In keeping with international convention, Indonesia’s fledgling constitutional court ruled that the package of anti-terror laws pushed through in the weeks after the 2002 Bali nightclub bombings cannot be applied retrospectively to crimes committed before it was enacted.
The court’s 5-4 decision came in response to an appeal by Masykur Abdul Kadir, who was sentenced to 15 years in prison for providing logistical support to the Bali bombers.
The 23 July verdict, just the second the court has made since being reconstituted early this year, could be used to overturn the convictions of dozens of jailed Islamist activists in connection with the Bali and other attacks.
However, both conservative Justice Minister Yusril Mahendra and Constitutional Court Chief Justice Jimly Asshiddiqie have suggested constitutional court rulings can only apply to future criminal cases.
The constitutional court is viewed
“Literally, we’ve got the chief justice and the justice minister presiding over the destruction of their own court. It’s the kind of thing a dictator would love,” Tim Lindsey, an expert on Indonesian law and chairman of the Asian Law Centre at Melbourne University, told Aljazeera.net.
“It’s an absolutely basic point in any constitutional review. It is saying that the law has been invalid and unconstitutional from the very beginning. What would be the point of asking for a judicial review if it doesn’t apply to your client?”
Free of bribery
Indonesia’s new constitutional court is seen as independent and untainted by the bribery and corruption rampant in other levels of the judiciary. Its rulings cannot be appealed.
Kadir’s lawyer called the decision “a victory for democracy”, adding that it was one of the few high-profile verdicts he has seen that was free of bribery or political interference.
“The case was handled like that in any Western country like Australia or the US. No one asked me for any ‘special favours’ and I cannot say that about many other
Adnan Wirawan, counsel for jailed cleric Abu Bakr Bashir
“We believe this decision was based on solid academic review and that there was no attempt at political interference inside the court,” Adnan Wirawan, a lawyer who represents the jailed cleric Abu Bakr Bashir, said.
“The case was handled like that in any Western country like Australia or the US. No one asked me for any ‘special favours’ and I cannot say that about many other courts I’ve spoken to.”
While not unexpected, the ruling raised the spectre of convicted Bali bombing masterminds Imam Samudra, Mukhlas and Amrozi walking free.
All three are under sentence of death for planning and carrying out the attacks that killed more than 200 people, many of them foreign tourists drawn to the resort island.
The Bali bombing accused and more than two dozen co-conspirators currently serving sentences of between two years and life, were convicted under the anti-terror laws.
The same legislation was also used to hold and convict suspects in the truck bombing of the US-owned JW Marriott hotel in downtown Jakarta last August that killed 11 people.
Indonesia and Australia teamed
Roughly 90 Australians died in the Bali bombings and the nation’s federal police worked closely with Indonesian authorities to track down those responsible.
Australian Foreign Minister Alexander Downer says his government would move “heaven and earth” to ensure the Bali bombers remained in jail.
Evidence presented at both the Bali and Marriott trials linked the bombers to Jemaah Islamiyah, a shadowy al-Qaida-linked organisation that is believed to have played a role in four-year-long campaign of bombings and assassinations in Indonesia, Thailand and the Philippines.
In a hint of what possibly is to come, prosecutors have dropped plans to lay charges relating to the Bali bombing against Bashir, the man identified by foreign intelligence services as the spiritual leader of Jemaah Islamiyah.
The Bashir factor
“So, we will set aside his alleged involvement in the Bali case,” said Det Suyitno Landung, the head of the national police intelligence division.
“However, we have other terror cases such as the Marriott hotel bombing linked to members of the organisation that he leads.”
“We will set aside Bashir’s alleged involvement in the
Det Suyitno Landung, head of Indonesia’s national police intelligence division
A court last September jailed the cleric for four years for involvement in a JI plot to overthrow the government but said there was no proof he headed the network.
An appeal court overturned that conviction but ruled Bashir must serve three years for immigration-related offences. The Supreme Court later halved the sentence.
Bashir’s lawyers are demanding his release.
“They’re behaving like juveniles,” says Wirawan. “All they need to do is read the Abdul Kadir judgment. Every minute of his arrest after the ruling is unlawful. The police should voluntarily release him, not because they believe he is innocent but because they believe in the system.”