Matthew Moore, Mark Forbes – The Bali bombers may be set free after a ruling from Indonesia's Constitutional Court that the terrorism law used to convict them is illegal.
Australian Foreign Minister Alexander Downer last night said he had contacted Indonesian officials who were also concerned by the ruling that the anti-terrorism law was unconstitutional because it was retrospective
The bombers' lawyers asserted that the court decision in favour of an appeal by an Indonesian who assisted the bombers meant they will all have to face new trials or be set free.
Both the Indonesian and Australian governments were determined the bombers should not be freed, Mr Downer said. "We want those people who have been convicted of the Bali bombing, of killing 88 Australians and in total over 200 people in Bali, we want those convictions to stand.
"If they get overturned on some technicality in an appeal, well in those circumstances we will be working with the Indonesian Government encouraging them to bring fresh charges. We have been talking to them, they don't need any persuasion about this, they don't want to see the Bali bombers released."
Mr Downer said he was sure the bombers would appeal their convictions, but it was not automatic that they would succeed. This was an advisory opinion made in one case, he said.
In a five-four decision, the judges of Indonesia's new Constitutional Court upheld an appeal by Masykur Abdul Kadir, who is serving 15 years for assisting key bomber Imam Samudra, on the grounds that the law used to convict him was retrospective. "...law No. 16 2003 [the terrorism law passed to prosecute the Bali bombers] is against the constitution ... and has no binding legal power," the judges said in their majority verdict. Thirty-two people have been convicted under the law.
The implications of the shock decision are still being assessed by lawyers. But it appears certain that 20 months after the bombings that killed 88 Australians, the convictions of all the bombers have been thrown into doubt. It also seems likely to force reconsideration of the proposed new prosecution of Abu Bakar Bashir, the alleged spiritual leader of the Jemaah Islamiah terror group blamed for the Bali bombings.
Adnan Wirawan – the lawyer for Masykur, for other Bali bombers including Amrozi, and for Bashir – was delighted. "We won today," he said. "The case against Abu Bakar Bashir must now be reviewed."
The father of a Bali bombing victim has pleaded for Prime Minister John Howard to ensure that his son's killers do not escape punishment. Spike Stewart, whose son, Anthony, was killed in Bali, called on the Government to stop giving money to Indonesia until the terrorists are "put away for good".
"John Howard's got to do something," he said. "Something's got to be done. They just can't get away with it."
Opposition foreign affairs spokesman Kevin Rudd said those behind the bombings could not be allowed to go free and pledged bipartisan support to achieve this. A diplomatic and legal solution must be found, he said.
Mr Downer said Indonesian officials were studying the ruling closely to ensure that the current sentences stood. "We can't necessarily conclude the Constitutional Court would come to the same advisory opinion in other cases, although, of course, a lot of the facts may be similar and the arguments put would be similar," Mr Downer said.
The ruling also casts doubt over a series of convictions of soldiers for human rights abuses in East Timor. That ad hoc tribunal and another now prosecuting human rights abuses in the Soeharto era were both created using retrospective legislation. The court said its decision would take effect in 30 days.
Mr Wirawan said he was planning to file an appeal to the Supreme Court using the new evidence of yesterday's decision on behalf of his clients. He said he believed they would now have to be charged under existing criminal law and would have to face new trials if police wanted to keep them in jail. "If there's no new charge, they have to release them," he said.
[With additional reporting by Liz Gooch.]