30 July 2004

Independence of the judiciary at stake, not the Bali bombers' fate

But the implications are more dire for the fragile rule of law that has begun to emerge in Indonesia since Soeharto's fall in 1998. It is easy to imagine a legislature dominated by another dictator issuing, for example, a law for the arrest and imprisonment of political opponents in clear breach of the human rights guarantees in the new Chapter XA of the constitution.

Even if the court later strikes out that law, innocent detainees would still be behind bars, serving out unconstitutional sentences, even for life. Asshiddiqie's position would leave Indonesia without the protection of a judicial check on government. In any case, neutering the Constitutional Court to keep Bashir and the Bali bombers in jail is unnecessary.

First, some of the anti-terrorism charges he now faces apparently relate to events after the introduction of the legislation. These should still be valid.

Second, he and the bombers should immediately be charged with the range of conventional Criminal Code offences they should have faced at the outset - murder, arson, conspiracy, etc. These would not be effected by the ban on retrospectivity, as the code existed at the time of the Bali blasts.

Suyitno Landung, head of police criminal investigations, says they are considering this in respect of Bashir but they should do the same for all the bombers. At the trial they could all raise double jeopardy arguments but they would be weak, and the prosecution would almost certainly prevail.

Bashir and the Bali terrorists would never leave jail and the constitution would not need to be mangled to keep them there. The dilemma Indonesia now faces is that in a frantic effort to keep the Bali bombers behind bars, it risks needlessly jeopardising the introduction of constitutional review.

The Bali bombings were a tragedy. It would be another tragedy if Indonesia's fledgling judicial independence - and thus its hard-won reform process - was destroyed so quickly.

The Coalition and Labor need to make a decision. They support the rule of law in Indonesia or they don't. If they do, they should stop pressing the Constitutional Court to reverse or subvert its own decision. If they don't, they should think about the unintended consequences of supporting the Suharto regime through thick and thin from 1965 to 1997.

No-one wants the Bali bombers released and according to this article they can be prosecuted for regular offences under the Criminal Code.

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