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.