Terror law 'against constitution'
Terror law 'against constitution'
Muninggar Sri Saraswati, Jakarta
The Constitutional Court said on Friday the retroactive principle
of the Antiterrorism Law used to convict Bali bombers was against
the Constitution.
However, the decision does not automatically overturn the
convictions of dozens of militants responsible for the 2002 Bali
blasts that killed 203 people, although it would open the chance
for them to file fresh appeals, according to an assistant to the
judges.
"The convictions of all the Bali bombing suspects are still
effective. The convicts or their lawyers, however, could use the
Constitutional Court's decision in their legal arguments to
appeal to higher courts," Refli Harun said.
The decision on Law No. 16/2003 on terrorism was made after
five of the court's nine judges agreed that its retroactive
principle violated the Constitution and the basic principles of
legislation.
"The antiterrorism law is no longer legally binding. We order
all parties to implement the decision accordingly,"
Constitutional Court chairman Jimly Asshidiqie told a hearing on
Friday.
He said the antiterrorism law has fulfilled the expectation of
those seeking justice, but it need not be retroactive because
terror suspects could be charged under other existing regulations
that also carry severe penalties.
Indonesia has two laws on terrorism -- Law No. 15/2003 on
terrorism eradication, and Law No. 16/2003 that was made
retroactive in connection with the Bali bombing.
"The non-retroactive principle is strict. Otherwise, it would
open door for certain regimes to use the laws as a tool to take
revenge against political opponents. There must be no chance for
it to happen," Jimly said, reading out the verdict.
The Constitutional Court is considering a judicial review by
Masykur Abdul Jailani, who was jailed for 15 years for helping
the Bali bombers. His appeal had been dismissed by the Supreme
Court.
Masykur claimed a subsidiary law which made the main
antiterror law retroactive -- to cover the Bali attacks --
breached the Constitution. The five judges agreed.
The five justices also blasted both the government and the
House of Representatives for enacting the new legislations for
certain crimes deemed new in the country, instead of enforcing
the existing laws to punish criminals.
"It could set a bad precedent for the country if the
Constitutional Court endorses the law, which was enacted based on
the judgment of both the House and the government in considering
one or two crimes against humanity," he added.
However, four other judges said the retroactive principle
could be applied in Oct. 12, 2002 Bali bombing, because the
incident had created huge losses to the nation as a whole.
Citing a similar case, they pointed to the Nuremburg tribunal,
which prosecuted Nazi suspects in serious crimes against humanity
during the World War II, in 1998.
Both the country's antiterrorism laws were passed to approve
two government regulations in lieu of law on terrorism, which
were issued after the devastating blasts in Bali.
The enactment of the laws followed strong international
pressure on the Indonesian government to help fight terrorism
after the Sept. 11 tragedy in the United States.
However, the Indonesian authorities had said they could not
make arrests of suspected terrorists due to lack of evidence.
Under the current antiterror laws, legal actions can be taken
against suspects based solely on intelligence information.
The Constitutional Court also ruled that the law enforcing
authorities must refer to the Criminal Procedures Code (KUHAP)
that requires them to produce solid evidence before making
arrests.
Amrozi and his brother Mukhlas along with Imam Samudra were
sentenced to death by the Denpasar District Court over the Bali
attacks. Their appeals were rejected by higher courts.
The three were among a total of 33 suspects convicted in the
same tragedy.