The Jakarta Post, July 26, 2004
Legal experts at odds over status of Bali bombers
Muninggar Sri Saraswati and Abdul Khalid, Jakarta
Legal experts differed on Sunday as to whether or not those jailed for plotting the
deadly Bali bombings in October 2002 would eventually walk free following the
Constitutional Court's decision to declare Law No. 16/2003 unconstitutional.
Meanwhile, political and security ministers will meet on Monday (today) to discuss
and publicly announce the government's stance on the issue.
University of Indonesia law lecturer Rudy Satrio said on Sunday that those convicted
of the Bali bombings could file for a Supreme Court review as the ruling could serve as
new evidence.
"The decision to declare Law No. 16/2003 unconstitutional means there is now new
evidence that was not available during their trials. I think the Supreme Court would
review the verdicts as the law on which they were based has now been overturned,"
Rudy told The Jakarta Post.
A total of 32 people were charged under Law No. 16/2003, which allows the retroactive
application of Law No. 15/2003, with involvement in the Bali bombings of Oct. 12,
2002, which killed over 200 people and injured more than 300 others.
The Constitutional Court judges were divided in their stance on the issue last Friday.
While all agreed that the anti-retroactivity principal was not absolute, five out of the
nine judges said that the Bali bombings were crimes that could have been tried under
the existing Criminal Code, and did not constitute gross violations of human rights
such as genocide, which is not covered under the Criminal Code, and thus did not
require the anti-retroactivity principle to be jettisoned.
The others said the gravity of the Bali bombers' crimes warranted the application of
retroactivity as this would satisfy the "need for justice".
Rudy said it was likely that the Supreme Court would overturn the earlier verdicts and
acquit those who had been convicted based on the argument that the original verdicts
lacked a legal basis.
However, the former chairman of the Indonesian Legal Aid Institute Foundation
(YLBHI), Bambang Widjoyanto, said that the Constitutional Court's decision could not
be considered new evidence under the prevailing law.
"According to article 263 of the Criminal Code, the decision is not new evidence. So, I
think the Supreme Court would not accept their request for a review," Bambang said.
He argued that if the Constitutional Court's decision was applied to previous cases,
such as the Bali bombing verdicts, then this would in itself also violate the principle of
non-retroactivity -- which principle was, in fact, the essence of the Constitutional
Court's decision.
Noted expert Luhut M. Pangaribuan, meanwhile, said that the ball was now in the
hands of the Supreme Court.
"I think the decision does constitute new evidence, but the Supreme Court will also
have to consider that any decision to apply the ruling to the Bali cases would also be
constitute retroactivity," Luhut told the Post.
He said that if all those who had been convicted were released by the Supreme Court,
the police could rearrest and detain them using the provisions of the Criminal Code.
Meanwhile, Minister of Justice and Human Rights Yusril Ihza Mahendra said Saturday
that the punishments that had been handed down, including those imposed by the
Supreme Court, would stand despite the Constitutional Court's ruling.
"The ruling does not necessarily mean the acquittal of those convicted of or charged
as suspects in connection with the Bali bombings," Yusril said after a meeting with
Deputy Attorney General Basrief Arief, the justice ministry's legislation director
general Abdul Gani Abdullah, and representatives of the National Intelligence Agency
(BIN) and the National Police.
Yusril said Article 58 of Law No. 24/2003 on the Constitutional Court stipulates that all
statutes are effective up until such time as the court rules otherwise.
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