Bali bombing, an extraordinary crime?

Bali bombing, an extraordinary crime?

Jeffrey Winters and Ridarson Galingging, Jakarta

Most people would agree that it is unjust to prosecute someone
for a legal action which is later made into a crime by passing a
new law. Retroactivity, as it is called, is unfair because
citizens must be confident that their legal actions cannot later
be turned against them as illegal.

But how absolute is the retroactivity principle? Are there any
special circumstances under which retroactive enforcement of a
law is justified?

Although the Indonesian Constitutional Court (CC) split 5-4 in
its recent decision on the country's terrorism law, it is
important to note that all of the judges were in agreement that
retroactive enforcement is sometimes justified.

In accordance with principles of international law that have
been in effect at least since the end of World War II, the judges
were unanimous in the view that under special circumstances
retroactive enforcement should be allowed.

Thus, the real controversy at the heart of the recent decision
by the CC is not the broad issue of whether a law can ever be
enforced retroactively, but rather the narrower question of
whether special circumstances existed in the Bali bombing case to
justify retroactive enforcement.

So why did the judges split in their opinion? The answer is
that five judges held that the Bali bombing was an "ordinary
crime," while the dissenting judges argued that the crime was
"extraordinary." Thus, the majority agreed that retroactive
enforcement is justified is some cases, just not in this
particular case.

What this means is that much of the debate focusing on the
important principle of retroactivity is actually beside the
point. It is a philosophical distraction from the real meaning
and intent of the majority on the CC. This decision was more
political than legal.

The judges who prevailed went to great lengths to make sure
that the Bali bombing had no special status as a terrorist act.
By insisting that the bombing was simply a horrible but ordinary
case of murder, the judges crossed the line from pure legal
reasoning into the realm of politics. Their objective was less to
declare and uphold an absolute legal stance on retroactivity, and
more to strike a blow against the prosecution of violent Muslim
extremists as terrorists.

There are two very strong reasons why the judges could and
should have allowed retroactive enforcement of the terrorism law
in the Bali case. They deliberately chose to downplay or ignore
both reasons.

The first concerns the crucial issue of avoiding post-hoc
criminalization.

The single most important argument against retroactivity is to
avoid oppression through the criminalization of non-criminals.
Allowing retroactive enforcement of the terrorism law should have
been easier for the judges because no post-hoc criminalization
occurred in the Bali bombing case. The actions of the
conspirators were criminal whether they were prosecuted under the
terrorism law or the ordinary criminal code.

By contrast, if a citizen legally shouts "the Minister X is
stupid" at a rally, and then a law is passed making it illegal to
say high government officials are stupid, then a legal action has
been retroactively made illegal. Everyone would agree that it is
unjust to enforce the new law against the rally participant who
said the Minister was stupid.

The Bali bombing case is the opposite of this example. The
conspirators committed the crime of killing people, severely
injuring people, and destroying property. Passing the terrorism
law after the bombing did not suddenly transform innocent people
into criminals -- which is the single most important reason to
block retroactivity. It simply redefined their "normal" crimes as
special or "extraordinary," in this case blowing up people with
the specific goal of terrorizing a society.

When a new law transforms innocent citizens into criminals,
all government justifications for retroactivity should be ignored
and the court should always invalidate the law. But when the
actions of the defendants are already serious crimes, the door is
wide open for judges to weigh possible government justifications
for retroactive enforcement of new laws passed after a crime is
committed.

For instance, a government might want to do more than just
punish nightclub or hotel bombers as common murderers to send the
message that they are different from someone who kills a lover or
co-workers in a rage. A government might want to send a clear
signal to its citizens and to the world that terrorism is a
particular kind of threat, and that special actions will be taken
to confront it.

The Indonesian government clearly felt that the benefit of
reducing fear from terror in Indonesia outweighed the minor
disadvantage of retroactively prosecuting cold-blooded murderers
as "terrorists" rather than simply as "ordinary murderers." It is
important to note also that the new law did not increase the
sentences the defendants would face.

On these solid grounds, the Indonesian government made the
right decision to proceed with the prosecutions under the new
terrorism law rather than under the existing criminal codes.

The second reason the CC judges could have used to uphold
retroactive enforcement of the terrorism law was that the Bali
bombing was an "extraordinary" crime involving special
circumstances.

On very weak grounds and reasoning, they deliberately ignored
the arguments in favor of treating the Bali bombing as an
extraordinary crime.

International jurisprudence dating back at least to the
Nuremberg trials holds that the retroactive enforcement of laws
is justified when a crime is "extraordinary."

Another example is terrorism. The point is not just that many
people are killed (this is a common occurrence around the world),
but rather that the people killed are just incidental to the
broader goal of spreading fear and sowing instability.

Again, killing people is already a crime. But governments
routinely treat murders differently based on the motive involved.
And numerous UN Conventions to which Indonesia is a signatory
uphold the principle that this can be done retroactively,
particularly in the case of terrorism.

It happens also that the Bali bombing involved a network of
conspirators that had international linkages, adding to the
"extraordinary" character of the crimes and of the threat.
Existing criminal laws dating back to the Dutch colonial era were
inadequate for pursuing crimes with this trans-national
character.

To support their decision not to relax the retroactivity
principle, the judges first had to dismiss the claim that the
Bali bombings constituted extraordinary crimes. Although the
majority decision cites the testimony of expert witnesses, not
one provided legal grounds or rationales undermining the
Indonesian Justice Ministry's argument that the terrorist
bombings in Indonesia were extraordinary crimes.

To arrive at what can only be described as an extremist legal
interpretation, the judges for the majority had to ignore not
only the well-founded arguments of the Indonesian government, but
also at least a dozen international conventions that treat
attacks such as the Bali and Marriott bombings as terrorist acts,
and thus as extraordinary crimes.

The obvious question that remains unanswered is why these
judges chose to adopt this extremist position. We believe that a
key part of the answer can be found in looking at the political
backgrounds of the majority and dissenting judges, as well as
different training the judges have received.

Jeffrey Winters is a professor of political economy at
Northwestern University. Ridarson Galingging is a lecturer in
international law and human rights at Yarsi University in
Jakarta. He is currently studying for his Doctor of Juridical
Science degree at Northwestern University's School of Law, where
he received his LL.M.