The courts must be prepared to try terrorist cases

The government has just issued two antiterrorism regulations (Perpu) in response to the Oct. 12 tragedy in Bali. Many support the government's move, but many have also expressed worry that the regulations will be abused by the authorities as the New Order regime treated the antisuberversion law in the past. Constitutional law expert Dimyati Hartono shares his view with The Jakarta Post's Soeryo Winoto on the issue.

Question: The government has just issued two antiterrorism regulations (Perpu). How do you see this from a legal point of view?

Answer: Good. First, because the authorities now have a very clear and concrete legal basis to act (against terrorism). The second is that the regulations give the law enforcers more authority and power. They (the law enforcers) are allowed to detain a (terrorism) suspect up to six months. The authorities are also allowed to use intelligence sources of information (in probing terrorism-related cases). In this way, the (new) regulations are a deterrent against any terrorists' plans and activities in the country. The regulations could also prevent any possible terrorist activities from taking place, and the police have the power to stop any organizations from taking the law into their own hands. However, the cooperation among security institutions and law enforcers must be improved and made more solid.

Q: So you don't see there will be any conflict between the Perpu and the Constitution and Criminal Code (KUHP) once the Perpu is implemented?

A: No. Legally everything is clear. The legal basis for the Perpu is the Constitution itself.

Q: The new regulations have a retroactive principle. How will that work?

A: The retroactive principle will only be applied for the Bali bombing case, not for other cases. The Bali incident is an extraordinary tragedy against humanity.

By law, regulations could have a retroactive principle, because there are always exceptions in law. This is a universal concept. And our 1945 Constitution also guarantees this exception, that a President has the authority to issue a regulation (Perpu) in case of emergency, without the House of Representatives' approval. The making of the Criminal Code (KUHP) and Criminal Code Procedures (KUHAP), which are based on the government or the House initiatives are classified as normal. Therefore, the issuance of the Perpu is not counter to our Constitution.

Q: Some said that Indonesia should have had antiterrorism laws a year ago, but soon after the regulations were issued some others said that the government was in a hurry to issue such regulations. How do you see this?

A: That's what the opinion is of those people with special, but unclear interests, such as for their own political parties or groups. The government must have a concrete legal basis in a state of emergency. It's essential for intellectuals to maintain objectivity and think for the sake of the interest of the people in the world.

Q: Do you think that our law enforcers, especially the judges, are ready to process terrorism-related cases in court?

A: They must be ready. They must be able to adapt to the regulations. Those found incapable must step aside to make way for those who are smarter. We still have many good and smart judges.

Q: What do you think the biggest stumbling block will be once the Perpu is implemented?

A: Things will proceed in a normal way, but I think the courts could become the problem. Usually the courts fail to use (legal) evidence in a proper way to explore a case. A trial is a process after police and prosecutors' investigation. The police and prosecutors submit evidence for their charges against the defendants, but unfortunately many court proceedings have so far proven incapable of exposing the case using the evidence. This happens because those involved in the trial do not have an adequate professional commitment to the law.

Q: Some people are worried that the antiterrorism regulations would be excessively used by the authorities to act, like the antisubversion law in the New Order regime. Is such a worry reasonable?

A: I see there is no reason to worry about that. During the New Order era the security institutions had an absolute authority to act against those found or suspected of disturbing security and order. A special and powerful institution called Kopkamtib (Operational Command for the Restoration of Security and Order) was set up to back up the law.

However, the new antiterrorism regulations deal with terrorism-related issues only. The security institution will have no extra power or authority to enforce the regulations.

Q: What about the possibility of human rights violations?

A: Human rights violations will take place if there is no clear and strong legal basis. Once again, the regulations are the legal basis for the security personnel to act against terrorism.

Should we absolutely respect one individual's rights and ignore 200 million others' right to peace and security?

We should not be carried along to an interpretation of respecting individual rights but breaching others'.

Terrorism is not only the nation's concern. Let's think based on universal humanity.