An Indonesian court has sentenced the alleged spiritual head of Jemaah Islamiyah, Abu Bakar Bashir to two and a half years in jail for his part in planning the 2002 Bali bombings. The Islamic cleric was cleared of involvement in the 2003 Mariott Hotel bombing in Jakarta, but found guilty of involvement in a "sinister conspiracy" that led to the Bali bombings which killed 202 people.

Presenter/Interviewer: Sen Lam

Speakers: Tim Lindsey, Director, Asian Law Centre, University of Melbourne

Lindsey: The first point is that the charges in relation to the Marriott bombing were always in doubt, because he was in jail for most of the period in question. I mean that doesn't prevent him from having been involved by sending messages. But it's obviously going to be a hard thing to prove his direct involvement in the Marriott attack.

That left them therefore with the Bali attack, and the problem with the Bali attack is of course that the Constitutional Court in Indonesia has already ruled that the anti-terror laws can't apply to the Bali bombing, because they were introduced after the Bali bombing and the Constitution bans retrospective laws.

That meant that the prosecution had no choice but to fall back on the pre-existing criminal code.

Now because no one's suggesting that Abu Bakar Bashir pressed any buttons, therefore the charges to be made against him don't relate to direct involvement, but to issues such as conspiracy, or acting in concert and so forth.

Lam: So effectively, they're convicting him of having met with Amrozi prior to the Bali bombings?

Lindsey: Correct, that's right.

Lam: And of course Abu Bakar Bashir as you mentioned was convicted over the Bali bombings under ordinary criminal legislation?

Lindsey: That's correct, it could not be the terror laws.

Lam: Yes, as opposed to the anti-terror laws brought in after the 2002 Bali attacks. So you're saying that this did make a difference to the outcome?

Lindsey: It certainly did for two reasons. One, it's a lot harder to prove. One of the reasons for introducing the anti-terror laws was to make it easier for the prosecution to prove in particular conspiracy acting in concert and it's particularly hard in Indonesia under the criminal code, the provisions of which are somewhat archaic. So the Bali bomb led to the introduction of anti-terror laws that would make it simpler for the prosecution. Because that couldn't be used in relation to the Bali bombing they had to fall back on some pretty clunky old conspiracy laws that had been outmoded. So yes, it made it much more difficult for the prosecution to prove.

Secondly, the witnesses that they called were pretty unimpressive. In fact a lot of the witnesses effectively recanted so the case was weakened by the inability to use the anti-terror laws and weakened by the unreliability of former JI members giving evidence.

Now the other consequence, is that of course under the criminal code, the penalties are relatively less severe than they could be under the anti-terror laws which are much more draconian.

Lam: Indeed, Australia and the United States have both registered disappointment over the sentence, calling on Indonesian prosecutors to appeal for a long jail term. Do you think the Indonesian courts have been too soft on Bashir?

Lindsey: Well, I don't think the Indonesian courts had that much of a choice. The prosecution itself asked for only eight years, but they could have asked for more, and they sent a pretty strong signal to the court that they were looking for a light sentence. So, yes, I would have thought that somebody who's been found guilty to conspiring in relation to the Bali bombings might get a heavier sentence than two and a half years. But I don't think it's something you can lodge solely with the courts. And for the underlying question of why witnesses are so poor, one of the reasons for that has got to be the fact that many of those who could have given evidence are being detained in other countries and not available to give evidence in Indonesia.

This has been a problem throughout all the trials where America, for example, will not produce witnesses who could have given much more damming evidence than was given. The Indonesian government had requested release of witnesses who are presumably in Guantanamo Bay or elsewhere.

Lam: Do you think its to the credit of the Indonesian government that they refused to hand over Abu Bakar Bashir to the United States authorities and instead decided to try him on Indonesian soil?

Lindsey: Well, why on earth would they hand him over to the United States authorities? Abu Bakar Bashir, if he has been found guilty of conspiring in relation to the Bali bombing, the people who died in the Bali bombing were predominantly Australians and Indonesians. Jemaah Islamiah has killed many more Indonesians than it's killed foreigners.

When they bombed the embassy, who died? Indonesians. When they bombed the Marriott, who died? One foreigner and the rest were Indonesian taxi drivers and doormen.

It's often said that Indonesia is soft on terrorism, but I think we have to think carefully about that claim. Within a couple of weeks of the Bali bombing, they passed anti-terror laws. They've rounded up most of the people responsible for the Bali bombing. They have suspects in relation to the Marriott bombing, the embassy bombings. They believe Abu Bakar Bashir was the figure head. They've tried twice now to try him, both times they've failed on the main charges, but still got convictions in very difficult circumstances where foreign powers will not release witnesses.

The government could do more by making more aggressive statements about Jemaah Islamiah and coming out and banning Jemaah Islamiah. But the fact is, the Indonesian Government is clearly desperate to jail Abu Bakar Bashir and to end Jemaah Islamiah. And I think it's quite inappropriate to suggest their weak on terror. What they are is they have huge institutional problems in dealing with it.