The corruption trial underway in Jakarta of Nadiem Makarim, Indonesia’s former Minister of Education, Culture, Research and Technology and co-founder of Gojek (Indonesia’s version of Uber), reveals two major problems with Indonesia’s anti-corruption regime.

The first is legal–technical. The criminal offences created by Indonesia’s Anti-Corruption Law (Law 31 of 1999, as amended by Law 20 of 2001) are extraordinarily broadly defined. They allow a person to be convicted, without corrupt intent, if they caused “state loss[es]” (kerugian negara). Usually, prosecutors need only point to a cost blowout on a government project, or show the defendant did not choose the lowest tender for a government procurement (even if the tender was poor quality, or the tenderer could not have delivered), or merely that a cheaper way existed to deliver a project. This is a very long way from what most people would consider “corrupt”.

The second problem is political, and flows from the first: the broad definition of corruption makes it relatively easy to concoct charges. For example, under former president Joko Widodo (or Jokowi, 2014-2024) corruption charges were often deployed against political figures who had fallen foul of him. Critics said Jokowi used such charges to ensure he got his way, or even just to intimidate the political class generally. Jokowi could do this, they said, because his oversight of appointments to law enforcement agencies allowed him to influence appointees’ decisions to investigate and prosecute.

Of course, it is not hard to find genuine instances of corrupt behaviour by senior Indonesian politicians—but it is just as easy to use the loose definition of corruption to target charges arbitrarily. Towards the end of his rule, two of Jokowi’s opponents were prosecuted in circumstances most observers saw as blatantly political. One was his former trade minister turned public critic, Thomas Lembong, who was charged with “state-loss” corruption over his approval of sugar imports almost a decade earlier. The other was Hasto Kristiyanto, the Secretary-general of former president Megawati Soekarnoputri’s PDI-P, the party that had just expelled Jokowi for disloyalty.

So tenuous and controversial were their eventual convictions, that incoming President Prabowo Subianto eventually granted them Lembong abolition and Hasto amnesty, both forms of clemency, saying this was intended to ‘foster national reconciliation’.

The Nadiem trial

For many Indonesians, Nadiem’s trial is starting to look like another one of these controversial corruption cases. Because it is difficult to see what he did wrong, many assume some political ploy must be behind it—although different theories circulate about what that ploy might be.

One thing is clear, however: Nadiem, a business figure without a strong political party or network to support him, has been targeted aggressively.

On 13 May, prosecutors in the Jakarta Corruption Court sought an 18-year sentence, a fine of Rp1 billion (US$56,000) and a further payment of Rp5.68 trillion ($320 million). If Nadiem fails to pay the latter, he faces an additional nine years’ imprisonment. Outside court, he made the point that he would be unable to pay, which meant he would serve 27 years—more than some murderers or terrorists. Prominent lawyer Todung Mulya Lubis has called the prosecutorial demand “insane”.

To justify their demands, prosecutors allege that the procurement of ChromeOS laptops and Chrome Device Management (CDM) software for Indonesian schools between 2020 and 2022, during Nadiem’s tenure as minister, caused state losses of Rp2.18 trillion (US$123 million). Of that figure, Rp1.56 trillion is attributed to overpricing of the laptops and Rp621.39 billion to CDM software, said to have been unnecessary. They also claim that the laptops are not suitable for their stated purpose.

Prosecutors also allege that Nadiem personally received Rp809.59 billion in funds traced through PT Aplikasi Karya Anak Bangsa, the then-parent company of Gojek, originating in a Google investment in the platform. Evidence of this seems weak, and contradicts testimony given by Google executives at the trial. In any case, as we explain later, there are also big problems with the reliability and objectivity of the audits that prosecutors rely on to prove the state losses they claim Nadiem caused.

The “rubber articles”

The ultimate source of these problems are the provisions under which Makarim has been charged: Articles 2(1) and 3 of the Anti-Corruption Law. Most Indonesian corruption defendants are tried under these provisions.

Article 2(1) provides that corruption occurs where a person “unlawfully enriches themselves or another person or a corporation in a way that damages the state finances or economy”. The penalty is imprisonment of four to twenty years, or for life, together with a fine of Rp200 million to Rp1 billion. Article 2(2) does permit the death penalty in “certain circumstances”, a category the Elucidation (i.e. the official explanatory memorandum that forms part of the Law) limits to specified emergencies and to repeat offending, but no court has yet imposed it for corruption.

Article 2(1) is often called a pasal karet—a “rubber article”—because almost anything causing state loss falls within its definition. The crux here is “unlawful act”, which Indonesian courts have, particularly in the last two decades, interpreted to include not only acts that are strictly illegal, but also that can be deemed merely “inappropriate”—including based on social or moral values existing in the community. Whether an act is inappropriate is usually judged in retrospect —that is, at trial—and it often appears that judges assume that any act causing state loss will be automatically be deemed inappropriate. This means that if prosecutors prove state loss they will also prove an unlawful act in one fell swoop.

As we explain below, the Constitutional Court has tried to impose a re-interpretation that allows only illegal acts (as opposed to merely inappropriate ones) to underpin prosecutions under Article 2(1a). However, the Supreme Court has employed technical legal arguments to ignore the Constitutional Court’s rulings and keep the broad definition in place, allowing it to now be deployed against Nadiem.

Article 3 provides that a person commits corruption where, “with the aim of enriching oneself, another person or a corporation”, they “misuse the authority, opportunities or means at their disposal because of their office, in a way that damages the state’s finances or economy”. The penalty is imprisonment of one to twenty years, or life, together with a fine of Rp50 million to Rp1 billion.

As mentioned, neither of the offences under Articles 2(1) and 3 require the prosecution to prove that the defendant acted dishonestly, and neither requires proof that the defendant personally benefited. Any form of conduct that somehow enriches “another person or a corporation” satisfies the enrichment element.

Constitutional Court adds guardrails

The Constitutional Court has interpreted Articles 2(1) and 3 in two important judgments, in which it sought to restrict the wide ambit of these provisions.

As mentioned, in  Decision 003/PUU-IV/2006, the court struck out the words in the Elucidation to Article 2(1) that expanded it to include conduct “contrary to unwritten community standards”. It held that the definition produced legal uncertainty, because what counted as “justice or social values existing in the community” varied across Indonesia’s regions and could not be predicted in advance by citizens. Legal certainty is a requirement of Article 28D(1) of the Constitution.

Then, in Decision 25/PUU-XIV/2016, the Court removed the word dapat—“could”—from the loss element of both Articles 2(1) and 3. Before the decision, the offences were complete even if conduct “could” damage state finances or the economy, so that the mere possibility of loss was sufficient. Since this decision, actual loss must be proved.

Both decisions were good ones, but their practical effect has been limited. The first decision invalidated only the Elucidation of Article 2(1), leaving the text intact. In subsequent rulings the Supreme Court treated the result as a “legal vacuum” (kekosongan hukum) and reverted to its own earlier jurisprudence that applied “unwritten community standards”, effectively ignoring the Constitutional Court and keeping the broad definition in place.

The Anti-Corruption Courts that try Articles 2 and 3 cases have followed the Supreme Court’s lead. In fact, it was on this basis that former minister Lembong was sentenced to four and a half years under Article 2(1) over sugar-import approvals even though no corrupt intention, kickback or personal benefit was proved.

Proving “state loss”

Article 10(1) of Law 15 of 2006 designates the independent Supreme Audit Board (Badan Pemeriksa Keuangan/BPK) as the body authorised to “assess and/or determine the amount of state losses”. In 2016, the Supreme Court (in circular letter SEMA 4 of 2016) confirmed that only BPK could “declare” state loss in corruption proceedings.

But then, in SEMA 2 of 2024, the court weakened that position by also allowing audits by the Finance and Development Supervisory Agency (Badan Pengawasan Keuangan dan Pembangunan/BPKP). The BPKP is part of the executive branch of government and is directly responsible to the president, who appoints and dismisses its head. The court now also allows findings by internal public service inspectorates, certified public accountants, and even trial judges to be accepted as a legal basis for a state loss determination. This has raised obvious questions about the impartiality of such determinations.

In February 2026, however, the Constitutional Court pushed back. In Decision 28/PUU-XXIV/2026, all nine judges held that BPK’s authority to declare state loss is constitutionally exclusive, flowing directly from Article 23E(1) of the Constitution. BPKP, internal inspectorates and certified accountants may still produce findings that are useful as supporting material, but only BPK can deliver the final determination. How the Anti-Corruption Courts will reconcile this decision with SEMA 2 of 2024 is now itself the subject of academic and judicial debate.

The problem became even worse on 20 April 2026, when the Deputy Attorney General for Special Crimes issued a circular letter instructing prosecutors that state-loss evidence from bodies other than the BPK remains acceptable, relying on an older Constitutional Court decision from 2012 that had allowed multiple agencies to calculate loss, rather than its February 2026 decision. Constitutional law scholars have described this as “constitutional disobedience” (pembangkangan konstitusi), arguing that the Attorney General’s Office cannot choose which Constitutional Court decision to follow but must follow the most recent one.

In Nadiem’s case, the state loss audit relied on by prosecutors was done by the BPKP, not the BPK. In testimony at trial, the BPKP auditor admitted that his findings were not derived from a market price survey but from the auditor’s own margin assumptions. These estimates were contradicted at trial, raising major questions about the reliability and integrity of the audit.

What now?

On 12 May 2026, the Anti-Corruption Court delivered its verdict against one of Nadiem’s co-defendants, the technology consultant Ibrahim Arief. The panel of judges acquitted Arief of the primary indictment under Article 2(1), finding that no kickbacks or financial benefit had been proved, but still convicted him under the subsidiary indictment under Article 3, relying on the broad definition to impose a four-year sentence and a Rp500 million fine. Two judges dissented, taking the view that Arief, as an external technology consultant, was never involved in the procurement decisions, and had received no kickback, his consultancy fees being legitimate remuneration rather than a benefit from the procurement.

According to Indonesia Corruption Watch, the Anti-Corruption Courts have, over many years, recorded conviction rates close to 95%. With Arief convicted, there must now be a high likelihood that Nadiem will be as well. If so, he will be the latest victim of the extraordinarily broad reading of Articles 2(1) and 3 that the Supreme Court and the Anti-Corruption Courts have insisted on.

There is still some hope this may change. The Constitutional Court has acknowledged that Articles 2(1) and 3 produce legal uncertainty: in December 2025, even as it rejected challenges to the constitutionality of the Articles from several corruption convicts in Cases 142/PUU-XXII/2024 and 161/PUU-XXII/2024, it expressly urged the DPR to reformulate the provisions. A fresh petition, Case 283/PUU-XXIII/2025, brought by a similarly convicted bank employee who is challenging the “benefiting another person or corporation” wording, is still on the court’s docket after a preliminary hearing in January 2026. If a future decision were to read down the broad state loss elements of these provisions, then other courts might then have to reconsider their previous intransigence on the issue.

However, time is not on Nadiem Makarim’s side. No further constitutional ruling appears imminent, and his final defence plea will be presented on 2 June. A judgment is expected shortly afterwards.