24 July 2004
Thirty-two Islamic militants jailed for their role in the Bali bombings could be released after an Indonesian court ruled yesterday that anti-terrorism laws used to convict them were unconstitutional.
The judgment raised the prospect of all the men appealing against their guilty verdicts and having to be retried under ordinary criminal laws. Some lawyers suggested that they could walk free if they invoked the principle of "double jeopardy", which prevents people from being tried twice on the same charges.
That would be a nightmare scenario for Indonesian authorities, who were widely praised for the swiftness and efficiency with which they hunted down the terrorists responsible for planting explosives at two Bali nightclubs in October 2002.
The ruling by the Constitutional Court in Jakarta was greeted with dismay by survivors and relatives of victims of the blasts. The attack - blamed on Jemaah Islamiyah, a regional offshoot of al-Qa'ida - killed 202 people, including 28 British tourists.
Three of the men convicted following a lengthy series of trials in the Balinese capital, Denpasar, are on death row. They include Amrozi bin Nurhasyim, the first bomber to be found guilty, who memorably punched the air after being sentenced to death.
Under intense international pressure, Indonesia rushed the country's first anti-terrorism law through parliament soon after the Bali atrocity. It gave broader powers to police, classified terrorism as an "extraordinary crime" and provided for convicted terrorists to receive the death penalty.
A second law was also passed, which allowed the first to be applied retrospectively.
It was that legislation which, by a 5-4 majority, the court decided was "against the spirit" of Indonesia's 1945 constitution. The judges upheld an appeal by Masykur Abdul Kadir, one of the Bali conspirators who argued that the retrospective application of laws breached human rights. He was jailed for 15 years for arranging transport and accommodation for the bombers.
The implications of the ruling by the recently established court were not immediately clear, but most experts agreed that it opened an avenue for the men to launch fresh appeals.
Masykur's lawyer, Wirawan Adnan, said it would invalidate all 32 verdicts. "We believe that they have to retry all the Bali bombers. That's what it means," he told the Australian Broadcasting Corporation, adding that the men would have to be rearrested and charged with criminal offences such as murder. He said: "Under our law, it's not fair because that would be a double jeopardy." Lawyers representing other convicted bombers said they were planning to bring appeals.
The judgment could also affect attempts to prosecute Abu Bakar Bashir, the Indonesian cleric alleged to be Jemaah Islamiyah's leader, under the same anti-terrorism laws. Authorities were on the verge of bringing him to trial on charges of involvement in terrorist attacks, including the Bali bombs.
Bashir's lawyer, Mahendra Datta, yesterday called for his immediate release. "If police respect this rule, they must release him," he said.
While some of the bombers have already had appeals dismissed by the Supreme Court, they could seek judicial review of their verdicts following yesterday's ruling. All are expected to remain in jail until the legal chaos has been resolved.
Australia, which lost 88 citizens in the blasts, was horrified that the legal process might be back at square one. Alexander Downer, the Foreign Affairs Minister, insisted that it was not inevitable the men would be freed. "We want those convictions to stand," he said.