Asia Times, March 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 t! he 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 su! bject 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 proce! eding 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 havi! ng 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 o! f 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 ve! ry 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
oth! er 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 t! he 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.
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