A step forward, a step back

By annulling Law No. 16/2003 on retroactivity of the Antiterrorism Law last Saturday, the Constitutional Court put the nation one step back in its fight against terrorism -- and took it one step closer to establishing a viable, working democracy.

The fact is, although legal professionals acknowledge that special conditions might exist to permit state authorities and lawmakers to waive the non-retroactive principle, this principle remains one of the most fundamental judicial tenets to this day.

After all, it provides the only formal guarantee that people will not be arrested arbitrarily for offenses, whether actual or alleged, under laws that did not exist at the time the offense was committed. Needless to say, this is essential in any country that respects -- or is making efforts to accommodate -- the basic rights of all individuals.

How, then, did Law No. 16/2003 come to be passed? As may be recalled, this law is an extension of a government decree that was enacted, in rather a hurry, in the wake of the Oct. 12, 2002 attacks on two nightclubs in Bali that killed at least 202 people.

For the first time in recent history, the retroactive principle was applied for the specific purpose of tracking down and capturing the perpetrators of the Bali bombings. A number of terrorists were arrested and tried, and several have since been sentenced either to death or life.

The retroactivity of the decree also made it possible for authorities to arrest and convict accomplices and abettors.

Given the proven effectiveness of the Antiterrorism Law, Saturday's ruling obviously raises a serious obstacle in the authorities' efforts to corral those implicated by, associated with or involved in the Bali bombings, but who have escaped the law so far.

It is believed that many such individuals have been in hiding since the key terrorists and accomplices were arrested within the first few months after the tragedy. Understandably, friends and family of Australian victims have been enraged by the anti- retroactivity ruling.

It is important, however, to view the issue within the Indonesian context, which goes above and beyond the Bali bombers or their accomplices. At stake is the much bigger issue -- especially at this stage of democratic and judicial reform -- of protecting and ensuring basic human rights.

In particular, it is about whether the fight against terrorism should take priority over guaranteeing protection for all citizens against arbitrary arrests and other legal measures, including those committed by the state -- which is, after all, another form of terrorism.

The narrowly split motion that passed the anti-retroactivity ruling -- five judges for and four against annulling Law No. 16/2003 -- shows that the two sides to the argument prevailed almost equally strongly during the deliberation.

It should also be noted that even though Law No. 16/2003 was scrapped, the judiciary still has Antiterrorism Law No. 15/2003 -- which, however, does not contain an clause on retroactivity.

In short, the Constitutional Court ruling limits what can and can't be done in the war on terror. However, the implied bounds are not likely to be as severe as some observers seem to expect. Even without the retroactivity principle, much can be done under existing laws to ensure that the people are protected against terrorism.

In conclusion, three further points must be noted: The first is that the Court has so far proved itself worthy of the public's trust in its capacity as the ultimate bulwark of law enforcement. The second is that, by publicly declaring its respect for and abidance with the court decision, the government is, for its part, making a valuable contribution toward the proper enforcement of law in Indonesia. Finally, both deserve to be commended for this show of wisdom and statesmanship.