[list_indonesia] [ppiindia] Indonesia's trial by terror
- From: "Ambon" <sea@xxxxxxxxxx>
- To: <"Undisclosed-Recipient:;"@freelists.org>
- Date: Sat, 12 Mar 2005 10:48:18 +0100
** Mailing-List Indonesia Nasional Milis PPI-India www.ppi-india.da.ru **
http://www.atimes.com/atimes/Southeast_Asia/GC12Ae06.html
Mar 12, 2005
Indonesia's trial by terror
By Bill Guerin
JAKARTA - Indonesia's legal system itself is in the dock following the
seemingly light sentence given last week to its best-known militant, Muslim
cleric Abu Bakar Ba'asyir. On March 4, Ba'asyir was convicted by a Jakarta
court to 30 months in jail for his part in the 2002 Bali bombings that
killed 202 people. Although the judges said Ba'asyir had masterminded the
bombings, they backed down from issuing a harsher sentence and declared that
the cleric had "committed the crime of evil conspiracy".
The trial was claimed to have been a test case for Indonesia's judicial
attempts to grapple with terrorism, but in the days since the trial ended
very few have praised the fact that Ba'asyir was even convicted.
Instead, the light sentence has drawn fire. Within hours of the verdict,
Australia's Foreign Minister Alexander Downer, who has described Ba'asyir as
a "loathsome creature", said the cleric "without any doubt" had been "a
spiritual inspiration to Jemaah Islamiyah in Indonesia" and played a role in
the bombings.
The US said it was "disturbed" by the sentence. "We believe these results
are not commensurate with Ba'asyir's culpability," US State Department
spokesman Richard Boucher said. Prosecutors had produced "substantial
evidence [against the cleric], which we found convincing," he added.
Though others might argue over whether the evidence was "convincing", what
the US and Australia were really asking was whether the sentence meant
Ba'asyir was only a little guilty, or, for the purposes of this mathematical
conjecture, only 32% guilty (he was sentenced to 30 months against a
prosecution demand of eight years).
Pressure on judges
Chief Judge Soedarto and four other government-appointed judges, all of whom
also acted as the jury, are now open to the suspicion that pressure had been
exerted on them to tread softly. Were they being careful not to upset Muslim
sensitivities? Were they scared for their safety if the punishment they
issued was in fact commensurate with the crime?
After all, Supreme Court Judge Syafiuddin Kartasasmita was gunned down in
cold blood for making a ruling against powerful playboy Tommy Suharto, the
youngest son of former president Suharto. Were they intimidated by the
bearded preacher's threats that they would live in "eternal damnation" if
they found him guilty? Ba'asyir's reaction to the verdict was to exclaim,
"I'm being oppressed by people from abroad and at home. They consider
Islamic law to be a shackle and are slaves to immoral behavior. Allah, open
their hearts or destroy them!"
Yet such speculation is of little use. The essential point is that this case
differs little from most other high-profile cases in Indonesia, where judges
are subject to enormous pressure to hand down a politically acceptable
ruling. The severity or lightness of the sentence frequently does not match
the judges' findings. Often judges will rule in a suspect's favor or deliver
a sentence they know is likely to be overturned on appeal.
US and Australian criticism of the sentence is understandable and
legitimate, but at the same time Washington's withholding of key witnesses
was instrumental in leaving the prosecutors without much of a leg to stand
on. Washington's stubborn refusal to allow Indonesian law enforcers to grill
top terror suspect Nurjaman Riduan Isamuddin, better known as Hambali, the
suspected operations chief for Jemaah Islamiah and the key link to al-Qaeda,
is inexplicable. Hambali remains in the hands of US authorities at a secret
location following his arrest in Thailand in August 2003.
The sentence, Indonesia may argue, was determined by the weakness of the
case - but this differs greatly from judicial proceeding in the US,
Australia and other Western countries, where it is the verdict, not the
sentence, that depends on the strength/weakness of the case put forward by
the state.
A prosecution without evidence
Most commentators agree that it was a mistake for prosecutors to bring
Ba'asyir to trial in the first place, given the flimsy evidence and
reluctant witnesses they were able to parade before the judges.
A fair assessment of the weight of the evidence is the standard by which
cases are judged in most of the Western world, but the best prosecutors came
up with was an alleged conversation with convicted Bali bomber Amrozi in
2002.
The prosecution had planned to charge Ba'asyir under articles 14, 15, 17 and
18 of Anti-terrorism Law No 15/2003 for planning, abetting and perpetrating
terrorist attacks. He could have faced capital punishment. But plans to seek
the death penalty were quickly abandoned after a team of 14 prosecutors
failed to come up with sufficient evidence to back the primary charge that
Ba'asyir had incited others to commit acts of terrorism and a series of
witnesses withdrew testimony or refused to give evidence naming him as the
leader of regional terrorism network Jemaah Islamiyah (JI). Prosecutors
eventually sought a sentence of only eight years in jail.
Not one witness gave corroborative evidence that Ba'asyir had ordered, or
even given his blessing, to the Bali or JW Marriott hotel bombings for which
he was charged. Others even reversed their earlier testimony against him.
Ba'asyir's lawyers claimed he could not have been convicted on the weight of
this evidence in a criminal court in either Australia or the US. The
cleric's lawyers have now lodged an appeal. The appeal, which must be
finalized within three months, argues that the verdict was solely based on a
police statement purportedly made by another convicted Bali bomber, Mubarak,
whose veracity was not proven during the trial.
According to that statement, Mubarak said that at a meeting with Ba'asyir in
Solo before the Bali bombing Amrozi asked the cleric: "What if my friends
and I hold an event in Bali?" To which Ba'asyir is said to have replied:
"It's up to you. You are the ones who know the situation on the ground."
Mubarak refused to testify in court, however, and Amrozi wasn't called,
forcing prosecutors to rely on Mubarak's statement alone.
Should that great bulwark of democracy, the jury, have been in place, and 12
good and upright citizens listened to the weak argument of the prosecutors,
the odds are that Ba'asyir surely would have been declared not guilty. One
suspects the court's reliance on sworn testimony based on an overheard
conversation would be seen as comical in other circumstances.
"I've all along felt that it was a mistake to put him on trial [again],
because I think they haven't got enough evidence," said Harold Crouch, an
Indonesia expert at the Australian National University in Canberra.
If the appeal pays off, and the Supreme Court throws out Ba'asyir's
conviction, even more scorn will be poured on the Indonesian authorities.
Problems in the legal system
Corruption is the most common focus of attention in discussions regarding
Indonesia's legal system. Judicial corruption and corruption in other
elements of the legal system - the police force, the attorney general's
office, and the legal profession - is widespread. Poor transparency and a
lack of professionalism serve only to compound the problem.
Judges, particularly lower court judges, have no protection against powerful
and violent defendants, and little incentive to resist the huge bribes such
individuals may offer. Lower court judges will often use a technicality to
avoid making a ruling that could offend powerful people, or issue a
suspended sentence, knowing full well that the defendant will appeal it, and
thereby avoid having to hand out any punishment. Throwing a case up to a
higher court is a way for judges to avoid condemnation or intimidation.
Indonesia Corruption Watch (ICW) says that because of such rulings the lower
courts are almost useless. In almost every case, defendants can appeal, and
they are rarely forced to serve out criminal sentences while awaiting the
results of the very lengthy appeal process.
Militia leader Eurico Guterres, convicted for crimes against humanity in
East Timor, sat out his jail term in very comfortable circumstances. Former
Golkar party chairman Akbar Tandjung headed his party, traveled abroad and
remained in place as speaker of the parliament despite a graft conviction
against him for abusing state funds.
Though judges may accept that their rulings are highly questionable to say
the least, legal experts point out that it is usually the only politically
or personally expedient ruling they can make, given the prevailing
circumstances in the country's legal system.
Jemal-ud-din Kassum, World Bank vice president for East Asia and the Pacific
has pointed out that judicial corruption is not a phenomenon unique to
Indonesia. International Bar Association (IBA) research shows that it is a
worldwide problem.
Reform of Indonesia's judicial and legal institutions has been under way
since the onset of democracy in 1999, but law enforcement agencies have been
so corrupt for so long that the problem will to take years to remedy.
Domestic attention is on the government's political will, or the lack of it,
to combat corruption.
A survey by the International Foundation for Election Systems (IFES)
released in June last year found that less than 1% of 1,250 respondents
nationwide named terrorism as an issue they wanted candidates to address.
Combating corruption, reducing inflation and creating jobs were the public's
main concerns, according to the poll.
International attention, on the other hand, is more on what implications the
verdict could have in the future, particularly with regard to the "war on
terror" and bringing extremists to justice.
Terrorist network not banned
It needs to be acknowledged that at least Indonesia - unlike Malaysia and
Singapore, for example - has put those accused of terrorism on trial,
convicting many and sentencing several to death.
Tim Lindsey, the director of the Asian Law Center at Melbourne University
and an Indonesian law expert, summed up the wider dimensions of Indonesia's
efforts to date in fighting terrorism: "They [Indonesian authorities]
haven't captured everybody, but neither have the US. Where is Osama bin
Laden?" Lindsey asked. "It's not perfect, it's pretty wonky, but it's
completely untrue to say they have not made a sustained effort," he added.
The evidence presented suggested Ba'asyir was indeed the head of JI, which
the authoritative International Crisis Group (ICG) defines as a "network of
Islamic radicals extending across Southeast Asia, led by Indonesian
nationals". In October 2002 the US declared JI a foreign terrorist group and
named Ba'asyir as its spiritual leader.
It is important to note, however, that JI has not been banned in Indonesia,
despite president Susilo Bambang Yudhoyono's stated commitment to declare
the group an illegal organization should there be "proof" the regional
terrorism network exists in Indonesia.
It is clear that a democratic Indonesia, with strong civilian institutions
and a strong criminal justice system, will aid in the "war on terrorism",
and US assistance for police reform, justice sector reform and civil society
strengthening should continue.
The lack of due process for detainees held at Guantanamo Bay, some of them
incarcerated without trial for more than two years, before the US Supreme
Court curbed the administration of President George W Bush's power to deny
them the right to a lawyer, contrasts very sharply with the Indonesian
government's stated approach to the rule of law.
Evidence, not hearsay or suspicion, is necessary before authorities can act.
When sufficient evidence is available, state prosecutors then decide whether
to go to trial. The government does not intervene in decisions to prosecute
or become involved in any ensuing trials.
Jakarta's defense of the verdict against foreign criticism was to be
expected. The majority of Indonesian media outlets, as well as several
national religious and political figures, claimed Australia and the US were
trying to intervene in Indonesia's justice system.
Minister of Foreign Affairs chief spokesman Marty Natalegawa said, "The
verdict was quite appropriate because it was clearly a matter fully within
[Indonesia's] judicial process" as the government, from the beginning, has
always adopted a position of respecting the independent judicial process."
At least one recognized international expert, who may have been expected to
take a similar view to the US and Australia over the sentence, shares that
sentiment.
Only days before the verdict was announced, Sidney Jones, an American
analyst from the International Crisis Group (ICG), said, "I think you
shouldn't read a light sentence as an indication that the Indonesian
government is not doing its job, because I think the case was weak to begin
with."
Jones, who is now based in Singapore, is not welcome in Indonesia because of
her critical reports on the shortcomings of Indonesia's military and
intelligence agencies in dealing with terrorism and their involvement in
rights abuses. One report, "The Ngruki Network in Indonesia", which was
published in August 2002, is regarded as one of the most definitive pieces
of research on the JI.
Implications for the 'war on terror'
The law in Indonesia provides for a right of appeal, sequentially, from a
district court to a high court to the Supreme Court. The Supreme Court does
not consider factual aspects of a case, but rather the lower court's
application of the law.
The process, and its implications, is best illustrated by revisiting the
chronology and outcome of earlier attempts to put Ba'asyir behind bars. This
latest trial, which started last November, was the second time prosecutors
had gone after the defendant.
The 66-year-old cleric was originally arrested a week after the Bali
bombings, in October 2002. Before the bombings, police had declared that
there was insufficient evidence to question Ba'asyir on suspicion of
supporting terrorist activities. That changed when it was discovered that
most of the suspected key players and those later convicted in the Bali
bombing graduated from his Islamic boarding school, which remains open.
There seems little doubt that Indonesia, under the weak leadership of former
president Megawati Sukarnoputri, succumbed to intense pressure from the US,
Australia and other foreign countries to get Ba'asyir back in the dock. On
his release last April after serving the remaining month of his initial
sentence, he was immediately rearrested and held for months without charge
under the country's anti-terrorism laws.
Though eventually charged on several counts, including a 1999 plot to
assassinate Megawati when she was vice president, the Central Jakarta
District Court threw out the case against Ba'asyir for leading JI, brought
under anti-subversion laws, due to a lack of evidence. Prosecutors at that
time had demanded a sentence of 15 years in jail.
He was, however, sentenced to a four-year prison sentence for document fraud
and immigration violations. In November 2003, the high court reduced that
sentence to three years, a ruling that the Supreme Court further reduced in
March last year to 18 months' imprisonment.
Prosecutors are appealing against Ba'asyir's acquittal on a range of the
more serious charges put forth during the latest trial and against the light
sentence.
The US sees Indonesia, the world's largest Muslim democracy, as a crucial
ally in the "war on terrorism". And while the country's Anti-terror Law No
15/2003, has been described as the world's "softest" law against terrorism,
Yudhoyono has said he would keep up pressure on the JI and deal with
terrorism firmly.
Like Megawati, however, the president will have to tread carefully so that
anti-terrorism efforts are not seen as driven by Western pressure alone, or
he may lose the sympathy and support of moderate Muslim opinion and drive
them to take a more hardline position.
The continuation of human-rights abuses and a return to the authoritarianism
of the past would hand the radicals in Indonesia a victory they could not
hope to win otherwise.
Yudhoyono's predecessors - Sukarno, Suharto, B J Habibie, Abdurrahman Wahid
and Megawati - have all been up against Islamic extremism. Some 89% of
Indonesians are Muslim, most of them moderate, but there has been a surge in
radical Islam since the downfall of Suharto in 1998.
As Jones has pointed out, what is needed is technical assistance for the
Indonesian forces of law and order to help them work professionally to
uncover and investigate terrorist networks in the country. But the problem
for Yudhoyono, who has solid Islam credentials, is not how he feels about
extremism, it's about how the many Islamic politicians in the fractured
parliament will manifest their support, for political gain, for the
aspirations of radical Muslims.
Ba'asyir's ultimate fate is an integral part of these difficult and complex
considerations, and there will surely be an interface with the Supreme
Court. If Ba'asyir were to be treated with an iron fist on appeal, he could
become a martyr in Islamic politics. Whatever happens during the appeals
process, the government will need to take a stronger stand on Islamic
extremism, sooner rather than later.
Bill Guerin, a Jakarta correspondent for Asia Times Online since 2000, has
worked in Indonesia for 19 years in journalism and editorial positions. He
has been published by the BBC on East Timor and specializes in
business/economic and political analysis in Indonesia.
(Copyright 2005 Asia Times Online Ltd. All rights reserved. Please contact
us for information on sales, syndication and republishing.)
------------------------ Yahoo! Groups Sponsor --------------------~-->
Take a look at donorschoose.org, an excellent charitable web site for
anyone who cares about public education!
http://us.click.yahoo.com/O.5XsA/8WnJAA/E2hLAA/BRUplB/TM
--------------------------------------------------------------------~->
***************************************************************************
Berdikusi dg Santun & Elegan, dg Semangat Persahabatan. Menuju Indonesia yg
Lebih Baik, in Commonality & Shared Destiny. www.ppi-india.uni.cc
***************************************************************************
__________________________________________________________________________
Mohon Perhatian:
1. Harap tdk. memposting/reply yg menyinggung SARA (kecuali sbg otokritik)
2. Pesan yg akan direply harap dihapus, kecuali yg akan dikomentari.
3. Lihat arsip sebelumnya, www.ppi-india.da.ru;
4. Satu email perhari: ppiindia-digest@xxxxxxxxxxxxxxx
5. No-email/web only: ppiindia-nomail@xxxxxxxxxxxxxxx
6. kembali menerima email: ppiindia-normal@xxxxxxxxxxxxxxx
Yahoo! Groups Links
<*> To visit your group on the web, go to:
http://groups.yahoo.com/group/ppiindia/
<*> To unsubscribe from this group, send an email to:
ppiindia-unsubscribe@xxxxxxxxxxxxxxx
<*> Your use of Yahoo! Groups is subject to:
http://docs.yahoo.com/info/terms/
** Mailing-List Indonesia Nasional Milis PPI-India www.ppi-india.uni.cc **
Other related posts:
- » [list_indonesia] [ppiindia] Indonesia's trial by terror
