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.