Indonesia's trial by terror

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-hHKSG33TihhbjbujkaE4pw@xxxxxxxxxxxxxxxx
5. No-email/web only: ppiindia-nomail-hHKSG33TihhbjbujkaE4pw@xxxxxxxxxxxxxxxx
6. kembali menerima email: 
ppiindia-normal-hHKSG33TihhbjbujkaE4pw@xxxxxxxxxxxxxxxx