~Efforts to reform the Antiterror Law must be conducted
\ncarefully so as not to infringe the international or
\nconstitutional rights of individuals.<\/p>\n
;JP;CD;
\nANPAk..r..<\/p>\n
Reforming the anti terror law
\nJP\/6\/MOVA<\/p>\n
Reforming the Antiterror Law<\/p>\n
Mohamad Mova Al 'Afghani
\nJakarta<\/p>\n
Long unguarded coastlines, poverty, rampant corruption, a
\ncrippled legal system and widening social and economic gaps
\naccompanied by mushrooming religious extremism have made
\nIndonesia an easy target for terrorists. With a little cash and
\nthe misuse of Koranic verses, it will be easily possible to
\nbrainwash further candidates for suicide bombings.<\/p>\n
All these factors have triggered the demand to amend the
\nexisting Antiterror Law with a new one that gives more powers to
\nthe government. A high ranking official referred to Malaysia's
\nInternal Security Act and the U.S.' Patriot Act as benchmarks of
\nantiterror law.<\/p>\n
As a \"post-modern\" crime, the crime of terrorism is in many
\nsenses different from that of usual crimes. Unlike most ordinary
\ncrimes, terrorist attacks are often not accompanied by explicit
\ndemands, thereby blurring their true motivation. The terrorist
\norganization often has networks in various countries, backed with
\nenormous financial support and its cells successfully mingle into
\nsociety, making it difficult for would-be terrorists to be
\nsingled out from innocent people. Not only that, their
\nunpredictable, suicidal actions go against most normal people's
\nsensibilities.<\/p>\n
To cope with these extraordinary crimes, the world's legal
\nsystems have tried to introduce legislation that deviates from
\nnormal criminal laws. Several countries have permitted actions,
\nincluding a derogation of an individual's civil rights, such as
\nthe quick detainment of suspects without judicial intervention,
\nor arrests using intelligence information that deny the right of
\nsuspects to obtain legal counsel.<\/p>\n
The first problem to these laws is that there is no accepted
\nstandard legal definition of the term \"terrorism\". The term is
\nmore political than legal. According to the law and common
\ndoctrines, terrorism consists of two elements, namely violence or
\nthreat of violence and the spread of fear or terror. Plainly
\nspeaking, only the psychological element -- the spread of terror
\n-- is what distinguishes terrorism from ordinary crimes. However,
\nusing this concept, many ordinary criminal offenses could still
\nbe categorized as terrorist acts, so long as they had managed to
\nresult in public fear.<\/p>\n
This is what makes antiterror laws in this world generally bad
\nlaws: The crime itself is ill-defined. It is very difficult to
\nmeasure the parameters of \"causing the spreading of fear or
\nterror\". This element cannot be quantified and will depend
\nheavily on the subjective interpretation of its users. This has
\nso far been proven by how these laws have been put into practice.<\/p>\n
Other than an elastic and broad definition of these crimes,
\nantiterror laws commonly permit a quick detention of suspects
\nwithout trial. Fortunately, our laws still require judicial
\nintervention before detaining a suspected terrorist. The
\nrequirement to have judicial intervention in detainment and
\narrest originates from the notion of the Rule of Law. This means
\nthat every non-criminal is essentially free to move from one
\nplace to another.<\/p>\n
Another practical reason to keep the judiciary involved in
\ndetermining who is a terrorist is that our antiterror law permits
\nthe apprehending of individual based on intelligence reports
\nalone. Elucidation of the law states that intelligence
\ninformation could be derived from almost any relevant state
\ninstitution, such as the Ministry of Foreign Affairs or the
\nMinistry of Finance. This is a very loose and elastic provision
\nas intelligence information is not as strong as \"preliminary
\nevidence\" used normally in detaining a suspect under criminal
\nprocedural law.<\/p>\n
The existing law obligates the police to obtain a warrant from
\nthe chief of a district court before conducting an arrest. Prior
\nto issuing a warrant, the judge will have to conduct an
\nexamination of the preliminary evidence or intelligence
\ninformation submitted to them within three days. It is thus
\nunderstandable that the National Police have complained that
\njudicial intervention in terror-related arrests has caused
\nbureaucratic problems and hindered their work.<\/p>\n
However, totally eliminating the judiciary's role in the
\ndetainment process is a very bad idea. What could be reformed is
\nthe length of the detention, which could be made shorter. The
\nwarrant-making authority could also be transferred to higher
\nbranches of the judiciary in a bid to simplify the bureaucracy.<\/p>\n
The law also permits the random detention of highly suspected
\nterrorists for seven days. This requirement is already tough and
\nneeds not to be extended. The police could use intelligence to
\nmonitor the suspected terrorists upon their release, or request
\nthe court for an extension of the arrest if new evidence is
\ndiscovered.
\n Efforts to reform the Antiterror Law must be conducted
\ncarefully so as not to infringe the international or
\nconstitutional rights of individuals. Indonesia has ratified
\ncivil rights conventions and would therefore have the
\ninternational obligation to adhere to their provisions.<\/p>\n
Protection from arbitrary arrests and detention is provided
\nunder the International Covenant on Civil and Political Rights to
\nwhich Indonesia is a party. The Amended 1945 Constitution,
\nArticle 28D, also provides stringent protections of civil rights.<\/p>\n
In the past, we have allowed a retroactive provision to be
\nenforced against terrorism cases. Protection against non-
\nretroactivity is actually something that is paramount under
\nInternational Law and the Constitution. Although finally annulled
\nby the Constitutional Court, the fact that the government and the
\nHouse of Representative approved its use, is evidence that our
\ncommunity is becoming more permissive towards the use of
\nexcessive authority, although it has undermined the Rule of Law.<\/p>\n
These are unpleasant signals in a society that is just
\nbeginning to succeed in building democracy. Oftentimes, the
\nanswer to social problems lies not in giving more power to the
\nstate to supervise the conduct of its citizens, or to restrict
\npeoples' rights, but by social approaches.<\/p>\n
These should be performed through civil education and the
\npromotion of religious tolerance, accompanied by explicit support
\nand real actions in combating terrorism through this nation's
\ninfluential religious bodies, such as the Indonesian Ulema
\nCouncil (MUI) and other relevant institutions.<\/p>\n
The writer is a lawyer and lecturer. He can be reached at
\nmovanet@yahoo.com<\/p>",
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