Jeffrey Winters, Chicago, USA – The real controvery in the recent Constitutional Court decision does not turn on retroactivity. In fact, all the judges (including the five for the majority) reject an absolute interpretation of retroactivity (which the defense team had argued for). And by rejecting an absolute principle of retroactivity, all the judges are very much in line with a key principle in international law going back to the Nuremberg trials – that under certain extraordinary circumstances, persons can be tried under laws that are passed after the commission of a crime.
The truly controversial element of the majority decision is that they opined that the Bali bombing did not constitute an "extraordinary crime" but was rather an "ordinary" crime that was simply horribly brutal. And because the crime itself was deemed ordinary, it did not, in the majority's view, satisfy the conditions or reach the threshhold required to set aside the otherwise important objections to applying laws retroactively.
All the judges agreed that for extraordinary crimes a law can be enforced retroactively, but only the dissenting judges believed that the Bali bombing constituted a sufficiently extraordinary crime.
The five judges in the majority claim that while the Bali bombing was terrible, it is no more terrible than the thousands of Muslim men, women and children killed in Maluku [it is, I believe, significant that they make no mention of Christians being killed as well]. They also say that the Bali attack does not rise to the scale and scope of the mass killing of Jews during WWII. Apart from these examples (and passing references to the Statute of Rome and a 1999 international law, neither of which, they say, specifically mentions terrorism), no argument is made for why the Bali bombing is an ordinary crime, and why those involved should have been tried under ordinary existing laws.
The dissenting judges, meantime, focused on five considerations for retroactivity, but they did a rather poor job in their dissent when taking on the key question: are there or are there not sufficient grounds for viewing the Bali attack as an "extraordinary crime," thus legitimizing the use of laws retroactively? Their tone and their final conclusion make clear, however, that they believe the Bali bombing meets the domestic and international standards of an extraordinary crime.
The judges for the majority decision appear intent on not having the Bali attack be defined as "terrorist," but merely horrible. The reason it is important to avoid such categorization is that there are at least a dozen major international conventions on terrorism going back several decades that treat the sort of crime that occurred in Bali as distinct and indeed extraordinary. The comparison with the many Muslim victims cited in Maluku is weak because terrorist attacks such as we saw in Bali are not intended to harm particular people or groups, but are intended to sow terror. Thus it does not matter to the attackers that Muslims were also killed in a bombing perpetrated by Muslim extremists. The number of people killed or injured is also not the key issue in defining a terrorist act.
The judges went to extraordinary lengths to portray the Bali bombing as "ordinary," which then allowed them to say that retroactivity was therefore unjustified.
A quick note on the judges. Of the four dissenting judges, one is Balinese, one is a Batak, and two received advanced legal training abroad (they are the only two with international legal training on the court). Of the five majority judges, all received exclusively domestic legal training, one is from the TNI, and the rest are Islamic religious conservatives (particularly, Chief Judge Jimmly Asshidique).
Had the majority wanted to, they could easily have opined that the Bali bombs (and other terrorist attacks such as at the Marriott) constituted extraordinary crimes. Numerous international conventions support such an interpretation, and the fact that the Indonesian government passed the terrorist laws after the attacks demonstrates that the country's elected representatives believed that these actions were not merely ordinary murder but a quite distinct and extraordinary kind of crime.
With very little supporting evidence (comparisons etc) and even less legal rationale, the majority chose instead to severely undermine Indonesia's effort to confront the extraordinary crimes being perpetrated.
[Jeffrey Winters, Northwestern University.]