The antiterror regulations

The antiterror regulations

Siswo Pramono, School of Social Science, The Australian National
University, Canberra

Terrorist attacks per se might not trigger an emergency
response. But a deadly combination of a major terrorist attack
and an acute economic crisis deserves such a response.
Unfortunately, in all kinds of emergencies, the options are
always limited. And in addressing the Bali carnage, the
antiterrorist regulations in lieu of a law are the best among the
worst options that we are forced to take.

The emergency nature of the antiterrorist regulations is
threefold: To prevent more terrorist attacks, to punish the
terrorists, and to mitigate the impact of the Bali bombing to the
nation's political and economic life.

Preventing terrorist acts is the most daunting task. The
terrorists, who employ the strategy of asymmetric warfare, have
the advantage of what, where, when and how to strike. In our war
on terror, the whole country is a sitting duck.

Every inch of our vast archipelago and every aspect of our
lives are now a war zone. Yet, it is impossible to guard all
potential targets of terrorist attacks.

As such, prevention requires pre-emptive acts against
terrorists. The nature of prevention is thus the urgent need to
destroy the terrorist network in our country before they launch
another devastating attack, and hence claim more innocent lives.
The antiterrorist regulations provide a legal basis for such a
preventive mission.

Prevention aside, if justice matters, punishing those who are
responsible for the Bali carnage is a pressing need. It is an
irony, however, that justice cannot be effectively attained
without making the regulation to investigate the Bali bombing
retroactively.

This retroactivity, which can be considered extra-
constitutional, if not counter to the general principle of
criminal law, is not without reason. The retroactivity is
justified because superior principles, or the spirit, of justice
outweigh the principle of non-retroactivity.

The barbaric attack in Bali harms the fundamental interests of
Indonesia and the whole international community, and hence
qualifies as hostis humani generis (enemy of mankind). It would
be absurd if rigid legal technicalities allowed the perpetrators
to go unpunished.

There is, in fact, a precedence of such a retroactivity. The
trial of Nazi terrorists in Nuremburg could be considered ex post
facto, since the tribunal and its statutes were in place after
World War II ended. But without these retroactive trials, the
world would have, in essence, rewarded the inhumane acts of the
Nazis by allowing impunity.

The Bali bombing has cornered us in a very difficult position.
It is now not only the terrorists, but we, as a nation, who are
being judged by the international community for our failure to
protect the lives of innocent Indonesians and guests in this
country.

In the last two years, we have become a disgraceful victim of
terrorism. And with the Bali carnage, we lost all remaining, yet
badly needed, international trust and confidence.

Indonesia needs 'to do business' with the international
community to survive the current multi-dimensional crisis. Amid
our desperate attempts to attract foreign investment and promote
trade, we are now at risk of being isolated by the international
community.

Foreigners are leaving this country. We can only bring them
back if we can bring the terrorists to justice, and hence restore
real security and international confidence.

The antiterrorist regulations, however, are not the panacea of
this very complex problem. Yes, the new regulations can ease the
investigation of the Bali bombing. But whether or not Indonesia
can win its war on terror is subject to the capacity of our law
enforcement agents and agencies.

And most importantly, the government should have strong
determination and political will to suppress terrorism. The
priority to combat terrorism should override the selfish
calculation of party-politics to win the coming general election.
Winning or losing the war also depends on the government's
ability to lead and coordinate international support.

The war on terror requires our eternal vigilance both in
combating terrorism and in controlling the implementation of
antiterrorist regulations. The regulations should not be taken
for granted.

The point is, we should not practice the 'end justifies means'
principles. The antiterrorist regulations should be used
accordingly to repress acts that legally and morally qualify as
terror. The regulations should not in any way be used as a
political weapon to target the stubborn dissenting voices, the
unruly radicals, or the noisy fundamentalists as terrorists.
These groups are, after all, part of the pluralistic picture of
our newly attained democracy.

To win the war on terror, the government should first win the
support of the people. And the people will support the government
if it wages a 'just', not 'dirty', war on terror. The emergency
nature of the unprecedented antiterrorist regulations is thus not
without limit.