Are ASEAN countries ready for an anti-terrorist convention?

Siswo Pramono, Deputy Director, for Global Organization, Ministry of Foreign Affairs, Jakarta

Various regions -- America, Western Europe, East Europe, Africa, and South Asia -- have regional treaties to combat terrorism. Southeast Asia has no such treaty. With this oversight in mind, legal officers and diplomats from Southeast Asia met in Bali last August and agreed, in principle, that such a treaty (or convention) is a necessity for the Association of Southeast Asian Nations.

ASEAN leaders have also taken up such concerns in the recent Summit. Bali Concord II states that ASEAN shall fully utilize the existing institutions and mechanisms within the association with a view to strengthening regional and national capacities to combat and counter terrorism.

At the national level, ASEAN member countries have been engaged in capacity building to suppress terrorism, leading to controversy, particularly when they are seen as encroaching the human rights of suspects.

Brunei Darussalam is equipped with 11 national legislations to suppress terrorist acts. Indonesia has enacted Law No. 15/2003 concerning the eradication of acts of terrorism. Malaysia has developed a compendium of 55 laws, including the Penal Code and, as is also the case with Singapore, the Internal Security Act, to counter terrorism.

Thailand, Cambodia, and Vietnam have taken legal measures to assert control of terrorist activities. The Philippines is in the process of enhancing its national legislation to combat terrorists. At present, only Lao and Myanmar do not have specific (or comprehensive) laws on terrorism.

The problem with the aforementioned national legislations is that they may not be compatible with one another. And, worse, due to their respective colonial histories, ASEAN countries have adopted different legal systems.

With such difficulties in mind, and while considering some assertions on the lack of political will, rather than the flaw, or incompatibility of the existing national institutions and mechanisms, an "ASEAN convention on combating terrorism" is worth considering. Such a convention could help bridge the gaps among various national legislations and contending legal systems in South East Asia.

ASEAN has in fact developed a regional political infrastructure -- seven declarations, a plan of action and its work programs, an agreement and its protocols, joint communique and statements etc. -- to deal with terrorism.

With the existing political infrastructure and, hopefully, a more determined political will, a regional convention to suppress terrorist activities is now a possibility. But what should such a convention focus on? ASEAN can learn from the various anti- terrorist treaties arrived at by other regional organizations.

The definition of terrorism, for one, is often a frustrating starting point. But ASEAN could learn, for instance, from the detailed definition of terrorism as elaborated in the 1999 Convention of the Organization of the Islamic Conference (OIC) on Combating International Terrorism.

Article 1 of the convention defines "terrorism" and "terrorist crime". It also provides a comprehensive list of the criminal acts accepted by the international community as terrorism.

Extradition, as a tool to combat transnational crime, particularly terrorism, is always a controversial issue. The capture of Hambali and the debate over his possible extradition is the case brought to mind. Some states, including Singapore, are cautious when they discuss extradition. But, for various regional anti-terrorist treaties, extradition is a necessity.

The 1977 European Convention on the Suppression of Terrorism devoted 8 out of its 16 articles to dealing with extradition. And 6 out of 11 articles in the 1987 South Asian Association for Regional Cooperation on Suppression of Terrorism are devoted to extradition. As such, provisions on extradition must likewise be included in the ASEAN anti-terrorist convention.

In case an agreement on extradition is hard to reach, then, alternatively, the ASEAN anti-terrorist convention could adopt articles on extra-territorial investigations and mutual legal assistance. The Organization of African Unity (OAU) Convention on the Prevention and Combating of Terrorism governs such an arrangement. Thus, for instance, without necessarily calling for an extradition, Indonesian police would be given access to investigate an Indonesian citizen held in another country over terrorist charges.

An ASEAN anti-terrorist convention could also serve as a blueprint for technical cooperation. Here, the experience of countries in East Europe is relevant. The 1999 Treaty of Commonwealth of Independent States in Combating Terrorism governs various technical matters, ranging from exchange of intelligences to sending special anti-terrorist units to fight terrorists operating in other member countries. (But ASEAN should not necessarily step toward this extreme direction).

More importantly, and taking the promotion of the ASEAN security community into consideration, the anti-terrorist convention could function as a tool of social engineering.

A "dialog forum" involving academicians, experts, and diplomats held last August in Semarang revealed the need for ASEAN to promote a common understanding among the South East Asian community about the teaching of jihad in the context of pluralism and tolerance.

The ASEAN anti-terrorist convention could help attain such a goal by, for instance, standardizing the curricula of religious boarding schools (of various religions) in ASEAN countries.

Last but not least, the ASEAN anti-terrorist convention could help strike the balance between the urgent need to protect the ASEAN community from the dangers of terrorism, and, equally, the pressing need to protect the suspects from the possible human rights abuses, which are a form of state terrorism.

The opinions stated above are solely those of the author.