Leonard C. Sebastian – The Indonesian government has responded to the Bali bombing by issuing two anti-terrorism regulations generally modelled on Canada's anti-terrorism legislation Bill C-36.
Indonesians support the initiative, but are at the same time wary of their abuse, as happened to subversion and state emergency laws during former president Suharto's regime. The 1999 State Security Law issued by then president B.J. Habibie was similarly never enforced due to strong public opposition. What are the new regulations?
They are not an emergency decree as often stated in the popular press, but a government regulation in lieu of a law (Perpu, Peraturan Pemerintah Penganti Undang Undang). The House of Representatives (DPR) is still debating the anti-terrorism Bill, so President Megawati Sukarnoputri has the authority to issue government regulations in lieu of laws during a state of emergency based on Article 22 of the 1945 Constitution.
The regulations provide a legal basis for the security agencies to investigate and prevent acts of terrorism and are consistent with United Nations Security Council Resolution No 1373 (2001). They demarcate categories of terrorist acts, give broader powers to law enforcers and intelligence agencies to take specific measures, and include a retroactive principle. They fill the legal vacuum until DPR deliberations for a formal anti-terrorism Bill are concluded.
The existing Indonesian Criminal Code and the Criminal Procedures Code give law enforcers limited scope for action. The new regulations allow the death penalty for those convicted of committing or threatening to commit acts of terrorism resulting in mass destruction and deaths.
Unlike an earlier and now withdrawn anti-terrorism Bill, it does not define terrorism as a political crime based on political motives. Membership of a suspect group is not itself grounds for suspicion of involvement in terrorism. Neither is espousal of its views or ideology. The regulations enable police to detain suspects for three days on a lower threshold of evidence, but also provide important protection for the rights of the suspect and the accused through the involvement of the judiciary.
They enable the government to form anti-terror teams consisting of various departments, including the Indonesian military (TNI) and police, to conduct wide-ranging intelligence operations. The results of intelligence operations may be used as prima facie legal evidence after being approved by a court of law, with approval taking no longer than three days.
While a certain degree of coherence is emerging, the principal concern is whether momentum can be sustained. The biggest question mark remains the implementation of the regulations. Indonesia's Achilles' heel will be its weak and rivalry-riven intelligence mechanism, and its corrupt and politically-influenced judiciary.
Even if the law enforcement agencies can assemble credible evidence, the good work can be undone during court proceedings if prosecutors do not have a professional commitment to upholding the law. A repeat of the East Timor tribunals, where the state lost most of its cases, would further compromise the credibility of an already dysfunctional legal system.
The new regulations also contain loopholes that raise complicated questions. Article 46, for instance, provides for retroactive application, in apparent contradiction to Article 28I in the amended 1945 Constitution, which stipulates that citizens may not be prosecuted retroactively. While legal experts acknowledge the need for a retroactive principle to specifically tackle the Bali bombings, they remain unclear whether this sets a precedent. Many previous acts of terror in the country remain unsolved. The Istiqlal Mosque bombing in 1978 and Gedung Seminari Alkitab in Malang in 1984 remain unresolved, as well as widespread abductions and terror tactics directed at anti-Suharto activists. Human rights activists argue that victims of these atrocities also need justice.
The government is in a conundrum. Does the retroactive principle go against the amended 1945 Constitution? If so, should the Constitution be changed to overcome this anomaly? Is the retroactive principle a breakthrough that should be implemented to try perpetrators of terror attacks during the rule of former president Suharto?
Expect a protracted debate to ensue between human rights activists and constitutional law experts when the DPR convenes. Despite the government's assurances, concern remains over how much power should be conceded to the government and the police (with the military as the supporting force) in fighting terrorism.
Hard-line Muslim leaders warn that the authorities will misuse these powers. They point to the arrest of militant cleric Abu Bakar Bashir, but this is mistaken as he was arrested under the Criminal Code.
Non-government organisations argue that terrorism allegations, which derive largely from US sources, could be used by the military for its own agenda, either to improve its relationship with the US, or as an opportunity to revive its political role, which it had during Mr Suharto's regime.
These concerns are unfounded for now. During Mr Suharto's New Order era, the security institutions had absolute authority to act against those found or suspected of disturbing security and order. The powerful institution called Kopkamtib (Operational Command for the Restoration of Security and Order) was set up to underwrite the law.
Today's new anti-terrorism regulations are not a blank cheque. They deal with terrorism-related issues only. The security agencies are not granted special powers to enforce the regulations. In addition, the regulations can be repealed when the DPR passes the anti-terrorist law. Under the amended 1945 Constitution, a regulation in lieu of law issued by the government can come into effect immediately upon its issuance. But if the House rejects it in the next session, it must be withdrawn.
President Megawati staked her credibility by issuing the regulations. It could be a costly move if the latter get thrown out by the DPR. By issuing the regulations, Indonesia signalled its desire to respect international law while trying to protect its fledgling democracy.
Its belated entry into the war on terror will come as a relief to South-east Asia, which faces the immense challenge of preventing terrorism from sinking roots so deep that the region turns into a permanent second front.
[The writer is a senior fellow at the Institute of Defence and Strategic Studies at Nanyang Technological University. He contributed this comment to The Straits Times.]