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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 sentenced 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 Sidney Jones, an American analyst from the
International Crisis Group (ICG), told a US House of Representatives
subcommittee in June 2003.
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, Jones of the 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
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