/span><\/p>\n

Ultimately, the verdict against Tom Lembong is not just an injustice to one man, but a betrayal of the principles of common sense in government.<\/span><\/p>\n

We witness how the law has lost its wisdom, and the state has momentarily lost its stance on courage. Although this has now been corrected through abolition, this stance must not cease to apply solely to this case.<\/span><\/p>\n

When officials are punished not for stealing, but for thinking and acting, what is actually being punished is the courage itself. If this is allowed to continue, this country will be led by those who have never tried, never thought, and never taken risks.<\/span><\/p>\n

Policies will no longer be born from reason and partisanship, but from fear and helplessness.<\/span><\/p>","protected":false},"featured_media":5644,"parent":0,"comment_status":"closed","ping_status":"closed","template":"","meta":{"_acf_changed":false},"categories":[316],"tags":[211],"test_type":[40],"class_list":["post-5643","blog_article","type-blog_article","status-publish","has-post-thumbnail","hentry","category-blog-and-article","tag-yanuar-nugroho","test_type-information-social-change"],"acf":[],"yoast_head":"\nPolicy Reasoning Before the Court - Centre for Innovation Policy and Governance (CIPG)<\/title>\n<meta name=\"description\" content=\"Even though he has received an abolition, the case of Tom Lembong remains important as a public lesson, especially when policy logic confronts the legal interpretations of the court.\" \/>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/cpig.arip.web.id\/id\/blog_article\/policy-reasoning-before-the-court\/\" \/>\n<meta property=\"og:locale\" content=\"id_ID\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Policy Reasoning Before the Court - 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