A step forward, a step back<\/p>\n
By annulling Law No. 16\/2003 on retroactivity of the
\nAntiterrorism Law last Saturday, the Constitutional Court put the
\nnation one step back in its fight against terrorism -- and took
\nit one step closer to establishing a viable, working democracy.<\/p>\n
The fact is, although legal professionals acknowledge that
\nspecial conditions might exist to permit state authorities and
\nlawmakers to waive the non-retroactive principle, this principle
\nremains one of the most fundamental judicial tenets to this day.<\/p>\n
After all, it provides the only formal guarantee that people
\nwill not be arrested arbitrarily for offenses, whether actual or
\nalleged, under laws that did not exist at the time the offense
\nwas committed. Needless to say, this is essential in any country
\nthat respects -- or is making efforts to accommodate -- the basic
\nrights of all individuals.<\/p>\n
How, then, did Law No. 16\/2003 come to be passed? As may be
\nrecalled, this law is an extension of a government decree that
\nwas enacted, in rather a hurry, in the wake of the Oct. 12, 2002
\nattacks on two nightclubs in Bali that killed at least 202
\npeople.<\/p>\n
For the first time in recent history, the retroactive
\nprinciple was applied for the specific purpose of tracking down
\nand capturing the perpetrators of the Bali bombings. A number of
\nterrorists were arrested and tried, and several have since been
\nsentenced either to death or life.<\/p>\n
The retroactivity of the decree also made it possible for
\nauthorities to arrest and convict accomplices and abettors.<\/p>\n
Given the proven effectiveness of the Antiterrorism Law,
\nSaturday's ruling obviously raises a serious obstacle in the
\nauthorities' efforts to corral those implicated by, associated
\nwith or involved in the Bali bombings, but who have escaped the
\nlaw so far.<\/p>\n
It is believed that many such individuals have been in hiding
\nsince the key terrorists and accomplices were arrested within the
\nfirst few months after the tragedy. Understandably, friends and
\nfamily of Australian victims have been enraged by the anti-
\nretroactivity ruling.<\/p>\n
It is important, however, to view the issue within the
\nIndonesian context, which goes above and beyond the Bali bombers
\nor their accomplices. At stake is the much bigger issue --
\nespecially at this stage of democratic and judicial reform -- of
\nprotecting and ensuring basic human rights.<\/p>\n
In particular, it is about whether the fight against terrorism
\nshould take priority over guaranteeing protection for all
\ncitizens against arbitrary arrests and other legal measures,
\nincluding those committed by the state -- which is, after all,
\nanother form of terrorism.<\/p>\n
The narrowly split motion that passed the anti-retroactivity
\nruling -- five judges for and four against annulling Law No.
\n16\/2003 -- shows that the two sides to the argument prevailed
\nalmost equally strongly during the deliberation.<\/p>\n
It should also be noted that even though Law No. 16\/2003 was
\nscrapped, the judiciary still has Antiterrorism Law No. 15\/2003
\n-- which, however, does not contain an clause on retroactivity.<\/p>\n
In short, the Constitutional Court ruling limits what can and
\ncan't be done in the war on terror. However, the implied bounds
\nare not likely to be as severe as some observers seem to expect.
\nEven without the retroactivity principle, much can be done under
\nexisting laws to ensure that the people are protected against
\nterrorism.<\/p>\n
In conclusion, three further points must be noted: The first
\nis that the Court has so far proved itself worthy of the public's
\ntrust in its capacity as the ultimate bulwark of law enforcement.
\nThe second is that, by publicly declaring its respect for and
\nabidance with the court decision, the government is, for its
\npart, making a valuable contribution toward the proper
\nenforcement of law in Indonesia. Finally, both deserve to be
\ncommended for this show of wisdom and statesmanship.<\/p>",
"url": "https:\/\/jawawa.id\/newsitem\/a-step-forward-a-step-back-1447893297",
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"sponsor": "Okusi Associates",
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