The courts must be prepared to try terrorist cases

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.