Todung Mulya Lubis – The Bali tragedy, which killed over 190 people and wounded countless others, has finally jolted the government into admitting the existence of terrorism in Indonesia.
Various cities throughout Indonesia had previously been struck by a series of terrorist attacks prior to the Bali bombing, but these attacks were not considered dangerous and were not taken seriously. Although a number of suspects were caught, tried and even imprisoned in connection to these bombings, the brains behind the planning and organization remains a mystery.
Consequently, the Indonesian public has become apathetic towards the country's seemingly paralyzed police force. Anxiety has become a permanent part of our lives. Indonesia's law enforcement authorities are receiving international assistance, but this does not guarantee that the Bali attack will be solved. The current national and international political climate, characterized by suspicion, tension and conflicting interests, will make the Bali tragedy even more difficult to solve.
Consequently, fears are rife that the Bali bombing will become yet another murky chapter in Indonesia's history. Conspiracy theorists have already directed premature accusations against the CIA and the Al Qaeda network. Some observers blame weak legislation for the failure of Indonesia's law enforcement authorities to solve the series of bomb attacks. The government itself complained that the Criminal Code (KUHP) does not provide law enforcement authorities with the legal grounds necessary to investigate and catch terrorists.
It was hoped that new legislative provisions would help loosen the paralysis that Indonesia's police and intelligence have experienced in fighting terrorism over the past four years. The government has issued two regulations intended to help crack down on terrorism. Government Regulation No. 1/2002 on Eliminating Criminal Acts of Terror serves as a general guideline for fighting terrorists. Government Regulation No. 2/2002 allows for the principle of retroactivity to be applied to the Bali bombing case.
It is sad that the Indonesian Government needed a tragedy of the magnitude of the Bali bombing to formulate the legal grounds required to investigate, track down and take action against terrorists. However, the new regulations beg the question of whether the KUHP and the Criminal Code Procedures (KUHAP) are capable of dealing with terrorism. Any scholar of Indonesian law understands that the KUHP and KUHAP do provide the legal grounds required to conduct investigations into the bombing. The failure of law enforcement authorities to solve the series of bomb attacks that struck the nation could be attributed to procrastination by government officials in taking action against terrorism.
The range of premature accusations could also be attributed to the government's lack of a strong political will to eliminate terrorism and conflicting interests within its ranks. It is ironic that government officials continue to openly debate the presence of terrorism in this country after hundreds of people have been killed and numerous others wounded by terrorist bombings.
Is this not the true cause of the police and intelligence forces' reluctance to take action? Assuming that the KUHP and KUHAP do not provide strong legal grounds for fighting terrorism, do the new anti-terrorism regulations fill this gap? The anti-terrorism regulations empower security forces to undertake immediate steps to eliminate terrorism, including arresting and detaining terrorist suspects for six months based on intelligence reports as prima facie evidence.
Such reports may originate from the offices of police intelligence, the Attorney General's Office (AGO), immigration and customs department, Indonesian Military, State Intelligence Agency (BIN), Ministry of Home Affairs, Ministry of Foreign Affairs, or other intelligence sources from various government agencies.
We can imagine just how easy it will be to arrest someone under these provisions, and how easily security forces could abuse the powers given to them under these regulations. Indeed, intelligence reports used as prima facie evidence must first be approved by a district court chairperson within seven days. However, it is difficult to imagine that Indonesia's courts will maintain their judicial independence on such matters. It is also questionable whether our judges have been trained to decipher intelligence reports and decide whether such reports constitute prima facie evidence.
Therefore, although a district court must first approve any intelligence-based evidence, we are only slightly better off than during the New Order regime when Indonesia's public suffered at the hands of the anti-subversion laws. The majority of Indonesia's public support the fight against terrorism as well as the non-negotiable principle of prioritizing the national interest. However, it is our duty to remind the government that fighting terrorism should not come at the cost of violating our basic human rights, or the legal rights of suspects being investigated.
The tendency of authorities to corruption makes this a very real danger. This can happen anywhere. In the United States, criticism has been directed at President Bush's policies for compromising the basic rights of suspects based on the raison d'etre that the United States is fundamentally based on the principle of respect for basic human rights.
Although the American public supports the fight against terrorism, many people object to the victimization of innocent people in the name of eliminating terrorism. One incident, reported in the International Herald Tribune on June 13, 2002, concerned Syrian-born taxi driver, Nabil Amarabh in Boston, America. Security forces detained Nabil for eight months on charges of terrorism before he was allowed to meet with a defense counsel and a judge. Even if Nabil were guilty, his right to obtain immediate legal assistance should not have been hampered.
A similar fate could happen to anyone in Indonesia. The anti-terrorism regulations empower authorities to arrest individuals and freeze the assets of those individuals and corporations not only suspected of involvement in terrorist acts, but also suspected of providing funding assistance to terrorists, concealing information or providing any other form of assistance to terrorists.
These provisions can be interpreted very broadly and reopen the door for security forces to use repression and promote a culture of fear. Who can guarantee that the regulations will not be abused to convict innocent persons who may have somehow "assisted" terrorists? And who can guarantee that the provisions will not be abused to detain anyone who poses a threat to the political authorities?
Security forces now have six months to manufacture means to convict their enemies. Perhaps authorities may decide to release an arrested suspect after brainwashing them. Pessimists believe that the anti-terrorism regulations spell the beginning of an authoritarian government, following the path set by President Bush.
An international agreement to declare war on terrorism may unwittingly open the door to increased military power, which was kept in check by civil supremacy during the reformasi period. Once again, the United States has pledged military assistance to Indonesia, despite objections from several members of Congress and the US Senate.
Criticizing the anti-terrorism regulations is interpreted as opposing the fight against terrorism. It must be reiterated that the majority of the Indonesian public agree with every endeavor to eliminate terrorism. But giving birth to a new legal paradigm containing repressive elements will merely stifle the seeds of democracy that have begun to grow in Indonesia.
If the government feels that the KUHP and KUHAP do not provide the strong legal grounds required to combat terrorism, they can add new articles to them to fill in the gaps. The government could also ratify the various United Nations conventions on eliminating terrorism, such as the International Convention for the Suppression of Terrorist Bombings (1977) and the International Convention for the Suppression of the Financing of Terrorism (1999). Empowering the existing national legal framework and ratifying international conventions will allow the government to fight terrorism but also prevent the rebirth of an authoritarian government.
Indonesia's success in eliminating terrorism depends on the political will and determination of government officials and authorities to take concrete steps in fighting terrorism. We should not assume that Government Regulation No. 1/2002 will do this for them. Rather, the new regulations merely open the door to a dangerous rebirth of authoritarian government and, for this reason, they must be rejected.
[Todung Mulya Lubis is the president of the Regional Council of Human Rights in Asia].