TCS Daily

How Serious Is Indonesia About Prosecuting Islamic Terrorists?

By John McKay - September 20, 2004 12:00 AM

Back in late July, Indonesia's Constitutional Court declared invalid the use of two retrospective anti-terrorism laws to convict 32 Islamic militants over the role in the Bali bombings in 2002. The first law was a catch-all anti-terrorism measure, while the second ruling referred specifically to the Bali atrocities, and this has effectively been annulled. This ruling was based on an opinion that the Constitution outlawed retrospective legislation "under any circumstances". This has reopened debate about just how serious the Indonesian government is about bringing terrorists to justice, a question made all the more pertinent by the recent bomb attack on the Australian embassy in Jakarta. There is a strong desire in Indonesia to deal with the threat of terrorism, but questions about the government's capacity to act.

The position adopted by the Constitutional Court did not come as any surprise, most legal experts having warned the government that t was unwise to rely on new laws rather than using the existing criminal code to prosecute the alleged bombers. It was pointed out that there was ample scope to use the existing statutes on murder and so on, but this advice was ignored, apparently in an attempt to reassure the world that Indonesia was taking the Bali incident and terrorism seriously. Strangely, the government is insisting that the ruling by the Constitutional Court does not invalidate the existing sentences, arguing that the ruling against retrospective legislation only applies in future cases! Sidney Jones of the International Crisis Group, for example, has ridiculed such an idea, arguing that this is still more evidence of government ambivalence over the issue.

There are further problems associated with the trial of perhaps the most important terrorist suspect in Indonesia, the Muslim cleric, Abu Bakar Bashir, who many regard as being the leader of Jemaah Islamiah (JI), the organization behind the Bali bombings. Bashir has been in prison over immigration offences since before the anti-terrorism law was passed. Prosecutors may have to argue that he masterminded terrorism from behind bars. Bashir claims that he gave up active leadership of JI in mid-2000 to devote all of his attention to Majelis Mujahidin Indonesia, which is working for the strict application of Islamic law in the country.

Even more worrying are more general questions about Indonesia's level of commitment to the anti-terrorism fight. It certainly took some time for the government and the general population to take the Bali bombings seriously. As late as a year after Bali it appeared Indonesia was still in denial. There were several factors here. In the absence of any strong message from the government, most Indonesians refused to believe that JI, if it existed at all, was a terrorist group - Jemaah Islamiah means literally "Islamic community" and most citizens denied that Islam was connected to terrorism. Refusals by the United States to give access by Indonesian officials to captured Al Qaeda operatives, notably Riduan Ismuddin (generally known as Hanbali) did not help, and allowed the whole suggestion of Islamic terrorism to be portrayed as a Western plot to discredit Indonesia. This lack of popular feeling against terrorism has encouraged all candidates in the current contest for the Presidency, which will not be decided until the run-off election on September 20, to downplay the problem for fear of alienating Moslem voters. All of the public opinion polls suggest that very few voters regard terrorism as a serious election issue compared with the economy, job creation and corruption.

Questions have also been raised about the effectiveness and impartiality of Indonesia's judicial system. Comprehensive legal reform was undertaken in 2000, including the creation of the Constitutional Court and a separate human rights court, but critics still argue that there is a lack of political will to make these reforms work. New Chief Justice Bagir Manan has expressed frustration with the lack of government and parliamentary attention to his proposed reforms. It is not surprising that the Indonesian elite have little appetite for radical changes that might impose constraints on their actions. The acquittal earlier this year of Akbar Tanjung, a high ranking political figure charged with corruption, has done little to reassure critics.

There are also problems with the security forces. Many people within Indonesia still fear that the military has not given up on its old role in politics. Intelligence Chief Abdullah Mahmud Hendropriyono has been criticized for using strong-arm methods that remind many people of the Suharto regime. Such tactics are particularly unpopular in a nation that is struggling to establish democracy and human rights. The Indonesian authorities regard terrorism in Papua and Aceh provinces as being their top priority, and justify their methods in the name of national security and territorial integrity.

The Indonesian authorities are serious about terrorism -- problems in the provinces of Ache and Papua ensure that. Indonesia has proposed the creation of an ASEAN Peace-keeping Centre with a force on standby to deal with regional problems such as terrorism. But the Indonesian justice and internal security systems simply lack the capacity at present to deal with all the emerging issues. At the same time, suspicions among the populace of any government measures that infringe on newly won freedoms make policy makers doubly wary of taking definitive action. Such dilemmas in newly emerging democracies are not new, but are of increasing relevance.

John McKay is Director of the Australian APEC Study Centre.


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