Dualism in Determining State Financial Losses Harms Legal Certainty, Administrative Law Experts Urge Technical Regulation Harmonization

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FORMOSA NEWS - Cirebon - The determination of state financial losses in corruption cases has once again sparked an interpretive clash between the Supreme Audit Board (BPK) and the Attorney General's Office. Three administrative law scholars—Ferdy Herdiawan from Universitas Muhammadiyah Kuningan, alongside Arthur Kusuma Atmaja Manurung and Tri Purnama Efendi from Universitas Swadaya Gunung Jati—conducted a comprehensive study in 2026 to unravel this legal uncertainty. The findings uncover the root causes of the interpretive tension following Constitutional Court Decision Number 28/PUU-XXIV/2026 and offer a regulatory harmonization solution that could safeguard the effectiveness of corruption prosecution in Indonesia.

Background of the Institutional Authority Conflict

The controversy over which institution holds the legitimate authority to calculate and declare state financial losses has plagued corruption prosecution in Indonesia for over two decades. This issue extends far beyond technical accounting; it touches the core of administrative law regarding the legality and boundaries of state authority.

In early 2026, the Constitutional Court issued Decision Number 28/PUU-XXIV/2026 on February 9, 2026. In its legal considerations, the Court affirmed that the constitutional mandate to examine and declare state financial losses rests exclusively with the BPK under Article 23E paragraph (1) of the 1945 Constitution.

However, responding to the ruling, the Attorney General's Office issued Circular Letter Number B-1391/F/Fjp/04/2026 on April 20, 2026. The circular asserted that state loss calculations are not limited to the BPK but remain legally valid when conducted by the Financial and Development Supervisory Agency (BPKP), the Government Internal Supervisory Apparatus (APIP), or certified public accountants. This conflicting stance between state organs has led to significant legal uncertainty during the evidentiary stage of corruption trials.

Summary of Research Methodology

This study employs a normative (doctrinal) legal research method, treating law as a system of norms, principles, and doctrines. The researchers combined three primary analytical approaches:

• Statute Approach: Analyzing the hierarchical norm alignment between the 1945 Constitution, the Anti-Corruption Law, the BPK Law, and related implementing regulations.
• Case Approach: Examining the ratio decidendi of Constitutional Court Decision Number 28/PUU-XXIV/2026, Decision Number 31/PUU-X/2012, the Attorney General's Circular Letter, and Supreme Court Circular Letter Number 2 of 2024.
• Conceptual Approach: Evaluating the issue through administrative law doctrines, particularly the sources of authority (attribution, delegation, and mandate) and the legal standing of policy rules (policy rule/beleidsregel).

Key Research Findings

The study highlighted several crucial findings explaining the causes and impacts of this legal dualism:

1. Divergent Sources of Authority: The BPK holds constitutional attributive authority directly from Article 23E of the 1945 Constitution. Conversely, the BPKP and internal supervisory agencies derive their auditing functions from sub-statutory executive regulations (Presidential Decisions and Government Regulations).
2. Failure to Distinguish "Declaring" from "Calculating": Legal practice has routinely conflated the technical activity of calculating losses with the legal act of declaring or establishing state financial losses.
3. Structural Gap in the Constitutional Court Ruling: The operative verdict (dictum) of Decision Number 28/PUU-XXIV/2026 rejected the petition, leaving the statutory text unchanged. Because the affirmation of BPK's authority was placed solely in the legal considerations, it left room for the prosecution to adopt a different interpretation based on Decision Number 31/PUU-X/2012 and practical considerations.
4. Limited Legal Standing of Circular Letters: The Attorney General's Circular Letter constitutes an internal policy rule (beleidsregel). It sits outside the statutory hierarchy and lacks general binding force to override the Constitutional Court's constitutional interpretations.
5. Empirical Prosecution Realities: Data reveals that approximately 92.4 percent of corruption cases handled by the prosecution between 2024 and May 2026 relied on audits by the BPKP or APIP rather than the BPK, largely due to BPK's extensive investigative audit backlogs (averaging 120 working days).

Implications and Public Policy Recommendations

This interpretive dualism compromises defendants' fundamental rights to fair legal certainty as guaranteed by Article 28D paragraph (1) of the 1945 Constitution. If loss determinations stem from agencies whose authority is questionable, criminal indictments risk being overturned in court.

To resolve this deadlock, the researchers advocate for a multi-layered functional division embedded in generally binding technical regulations:

• BPK acts as the sole holder of attributive authority to declare or establish final state financial losses.
• BPKP, APIP, and Certified Accountants perform supporting functions to calculate losses technically, with findings subject to validation.
• Trial Judges remain the ultimate arbiters in determining the existence and validity of state losses pursuant to Article 183 of the Criminal Procedure Code (KUHAP).

Author Profiles

• Ferdy Herdiawan, S.H., M.H. – Lecturer and Administrative Law Researcher at Universitas Muhammadiyah Kuningan.
• Arthur Kusuma Atmaja Manurung, S.H., M.H. – Academic and Constitutional/Administrative Law Researcher at Universitas Swadaya Gunung Jati.
• Tri Purnama Efendi, S.H., M.H. – Academic and Constitutional/Administrative Law Researcher at Universitas Swadaya Gunung Jati.

Research Source: Herdiawan, F., Manurung, A. K. A., & Efendi, T. P. (2026). An Administrative Law Review: Dualism in the Interpretation and Authority to Determine State Financial Losses between the Attorney General's Office and the Supreme Audit Board Following Constitutional Court Decision Number 28/PUU-XXIV/2026. Indonesian Journal of Advanced Research (IJAR), Vol. 5, No. 9, pp. 1645-1658. DOI: https://doi.org/10.55927/ijar.v5i9.17179

https://journal.formosapublisher.org/index.php/ijar