Retroactivity for terrorist regulations gains support

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.