Retroactivity for terrorist regulations gains support
Moch. N. Kurniawan, The Jakarta Post, Jakarta
A number of experts expressed on Monday their support for a retroactive principle in the government regulation in lieu of law No. 1/2002 on antiterrorism, saying it must be implemented to deal with other terror attacks prior to the carnage in Bali.
The government issued an additional regulation to specifically tackle the Bali bombing attack that killed nearly 200 people and injured scores of others.
Legal experts Frans Hendra Winarta, Achmad Ali and military expert Kusnanto Anggoro said the retroactive provision was necessary to try perpetrators of extraordinary crimes such as terrorist attacks, which are deemed similar to crimes against humanity.
"The regulation must be retroactively applied to prosecute perpetrators of previous unresolved acts of terror in the country. Victims of these atrocities also need justice," Frans told The Jakarta Post.
There were a number of terror attacks during the tenure of former president Soeharto directed against the state or against the general public and those carried out by the military.
The Istiqlal Mosque bombing in 1978 and Gedung Seminari AlKitab in Malang in 1984 are cases that remain unsolved, as well as widespread abductions and terror tactics directed at anti- Soeharto activists.
"If the retroactive principle goes against the amended 1945 Constitution, then we must amend our Constitution," he said.
To avoid any abuse, Frans said only terror that was well organized and resulted in mass victims and panic could be prosecuted as a crime against humanity.
Article 46 of the regulation stipulates that articles in this ruling may be implemented retroactively for particular cases prior to the endorsement of the ruling, which will be made under a new law or government regulation in lieu of law.
However in the amended 1945 Constitution, Article 28I paragraph 1 stipulates that the right of citizens not to be prosecuted retroactively is a human right that shall not be diminished under any circumstances.
Citing the Constitution, there is also opposition from other legal experts regarding the retroactive principle, who fear the principle would be used to issue rulings to prosecute individuals arbitrarily for terrorism.
The opposition maintains that the only exception for the retroactive principle are crimes against humanity; including widespread and systematic killing and slavery.
Kusnanto agreed with Frans and called on the government to declare terrorist acts as crimes against humanity, once the criteria has been established.
He also demanded that mechanisms for public complaint be established so that fair trials would be assured; that there would be rehabilitation after acquittal and punishment provided for false intelligence reporting.
Achmad said the retroactive principle was a breakthrough that must be implemented to try perpetrators of any previous terror attacks during the rule of former president Soeharto.
"With good will, we see the government is now capable of realizing the mandate of the people. So why can't the government issue a ruling to deal with previous terror attacks, for example those on activists during the Soeharto regime," he said.
He went on to demand that the House of Representatives control the issuance of the emergency rulings in order to avoid any abuse.
"We can only hope that the government will use the principle for the sake of the people, not for its own interests," he told the Post.
Under the amended 1945 Constitution a government regulation in lieu of law issued by the government can come into effect immediately upon its issuance, however the House is required to approve it in the following session.