One step back over Bali

One step back over Bali

The tragedy of the Bali bombing demonstrated Australia and
Indonesia could rise above a sometimes testy past. Cooperation
between investigators was substantial and the prosecutions of the
Bali bombers swift and, seemingly, efficient. The news, then,
that the Bali bombers might eventually walk free - after
Indonesia's Constitutional Court upheld an appeal against the
retrospective application of anti-terrorism laws - is devastating
for survivors and the families and friends of the 202 victims.
The first question that should be asked is why such a precarious
legal path was so confidently chosen when the possibility of a
Constitutional Court challenge was apparent even before the
trials.

The Bali bombings in October 2002 coincided with several very
important developments in Indonesia's political and legal system.
After the fall of the Soeharto regime in 1998 Indonesia began
dismantling the architecture of dictatorship and building the
pillars of a liberal democracy. Indonesia's legal system had, for
decades, been used as a blunt instrument against Soeharto's
political opponents and the establishment of an independent
judiciary remains critical to the legitimacy of Indonesia's new
democracy. When the first Bali bomber was sentenced to death last
August, the new Constitutional Court had not even convened.
However, constitutional amendments two years earlier included a
prohibition on retrospective laws.

What split the Constitutional Court last week, and resulted
in the five-four decision to uphold the appeal, was the
definition of the Bali crimes. Five judges said the accused could
have been tried under existing Criminal Codes, avoiding the vexed
issue of retrospective law.

The Bali bombers will not walk free in the near future; they
face a complex and protracted legal battle. Even if they do
succeed they are expected to be re-arrested immediately and
charged under the Criminal Code. Indonesia has no clear position
on "double jeopardy' which would, potentially, prevent those
convicted from being tried again for the same crimes. The use of
alternative criminal laws against terrorists, such as 1950s
legislation which authorizes the death penalty for possession of
firearms and explosives, has already been proposed.

-- The Sydney Morning Herald.