A step forward, a step back

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.