Australian Prime Minister Vows to Pressure Indonesia to Bring Bali Bombers to Task

Producer: Bharati Jagdish
First broadcast: 25 August 04, Radio Singapore International

Prime Minister John Howard has said that Australia would leave no stone unturned in pushing Indonesia to lay fresh charges against a militant after he was acquitted of involvement in the Bali bombings which took place in 2002.

Jhoni Hendrawan, alias Idris, was sentenced on Tuesday to 10 years in jail for last year's bombing of the JW Marriott Hotel in Jakarta, but was acquitted on a terrorism charge related to the Bali blasts that resulted in the death of 202 people, most of whom were Australians.

In acquitting Idris, the Indonesian court cited a Constitutional Court decision last month that prohibited the retroactive application of the anti-terror law used to charge him.

The law had been enacted after the Bali bombing.

According to analysts, Australians in general are disappointed with the court's decision to acquit the self-confessed conspirator, as it could mean that all 32 militants previously convicted of involvement in the Bali bombings could ultimately be acquitted on appeal.

For more on this, Bharati Jagdish (BJ) spoke to political analyst, Dr Damien Kingsbury (DK) from the Deakin University in Australia.

DK: "The concern in Australia is very significant and there's a great deal of anger and a public expression of disbelief in this decision. This comes back to the nature of the decision by the Constitutional Court last month in which it decided that retroactivity couldn't apply. In cases of ordinary crime, that decision would be okay, but in cases of crimes against humanity under international convention such as the Nuremberg Principle, retroactivity does apply because, primae facie, the crime being committed at the time would have been obvious to the person committing it. But the court deemed on a 5-4 majority that the Bali bombing was not a crime against humanity, that it was an ordinary crime and hence the retroactivity couldn't apply."

BJ: So you're saying that it should apply and that the Constitutional Court made the wrong decision?

DK: "Well, it depends on how you define "crimes against humanity" and "ordinary crimes". Presumably, a single attack which killed 202 people would be considered broadly to comply with the definition of "crimes against humanity" as it has applied in Bosnia and in Rwanda. That would be a conventional definition. The problem is that the judges who made the decision said that because laws on crimes against humanity hadn't been applied to the Ambon cases in which Muslims were killed, those laws should not be applied in the Bali bombing case as well. The judges claim it was a similar type of crime and in that respect, my opinion is that it's a very poor decision."

BJ: Would it be fair now to expect that all the 32 militants that have been convicted of involvement in the Bali bombings would be able to get their convictions overturned on appeal based on the precedent that Idris's case has set?

DK: "Yes, that's a fair statement. The others can now appeal their own convictions by saying that under Indonesian law, they should never have been charged, much less convicted of that particular crime. This raises a couple of other issues one of which is why these people weren't simply charged with murder and conspiracy to commit murder because they certainly would have been convicted of those crimes and the sentences would have been exactly the same."

BJ: Just today, Indonesian prosecutors charged prominent Muslim cleric Abu Bakar Bashir, under the anti-terror laws, over last year's attack on the Marriott Hotel in Jakarta. This was after an appeal court last year cleared him of terror links. But he was re-arrested after serving some time for immigration-related offences. Doesn't the fact that they have now charged him again for his alleged involvement in last year's bombing show that Indonesian authorities are determined to get to the bottom of terrorism and apprehend its perpetrators?

DK: "Indonesia is certainly under significant international pressure to see that these cases are prosecuted. But having said that, there's no universality of opinion on this in Indonesia. Politicians, at the moment, are very reluctant to push the case too strongly because this is election period and nobody wants to alienate the Muslim vote and if you look at the backgrounds of the Constitutional Court judges and who voted which way, you would notice that those who voted against applying retroactivity to the Bali case were Muslims. It really does appear that the decision was not based on legal principles but on religious preferences."

BJ: But is there some procedure for reversing the Constitutional Court decision on the retroactivity issue if, say, the political establishment in Indonesia wants to do so at some time in the future?

DK: "Well, that would really require a further decision which overturns the decision of the Constitutional Court. It would probably require a legislative provision and that certainly can't happen before the end of October when the new legislative assembly is formed. But even then, it's probably very unlikely to happen anyway because such a decision would be very, very controversial in the Indonesian political context keeping in mind that approximately 90 percent of the population is Muslim."

BJ: Now, Prime Minister John Howard has said that he would apply "legitimate pressure" on Indonesia to make sure that the militants remain in jail and fully accountable before the law. What can Australia really do at this point?

DK: "Well, in practical terms, not very much beyond diplomatic representations. There would be discussions with Indonesia's Justice Minister, or perhaps with other ministers, but the real question is are they likely to achieve any practical outcome, and at this stage, I would suggest that they would be unlikely to do so."