Bill Guerin, Jakarta – Indonesia's legal system itself is in the dock following the seemingly light sentence given last week to its best-known militant, Muslim cleric Abu Bakar Ba'asyir. On March 4, Ba'asyir was convicted by a Jakarta court to 30 months in jail for his part in the 2002 Bali bombings that killed 202 people. Although the judges said Ba'asyir had masterminded the bombings, they backed down from issuing a harsher sentence and declared that the cleric had "committed the crime of evil conspiracy".

The trial was claimed to have been a test case for Indonesia's judicial attempts to grapple with terrorism, but in the days since the trial ended very few have praised the fact that Ba'asyir was even convicted.

Instead, the light sentence has drawn fire. Within hours of the verdict, Australia's Foreign Minister Alexander Downer, who has described Ba'asyir as a "loathsome creature", said the cleric "without any doubt" had been "a spiritual inspiration to Jemaah Islamiyah in Indonesia" and played a role in the bombings.

The US said it was "disturbed" by the sentence. "We believe these results are not commensurate with Ba'asyir's culpability," US State Department spokesman Richard Boucher said. Prosecutors had produced "substantial evidence [against the cleric], which we found convincing," he added.

Though others might argue over whether the evidence was "convincing", what the US and Australia were really asking was whether the sentence meant Ba'asyir was only a little guilty, or, for the purposes of this mathematical conjecture, only 32% guilty (he was sentenced to 30 months against a prosecution demand of eight years).

Pressure on judges

Chief Judge Soedarto and four other government-appointed judges, all of whom also acted as the jury, are now open to the suspicion that pressure had been exerted on them to tread softly. Were they being careful not to upset Muslim sensitivities? Were they scared for their safety if the punishment they issued was in fact commensurate with the crime?

After all, Supreme Court Judge Syafiuddin Kartasasmita was gunned down in cold blood for making a ruling against powerful playboy Tommy Suharto, the youngest son of former president Suharto. Were they intimidated by the bearded preacher's threats that they would live in "eternal damnation" if they found him guilty? Ba'asyir's reaction to the verdict was to exclaim, "I'm being oppressed by people from abroad and at home. They consider Islamic law to be a shackle and are slaves to immoral behavior. Allah, open their hearts or destroy them!"

Yet such speculation is of little use. The essential point is that this case differs little from most other high-profile cases in Indonesia, where judges are subject to enormous pressure to hand down a politically acceptable ruling. The severity or lightness of the sentence frequently does not match the judges' findings. Often judges will rule in a suspect's favor or deliver a sentence they know is likely to be overturned on appeal.

US and Australian criticism of the sentence is understandable and legitimate, but at the same time Washington's withholding of key witnesses was instrumental in leaving the prosecutors without much of a leg to stand on. Washington's stubborn refusal to allow Indonesian law enforcers to grill top terror suspect Nurjaman Riduan Isamuddin, better known as Hambali, the suspected operations chief for Jemaah Islamiah and the key link to al-Qaeda, is inexplicable. Hambali remains in the hands of US authorities at a secret location following his arrest in Thailand in August 2003.

The sentence, Indonesia may argue, was determined by the weakness of the case – but this differs greatly from judicial proceeding in the US, Australia and other Western countries, where it is the verdict, not the sentence, that depends on the strength/weakness of the case put forward by the state.

A prosecution without evidence

Most commentators agree that it was a mistake for prosecutors to bring Ba'asyir to trial in the first place, given the flimsy evidence and reluctant witnesses they were able to parade before the judges.

A fair assessment of the weight of the evidence is the standard by which cases are judged in most of the Western world, but the best prosecutors came up with was an alleged conversation with convicted Bali bomber Amrozi in 2002.

The prosecution had planned to charge Ba'asyir under articles 14, 15, 17 and 18 of Anti-terrorism Law No 15/2003 for planning, abetting and perpetrating terrorist attacks. He could have faced capital punishment. But plans to seek the death penalty were quickly abandoned after a team of 14 prosecutors failed to come up with sufficient evidence to back the primary charge that Ba'asyir had incited others to commit acts of terrorism and a series of witnesses withdrew testimony or refused to give evidence naming him as the leader of regional terrorism network Jemaah Islamiyah (JI). Prosecutors eventually sought a sentence of only eight years in jail.

Not one witness gave corroborative evidence that Ba'asyir had ordered, or even given his blessing, to the Bali or JW Marriott hotel bombings for which he was charged. Others even reversed their earlier testimony against him.

Ba'asyir's lawyers claimed he could not have been convicted on the weight of this evidence in a criminal court in either Australia or the US. The cleric's lawyers have now lodged an appeal. The appeal, which must be finalized within three months, argues that the verdict was solely based on a police statement purportedly made by another convicted Bali bomber, Mubarak, whose veracity was not proven during the trial.

According to that statement, Mubarak said that at a meeting with Ba'asyir in Solo before the Bali bombing Amrozi asked the cleric: "What if my friends and I hold an event in Bali?" To which Ba'asyir is said to have replied: "It's up to you. You are the ones who know the situation on the ground." Mubarak refused to testify in court, however, and Amrozi wasn't called, forcing prosecutors to rely on Mubarak's statement alone.

Should that great bulwark of democracy, the jury, have been in place, and 12 good and upright citizens listened to the weak argument of the prosecutors, the odds are that Ba'asyir surely would have been declared not guilty. One suspects the court's reliance on sworn testimony based on an overheard conversation would be seen as comical in other circumstances.

"I've all along felt that it was a mistake to put him on trial [again], because I think they haven't got enough evidence," said Harold Crouch, an Indonesia expert at the Australian National University in Canberra.

If the appeal pays off, and the Supreme Court throws out Ba'asyir's conviction, even more scorn will be poured on the Indonesian authorities.

Problems in the legal system

Corruption is the most common focus of attention in discussions regarding Indonesia's legal system. Judicial corruption and corruption in other elements of the legal system – the police force, the attorney general's office, and the legal profession – is widespread. Poor transparency and a lack of professionalism serve only to compound the problem.

Judges, particularly lower court judges, have no protection against powerful and violent defendants, and little incentive to resist the huge bribes such individuals may offer. Lower court judges will often use a technicality to avoid making a ruling that could offend powerful people, or issue a suspended sentence, knowing full well that the defendant will appeal it, and thereby avoid having to hand out any punishment. Throwing a case up to a higher court is a way for judges to avoid condemnation or intimidation.

Indonesia Corruption Watch (ICW) says that because of such rulings the lower courts are almost useless. In almost every case, defendants can appeal, and they are rarely forced to serve out criminal sentences while awaiting the results of the very lengthy appeal process.

Militia leader Eurico Guterres, convicted for crimes against humanity in East Timor, sat out his jail term in very comfortable circumstances. Former Golkar party chairman Akbar Tandjung headed his party, traveled abroad and remained in place as speaker of the parliament despite a graft conviction against him for abusing state funds.

Though judges may accept that their rulings are highly questionable to say the least, legal experts point out that it is usually the only politically or personally expedient ruling they can make, given the prevailing circumstances in the country's legal system.

Jemal-ud-din Kassum, World Bank vice president for East Asia and the Pacific has pointed out that judicial corruption is not a phenomenon unique to Indonesia. International Bar Association (IBA) research shows that it is a worldwide problem.

Reform of Indonesia's judicial and legal institutions has been under way since the onset of democracy in 1999, but law enforcement agencies have been so corrupt for so long that the problem will to take years to remedy. Domestic attention is on the government's political will, or the lack of it, to combat corruption.

A survey by the International Foundation for Election Systems (IFES) released in June last year found that less than 1% of 1,250 respondents nationwide named terrorism as an issue they wanted candidates to address. Combating corruption, reducing inflation and creating jobs were the public's main concerns, according to the poll.

International attention, on the other hand, is more on what implications the verdict could have in the future, particularly with regard to the "war on terror" and bringing extremists to justice.

Terrorist network not banned

It needs to be acknowledged that at least Indonesia – unlike Malaysia and Singapore, for example – has put those accused of terrorism on trial, convicting many and sentencing several to death.

Tim Lindsey, the director of the Asian Law Center at Melbourne University and an Indonesian law expert, summed up the wider dimensions of Indonesia's efforts to date in fighting terrorism: "They [Indonesian authorities] haven't captured everybody, but neither have the US. Where is Osama bin Laden?" Lindsey asked. "It's not perfect, it's pretty wonky, but it's completely untrue to say they have not made a sustained effort," he added.

The evidence presented suggested Ba'asyir was indeed the head of JI, which the authoritative International Crisis Group (ICG) defines as a "network of Islamic radicals extending across Southeast Asia, led by Indonesian nationals". In October 2002 the US declared JI a foreign terrorist group and named Ba'asyir as its spiritual leader.

It is important to note, however, that JI has not been banned in Indonesia, despite president Susilo Bambang Yudhoyono's stated commitment to declare the group an illegal organization should there be "proof" the regional terrorism network exists in Indonesia.

It is clear that a democratic Indonesia, with strong civilian institutions and a strong criminal justice system, will aid in the "war on terrorism", and US assistance for police reform, justice sector reform and civil society strengthening should continue.

The lack of due process for detainees held at Guantanamo Bay, some of them incarcerated without trial for more than two years, before the US Supreme Court curbed the administration of President George W Bush's power to deny them the right to a lawyer, contrasts very sharply with the Indonesian government's stated approach to the rule of law.

Evidence, not hearsay or suspicion, is necessary before authorities can act. When sufficient evidence is available, state prosecutors then decide whether to go to trial. The government does not intervene in decisions to prosecute or become involved in any ensuing trials.

Jakarta's defense of the verdict against foreign criticism was to be expected. The majority of Indonesian media outlets, as well as several national religious and political figures, claimed Australia and the US were trying to intervene in Indonesia's justice system.

Minister of Foreign Affairs chief spokesman Marty Natalegawa said, "The verdict was quite appropriate because it was clearly a matter fully within [Indonesia's] judicial process" as the government, from the beginning, has always adopted a position of respecting the independent judicial process."

At least one recognized international expert, who may have been expected to take a similar view to the US and Australia over the sentence, shares that sentiment.

Only days before the verdict was announced, Sidney Jones, an American analyst from the International Crisis Group (ICG), said, "I think you shouldn't read a light sentence as an indication that the Indonesian government is not doing its job, because I think the case was weak to begin with."

Jones, who is now based in Singapore, is not welcome in Indonesia because of her critical reports on the shortcomings of Indonesia's military and intelligence agencies in dealing with terrorism and their involvement in rights abuses. One report, "The Ngruki Network in Indonesia", which was published in August 2002, is regarded as one of the most definitive pieces of research on the JI.

Implications for the 'war on terror'

The law in Indonesia provides for a right of appeal, sequentially, from a district court to a high court to the Supreme Court. The Supreme Court does not consider factual aspects of a case, but rather the lower court's application of the law.

The process, and its implications, is best illustrated by revisiting the chronology and outcome of earlier attempts to put Ba'asyir behind bars. This latest trial, which started last November, was the second time prosecutors had gone after the defendant.

The 66-year-old cleric was originally arrested a week after the Bali bombings, in October 2002. Before the bombings, police had declared that there was insufficient evidence to question Ba'asyir on suspicion of supporting terrorist activities. That changed when it was discovered that most of the suspected key players and those later convicted in the Bali bombing graduated from his Islamic boarding school, which remains open.

There seems little doubt that Indonesia, under the weak leadership of former president Megawati Sukarnoputri, succumbed to intense pressure from the US, Australia and other foreign countries to get Ba'asyir back in the dock. On his release last April after serving the remaining month of his initial sentence, he was immediately rearrested and held for months without charge under the country's anti-terrorism laws.

Though eventually charged on several counts, including a 1999 plot to assassinate Megawati when she was vice president, the Central Jakarta District Court threw out the case against Ba'asyir for leading JI, brought under anti-subversion laws, due to a lack of evidence. Prosecutors at that time had demanded a sentence of 15 years in jail.

He was, however, sentenced to a four-year prison sentence for document fraud and immigration violations. In November 2003, the high court reduced that sentence to three years, a ruling that the Supreme Court further reduced in March last year to 18 months' imprisonment.

Prosecutors are appealing against Ba'asyir's acquittal on a range of the more serious charges put forth during the latest trial and against the light sentence.

The US sees Indonesia, the world's largest Muslim democracy, as a crucial ally in the "war on terrorism". And while the country's Anti-terror Law No 15/2003, has been described as the world's "softest" law against terrorism, Yudhoyono has said he would keep up pressure on the JI and deal with terrorism firmly.

Like Megawati, however, the president will have to tread carefully so that anti-terrorism efforts are not seen as driven by Western pressure alone, or he may lose the sympathy and support of moderate Muslim opinion and drive them to take a more hardline position.

The continuation of human-rights abuses and a return to the authoritarianism of the past would hand the radicals in Indonesia a victory they could not hope to win otherwise.

Yudhoyono's predecessors – Sukarno, Suharto, B J Habibie, Abdurrahman Wahid and Megawati – have all been up against Islamic extremism. Some 89% of Indonesians are Muslim, most of them moderate, but there has been a surge in radical Islam since the downfall of Suharto in 1998.

As Jones has pointed out, what is needed is technical assistance for the Indonesian forces of law and order to help them work professionally to uncover and investigate terrorist networks in the country. But the problem for Yudhoyono, who has solid Islam credentials, is not how he feels about extremism, it's about how the many Islamic politicians in the fractured parliament will manifest their support, for political gain, for the aspirations of radical Muslims.

Ba'asyir's ultimate fate is an integral part of these difficult and complex considerations, and there will surely be an interface with the Supreme Court. If Ba'asyir were to be treated with an iron fist on appeal, he could become a martyr in Islamic politics. Whatever happens during the appeals process, the government will need to take a stronger stand on Islamic extremism, sooner rather than later.

[Bill Guerin, a Jakarta correspondent for Asia Times Online since 2000, has worked in Indonesia for 19 years in journalism and editorial positions. He has been published by the BBC on East Timor and specializes in business/economic and political analysis in Indonesia.]