The Anti-Terrorism Decree enacted by President Megawati Sukarnoputri on 18 October, in the wake of the Bali bombing outrage that killed over 180 people, represents a grave threat to basic rights in Indonesia, says Tapol, the Indonesia Human Rights Campaign.

While the Decree makes no direct reference to the Indonesian armed forces, the TNI, some of its provisions will open the way for the TNI to play a decisive role in identifying individuals to be detained for up to six months without charge or trial and could open the way for a return to the authoritarianism of the Suharto era.

Terrorism is defined in such a way as to include ordinary crimes committed during legitimate political activities and activists in Aceh and West Papua are especially fearful that the decree will be used against them.

"The perpetrators of the Bali atrocity must be brought to justice, and similar outrages must be prevented, but that must not be at the expense of fundamental rights and freedoms," says Carmel Budiardjo of Tapol.

"The grave danger is that this renewed emphasis on internal security will lead to the neglect of pressing issues, such as military and judicial reform, and will allow the security forces to reinforce their political power and influence.

"Moreover, it will divert attention from widespread and systematic acts of state terror, which in the past four decades have claimed thousands of times more victims than the Bali bomb," she said.

Enactment of this Decree means that Indonesia has now agreed to be a part of the Bush Administration's "war on terror". For many months prior to the Bali outrage, Indonesia was under intense pressure from Washington for failing to deal with the danger of terrorism.

The Anti-Terrorism Decree, known as Perpu No 1 or Peraturan Pemerintah Pengganti Undang-Undang RI Nomor 1 Tahun 2002 Tentang Pemberantasan Tindak Pidana Terorisme (Government Decree in Lieu of Law) No 1, 2002, was enacted in great haste by the Megawati government under intense pressure from the international community, especially governments whose citizens had been killed or wounded when a huge bomb ripped through the Sari nightclub in Kuta, Bali on 12 October.

The Decree was enacted because Parliament, the DPR, had failed to agree to an anti-terrorism bill after months of controversy among MPs and vigorous protest from human rights activists. In other words, because the country's supreme legislative body had mounted strong resistance to the Executive's attempts to push through an anti-terrorism law, the bomb outrage of 12 October was used by the Executive to override Parliament and get its way.

The Decree defines terrorists primarily in Article 6 as "Persons who deliberately use violence or the threat of violence to create an atmosphere of terror or spread fear among the general public or create victims on a mass scale by depriving persons of their liberty or their life, or inflict damage or destruction on strategic, vital objects or the living environment or public facilities or international facilities."

The maximum punishments are death or life imprisonment.

While the Decree then goes on to identify a whole range of acts of terrorism such as plane-hijacks and other threats to aircraft, the import of explosives, nuclear weapons and weapons of mass destruction, the broad definition stipulated at the outset encompasses ordinary crimes, such as criminal damage or common assault, which might occur during legitimate political actions such as protests outside mines and energy projects.

By virtue of their status as "vital projects", such assets are routinely given special protection by members of the armed forces. Within twenty-four hours of the Bali bomb outrage, the minister for security and political affairs, General (retired) Susilo Bambang Yudhoyono, announced that armed forces protection of energy and mining operations would be stepped up.

The major enterprises in this category are US corporations, Exxon in Aceh, which drills and exports liquified natural gas (LNG), and Freeport in West Papua, the world's largest copper-and-gold mine. It is precisely in the vicinity of these enterprises that some of the worst human rights violations have occurred because of the presence of the military. British Petroleum is currently in the process of establishing a major LNG project in West Papua where similar abuses may occur.

The Decree specifically provides that "intelligence reports" may be used to initiate a formal investigation. "Intelligence reports" are first and foremost the product of agencies run by the armed forces and the police. According to Munir, one of Indonesia's foremost human rights lawyers, this gives intelligence agencies more power to arrest any suspected terrorist on the basis of preliminary evidence, which would normally be insufficient for charges to be brought. It may amount to no more than a mere suspicion that a person is involved in terrorism.

Indonesia's top intelligence agency is Badan Inteligen Negara (BIN) the State Intelligence Agency, headed by retired Lieutenant-General Hendropriyono who was himself implicated in a grave atrocity against Muslim groups in Lampung in 1987. This highly dangerous provision in the Decree gives BIN and the military a direct and possibly decisive role in identifying suspects and ensuring their arrest and detention.

The decision on whether there is adequate evidence for an investigation to proceed is made by a district court in closed session (Article 26). This removes an important safeguard for suspects, namely the public scrutiny of the investigation process. It is especially disturbing given the power of the investigator to detain a suspect for up to six months without charge or trial (Article 25).

Investigators who have been granted permission by a district court to proceed are given powers to intercept and confiscate the suspect's mail and other communications, and may tap his or her phone so as to monitor possible preparations for an act of terrorism, for a period of up to one year. (Article 31, para 2)

These are worrying departures from the procedures under Indonesia's Criminal Procedure Code, known as KUHAP. The Minister of Justice and Human Rights, Yusril Ihza Mahendra, who, with chief security minister, Susilo Bambang Yudhoyono, had the task of drafting the Decree, argued in the press at the time of the Decree's enactment that KUHAP is inadequate for the purposes of fighting terrorism, but many of Indonesia's leading human rights lawyers have said there was no need for a special Decree. According to them, KUHAP and Indonesia's Penal Code already include the necessary provisions for dealing with terrorist crimes.

Perpu No 1, 2002 means that Indonesia is now pursuing the security approach which was the hallmark of the New Order regime under General Suharto, giving primacy to a wide range of security measures against so-called acts of terrorism while ignoring the pressing need for reform in many areas of government.

It would be more appropriate for the authorities to take steps to establish a properly functioning legal system capable of upholding the rule of law and protecting human rights. The Indonesian justice system is riven by corruption, institutional weaknesses and a lack of protection for individual rights and was described by the UN special rapporteur on the independence of judges and lawyers, during a visit to Indonesia in July this year, as one of the worst he had seen.

The recent acquittals of six army and police officers charged in specially created ad hoc human rights courts with crimes against humanity in East Timor are indicative of the major flaws in the judicial system. The indictments were seen from the start as being seriously deficient and unlikely to secure proportionate verdicts for the officers suspected of being in charge of some of the gravest atrocities in East Timor before, during and after the UN-conducted ballot there in August 1999.

The Decree's inclusion of the death penalty and its retrospective provisions are violations of the fundamental right to life and the right not to be tried and punished for an act which was not a crime at the time it was committed. These rights are supposed to be protected by the Indonesian Constitution.

The Decree avoids the sensitive matter of establishing a special unit or command to oversee implementation but confers powers on the President to "take operational measures for the implementation of the Decree" (Article 45). As many Indonesian commentators have noted, the creation of a special command as part of the Decree would have provoked a wave of anger at the re-appearance of a body reminiscent of Kopkamtib, Suharto's special command for the restoration of security and order, and its successor, Bakorstanas, which held a grip on political life in Indonesia for the thirty-three years of Suharto's New Order.

The composition of the body that President Megawati will set up is not yet known but it will be placed under the overall command of her chief security minister, Susilo Bambang Yudhoyono, and incorporate the armed forces, the Indonesian Police Force and all the leading intelligence agencies.

Tapol believes that Perpu No 1 2002 is a serious setback for human rights in Indonesia. Terrorism is clearly a grave threat to life and limb for all citizens, Indonesian as well as foreign, but Tapol believes that this can only be effectively dealt with by root and branch reforms of the judiciary and the military. The Indonesian government should not allow the Washington sponsored 'war on terror' to force it to compromise Indonesia's faltering advance towards democracy and the rule of law.

Tapol supports the growing tide of criticism of Perpu No 1, 2002 within civil society in Indonesia and call on the international community to urge the government of President Megawati Sukarnoputri to withdraw the Decree.