Analysis of the application of articles 3H and 3Y of the State-Owned Enterprises Law after Law Number 16 of 2025 to corruption liability under the national criminal code

Law Number 1 of 2025 and Law Number 16 of 2025 amended Law Number 19 of 2003 on State-Owned Enterprises (the SOE Law). As amended by Law Number 16 of 2025, Article 3H attributes investment gains and losses to the Daya Anagata Nusantara Investment Management Agency (Danantara), while Article 3Y grants the Head of the SOE Regulatory Agency and Danantara’s organs and employees a business judgment rule (BJR) defence. SOE directors rely on a different basis, namely Article 9F of Law Number 1 of 2025. This normative legal study, using statutory, conceptual, and case approaches, examines these provisions after three changes: (i) Law Number 16 of 2025 deleted the clause declaring SOE officers not to be state officials and affirmed the Audit Board’s authority to audit SOEs; (ii) Articles 603 and 604 of the National Criminal Code replaced Articles 2(1) and 3 of the Anti-Corruption Law on 2 January 2026; and (iii) Constitutional Court Decision Number 123/PUU-XXIII/2025 reinterpreted Article 14 of the Anti-Corruption Law. Articles 3H and 4B do not automatically alter the status of separated state assets as part of the state finance regime, as interpreted in Constitutional Court Decisions Number 48/PUU-XI/2013 and 62/PUU-XI/2013; they govern the attribution and measurement of loss under a business paradigm (business judgement rules). Article 3Y is a defence, not an immunity. The prosecutor retains the burden of proof, and a fulfilled BJR either negates unlawfulness or operates as a justification under Article 35 of the Criminal Code. Negligence that defeats the defence results in civil and administrative, not criminal, liability because Articles 603 and 604 require intent. Case law shows that judges draw the BJR boundary at decision-making procedure, not at personal gain. Kata kunci: Business Judgment Rule; Danantara; Kerugian Keuangan Negara; Kriminalisasi Kebijakan; Tindak Pidana Korupsi