~Efforts to reform the Antiterror Law must be conducted
~Efforts to reform the Antiterror Law must be conducted
carefully so as not to infringe the international or
constitutional rights of individuals.
;JP;CD;
ANPAk..r..
Reforming the anti terror law
JP/6/MOVA
Reforming the Antiterror Law
Mohamad Mova Al 'Afghani
Jakarta
Long unguarded coastlines, poverty, rampant corruption, a
crippled legal system and widening social and economic gaps
accompanied by mushrooming religious extremism have made
Indonesia an easy target for terrorists. With a little cash and
the misuse of Koranic verses, it will be easily possible to
brainwash further candidates for suicide bombings.
All these factors have triggered the demand to amend the
existing Antiterror Law with a new one that gives more powers to
the government. A high ranking official referred to Malaysia's
Internal Security Act and the U.S.' Patriot Act as benchmarks of
antiterror law.
As a "post-modern" crime, the crime of terrorism is in many
senses different from that of usual crimes. Unlike most ordinary
crimes, terrorist attacks are often not accompanied by explicit
demands, thereby blurring their true motivation. The terrorist
organization often has networks in various countries, backed with
enormous financial support and its cells successfully mingle into
society, making it difficult for would-be terrorists to be
singled out from innocent people. Not only that, their
unpredictable, suicidal actions go against most normal people's
sensibilities.
To cope with these extraordinary crimes, the world's legal
systems have tried to introduce legislation that deviates from
normal criminal laws. Several countries have permitted actions,
including a derogation of an individual's civil rights, such as
the quick detainment of suspects without judicial intervention,
or arrests using intelligence information that deny the right of
suspects to obtain legal counsel.
The first problem to these laws is that there is no accepted
standard legal definition of the term "terrorism". The term is
more political than legal. According to the law and common
doctrines, terrorism consists of two elements, namely violence or
threat of violence and the spread of fear or terror. Plainly
speaking, only the psychological element -- the spread of terror
-- is what distinguishes terrorism from ordinary crimes. However,
using this concept, many ordinary criminal offenses could still
be categorized as terrorist acts, so long as they had managed to
result in public fear.
This is what makes antiterror laws in this world generally bad
laws: The crime itself is ill-defined. It is very difficult to
measure the parameters of "causing the spreading of fear or
terror". This element cannot be quantified and will depend
heavily on the subjective interpretation of its users. This has
so far been proven by how these laws have been put into practice.
Other than an elastic and broad definition of these crimes,
antiterror laws commonly permit a quick detention of suspects
without trial. Fortunately, our laws still require judicial
intervention before detaining a suspected terrorist. The
requirement to have judicial intervention in detainment and
arrest originates from the notion of the Rule of Law. This means
that every non-criminal is essentially free to move from one
place to another.
Another practical reason to keep the judiciary involved in
determining who is a terrorist is that our antiterror law permits
the apprehending of individual based on intelligence reports
alone. Elucidation of the law states that intelligence
information could be derived from almost any relevant state
institution, such as the Ministry of Foreign Affairs or the
Ministry of Finance. This is a very loose and elastic provision
as intelligence information is not as strong as "preliminary
evidence" used normally in detaining a suspect under criminal
procedural law.
The existing law obligates the police to obtain a warrant from
the chief of a district court before conducting an arrest. Prior
to issuing a warrant, the judge will have to conduct an
examination of the preliminary evidence or intelligence
information submitted to them within three days. It is thus
understandable that the National Police have complained that
judicial intervention in terror-related arrests has caused
bureaucratic problems and hindered their work.
However, totally eliminating the judiciary's role in the
detainment process is a very bad idea. What could be reformed is
the length of the detention, which could be made shorter. The
warrant-making authority could also be transferred to higher
branches of the judiciary in a bid to simplify the bureaucracy.
The law also permits the random detention of highly suspected
terrorists for seven days. This requirement is already tough and
needs not to be extended. The police could use intelligence to
monitor the suspected terrorists upon their release, or request
the court for an extension of the arrest if new evidence is
discovered.
Efforts to reform the Antiterror Law must be conducted
carefully so as not to infringe the international or
constitutional rights of individuals. Indonesia has ratified
civil rights conventions and would therefore have the
international obligation to adhere to their provisions.
Protection from arbitrary arrests and detention is provided
under the International Covenant on Civil and Political Rights to
which Indonesia is a party. The Amended 1945 Constitution,
Article 28D, also provides stringent protections of civil rights.
In the past, we have allowed a retroactive provision to be
enforced against terrorism cases. Protection against non-
retroactivity is actually something that is paramount under
International Law and the Constitution. Although finally annulled
by the Constitutional Court, the fact that the government and the
House of Representative approved its use, is evidence that our
community is becoming more permissive towards the use of
excessive authority, although it has undermined the Rule of Law.
These are unpleasant signals in a society that is just
beginning to succeed in building democracy. Oftentimes, the
answer to social problems lies not in giving more power to the
state to supervise the conduct of its citizens, or to restrict
peoples' rights, but by social approaches.
These should be performed through civil education and the
promotion of religious tolerance, accompanied by explicit support
and real actions in combating terrorism through this nation's
influential religious bodies, such as the Indonesian Ulema
Council (MUI) and other relevant institutions.
The writer is a lawyer and lecturer. He can be reached at
movanet@yahoo.com