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.