JAKARTA - Osama bin Laden confidante and
Indonesian terror suspect Umar Patek remains in
Guantanamo-like legal limbo in Pakistan since his
arrest in Abbottabad in late January, amid concerns
that he would not be successfully prosecuted in
Indonesia.
Patek, an alleged explosives
expert with the Jemaah Islamiyah (JI) terror
group, was one of Indonesia's most wanted terror
suspects before his capture by Pakistani forces in
the same town where United States commandos killed
bin Laden in a raid on the al-Qaeda founder's
hideout. Patek stands accused of being involved in
the 2002 Bali bombing, in which more than 200
people, mostly foreign tourists, were killed.
Until his capture six months ago, Patek was one of
the few suspected JI masterminds of those
attacks still at large.
Pakistan has been pressured to stall the
return of Patek to Indonesia despite having
offered Jakarta the first opportunity to try him.
Top Indonesian officials have expressed doubts
that local courts would be able to prosecute him
if tried at home and that his radical supporters
could stir unrest and exploit the trial as a
propaganda vehicle.
Pakistan has given
Indonesian officials access to interrogate Patek.
During Pakistan's own interrogations, Patek
reportedly confessed to involvement in the Bali
bombing and supplied information related to
planned terrorism plots in Australia and other
countries. Although the United States' Central
Intelligence Agency (CIA) provided intelligence
that led to Patek's arrest in Pakistan, American
officials have not sought to interrogate him.
Pakistan does not share an extradition
treaty with Indonesia, so Islamabad is not legally
bound to hand Patek over to authorities in his
home country. Apart from Indonesia, the US,
Australia, the Philippines or Pakistan are all
possible venues for his eventual trial.
The US and Australia can claim the right
to try Patek because many of their citizens died
in the 2002 Bali bombings in 2002. (Nearly half of
the victims were Australian nationals and seven
were Americans.) The Philippines could potentially
try him over allegations he set up terrorist camps
in Mindanao, the war-torn southern island where
militant recruits were supposedly trained in
explosives and organized several bombings in the
country.
In Pakistan, Patek faces charges
ranging from the illegal possession of weapons to
resisting arrest to carrying a forged passport.
The monitored movements of Patek and his
facilitators helped lead US investigators to Bin
Laden's compound in Abbottabad.
Certain
Indonesian officials have said that trying Patek
at home could cause more problems than it would
solve. Chairul Akbar, the first secretary of the
National Anti-Terrorism Agency, has said he does
not want to try Patek in Indonesia because a trial
will provide ammunition for radical Islamic groups
that sympathize with JI.
While Indonesia
has notched many counter-terrorism successes, the
terrorist threat is still clear and present.
Earlier this week authorities arrested seven
terror suspects on charges of smuggling weapons
into the country from the Philippines through
Malaysia.
Last month, police arrested 16
terror suspects behind an alleged plot to poison
police personnel with cyanide by sabotaging water
bottles at station canteens. Recent anonymous
bombings, including one at a church on the
outskirts of Jakarta, have been attributed to
Islamic militant groups.
Even if Indonesia
has the will to prosecute Patek, substantial legal
hurdles must be jumped. The head of Indonesia's
National Anti-Terrorism Agency, Ansyaad Mbai, has
expressed doubts whether Patek can be convicted in
Indonesia because the country's Anti-Terror Law of
2003 cannot be applied retrospectively for Patek's
alleged role in the 2002 Bali bombings.
Partial justice To be sure,
Indonesia has a mixed record in prosecuting terror
suspects. In November 2008, Indonesian police
carried out death sentences on three convicted
Bali bombers by strapping them to poles and
shooting them in the heart. Despite fears of
reprisal attacks and rallies by supporters of the
bombers in their hometowns, there was no violence
in the aftermath of the executions.
Other
verdicts have been less resounding. An Indonesian
court convicted Islamic cleric Abu Bakar Bashir
for conspiracy in connection with 2002 Bali
bombings but sentenced him to a lenient 30 months
in prison minus 10 months for time served during
the trial. In April 2003 he was also charged with
immigration violations and served 18 months in
prison, but was found innocent of the more serious
charge of treason. The US and Australia expressed
disappointment at the verdicts, decisions that
have no doubt influenced their stand on Patek's
extradition.
More recently, however,
Bashir was found guilty and received a harsh
sentence for sponsoring a terrorist cell in Aceh
province that was allegedly planning Mumbai-style
attacks with suicide squads targeting Westerners,
embassies and political leaders, including
president Susilo Bambang Yudhoyono. Militants
arrested in the raid on the camp testified that
they were given military and weapons training and
that Bashir had raised more than US$100,000 for
guns, ammunition and equipment.
The
15-year sentence handed down in June was shorter
than the life sentence prosecutors sought, though
it is tantamount to a death sentence for the
72-year-old Bashir. Unlike the previous trials
that left victim nations disappointed, there were
no complaints from the US or Australia. Bashir's
prosecution has helped to restore a measure of
international confidence in Indonesia's ability to
bring terrorists to justice, though clearly has
not resolved the stalemate over whether Patek
should be extradited to Indonesia.
A
series of book bombs contained in parcels mailed
to liberal Muslim leaders during the final stages
of Bashir's trial in March this year was not
conclusively connected to his case. However, the
attacks - which were the first letter bombs sent
in Indonesia - showed the potential for home-grown
extremists to diversify their methods and
retaliate in defense of their comrades.
If
Patek were put on trial in Jakarta, hundreds of
his supporters from different radical
organizations would be expected to swarm outside
of the proceedings to put pressure on judges - as
they did during Bashir's recent trial, when ahead
of the verdict more than 3,000 soldiers, including
snipers, were deployed to the courtroom and its
surrounding areas.
The underlying legal
issue on Patek's case is that he will not be
subject to the same Anti-Terror Law of 2003 that
was used to convict and execute the three Bali
bombers. Masykur Abdul Kadir, who was sentenced to
15 years imprisonment by the Denpasar District
Court in Bali for assisting them, challenged in
July 2004 the constitutionality of a retrospective
clause in the Anti-Terror Law.
By a five
to four majority, the Constitutional Court held
that the clause, which was introduced to allow
acts related to the 2002 Bali bombings to be tried
under the Anti-Terror Law of 2003, was
unconstitutional. The three bombers' convictions
stood because the court in 2004 found that its
ruling did not apply to their conviction in 2003,
but that it would in related cases brought in
future - potentially including Patek's.
That means that Indonesian prosecutors and
investigators would not be able to take advantage
of the greatly expanded evidentiary powers,
including evidence acquired by wiretapping and
other communication intercepts allowed for in the
Anti-Terror Law 2003, against Patek. Given those
legal weaknesses and US and Australian concerns,
Patek is expected to remain in legal limbo in
Pakistan and outside of Indonesia's courts for the
foreseeable future.
Jacob Zenn
graduated from Georgetown Law as a Global Law
Scholar in 2011 and is currently based in
Indonesia. He can be contacted at
jacobzenn@gmail.com.
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