On Friday, July 23, 2004, the Jakarta-based Constitutional Court ruled that the application of Indonesia's 2003 Anti-Terrorism law in the trial and conviction of one of the 33 men found guilty in the Bali Bombing violated the Constitution which expressly prohibits the retroactive enactment of laws.
In a slit 5-4 decision by the panel of judges, Law No. 16/2003 was found to have no application in the October 12, 2002 Bali Bombing that claimed 202 lives. The Court's Chairman, Jimly Asshidique, quoted in the English language Jakarta Post said, "the antiterrorism law is no longer legally binding. We order all parties to implement the decision accordingly."
The decision by the Constitutional Court does not mean any of the convicted participants in the Bali bombing will soon go free but only created an avenue for eventual appeals to be filed by their lawyers.
The decision has opened a legal conundrum likely to occupy jurists, lawyers and politicians in Indonesia for some time to come. Questions now arise as to whether prosecutors in the Bali Bombings made a fatal legal misstep in charging the defendants under the new laws instead of using pre-existing statutes against murder and mayhem. If, for instance, any of those convicted are eventually released from prison then new questions arise regarding the legality of any re-arrest and retrial; a move potentially in conflict with the judicial principle of double jeopardy which prevents a person from being tried twice for the same crime. In the same vein, legal questions arise as to whether the perpetrators – many of whom have freely admitted their involvement in the bombing – could be re-detained under the controversial Anti-Terrorism Law of 2003 which provides the Government with the right to arrest and hold individuals without trial.
The judicial review was prompted by a petition by Masykur Abdul Jailani who was convicted and sentenced to 15 years for his role in the Bali bombings. The five judges accepted the argument of Jailani's lawyers that the application of the 2003 Anti-terrorism law retroactively in his case violated the constitution. In rendering their decision the judge strongly rebuked the Government for enacting new legislation when existing laws would have been sufficient to convict the perpetrators.
The four dissenting judges argued that the overwhelming human losses resulting from the October 2002 bombing justified the retroactive application of the new Anti-terrorism law in the case before them.
Alexander Downer's Reaction
Australian Foreign Minister Alexander Downer was quoted in the Australian press as discounting the likelihood that the Constitutional Courts decision would result in any of the convicted criminals going free.
Downer told the press, "obviously the Indonesian government officials are studying this decision very closely. They don't need a lot of egging on by us to come to the conclusion they themselves have come to, which is they want to make sure that the current sentences stand."
Of the 202 people killed in the bombing of 2002, 88 were Australian nationals.
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