Legal experts at odds over status of Bali bombers

Legal experts at odds over status of Bali bombers

Muninggar Sri Saraswati and Abdul Khalid, Jakarta

Legal experts differed on Sunday as to whether or not those
jailed for plotting the deadly Bali bombings in October 2002
would eventually walk free following the Constitutional Court's
decision to declare Law No. 16/2003 unconstitutional.

Meanwhile, political and security ministers will meet on
Monday (today) to discuss and publicly announce the government's
stance on the issue.

University of Indonesia law lecturer Rudy Satrio said on
Sunday that those convicted of the Bali bombings could file for a
Supreme Court review as the ruling could serve as new evidence.

"The decision to declare Law No. 16/2003 unconstitutional
means there is now new evidence that was not available during
their trials. I think the Supreme Court would review the verdicts
as the law on which they were based has now been overturned,"
Rudy told The Jakarta Post.

A total of 32 people were charged under Law No. 16/2003, which
allows the retroactive application of Law No. 15/2003, with
involvement in the Bali bombings of Oct. 12, 2002, which killed
over 200 people and injured more than 300 others.

The Constitutional Court judges were divided in their stance
on the issue last Friday. While all agreed that the anti-
retroactivity principal was not absolute, five out of the nine
judges said that the Bali bombings were crimes that could have
been tried under the existing Criminal Code, and did not
constitute gross violations of human rights such as genocide,
which is not covered under the Criminal Code, and thus did not
require the anti-retroactivity principle to be jettisoned.

The others said the gravity of the Bali bombers' crimes
warranted the application of retroactivity as this would satisfy
the "need for justice".

Rudy said it was likely that the Supreme Court would overturn
the earlier verdicts and acquit those who had been convicted
based on the argument that the original verdicts lacked a legal
basis.

However, the former chairman of the Indonesian Legal Aid
Institute Foundation (YLBHI), Bambang Widjoyanto, said that the
Constitutional Court's decision could not be considered new
evidence under the prevailing law.

"According to article 263 of the Criminal Code, the decision
is not new evidence. So, I think the Supreme Court would not
accept their request for a review," Bambang said.

He argued that if the Constitutional Court's decision was
applied to previous cases, such as the Bali bombing verdicts,
then this would in itself also violate the principle of non-
retroactivity -- which principle was, in fact, the essence of the
Constitutional Court's decision.

Noted expert Luhut M. Pangaribuan, meanwhile, said that the
ball was now in the hands of the Supreme Court.

"I think the decision does constitute new evidence, but the
Supreme Court will also have to consider that any decision to
apply the ruling to the Bali cases would also be constitute
retroactivity," Luhut told the Post.

He said that if all those who had been convicted were released
by the Supreme Court, the police could rearrest and detain them
using the provisions of the Criminal Code.

Meanwhile, Minister of Justice and Human Rights Yusril Ihza
Mahendra said Saturday that the punishments that had been handed
down, including those imposed by the Supreme Court, would stand
despite the Constitutional Court's ruling.

"The ruling does not necessarily mean the acquittal of those
convicted of or charged as suspects in connection with the Bali
bombings," Yusril said after a meeting with Deputy Attorney
General Basrief Arief, the justice ministry's legislation
director general Abdul Gani Abdullah, and representatives of the
National Intelligence Agency (BIN) and the National Police.

Yusril said Article 58 of Law No. 24/2003 on the
Constitutional Court stipulates that all statutes are effective
up until such time as the court rules otherwise.