2003–04 No. 14, 7 October 2003 The Amrozi Bali Bombing Case: is Indonesia's Anti-terrorism Law Unconstitutional? Background which have a common law heritage, A number of international human On 8 August 2003, Amrozi bin the Indonesian system is not based rights conventions and other Nurhasyim ('Amrozi') was found on the doctrine of precedent (stare agreements contain similar guilty of various charges relating to decisis). As a consequence, provisions to Article 28I(1), his purchase of the Minivan and Indonesia does not have an However, many also recognise an bomb-making chemicals used in the established body of caselaw. This 'exception' for acts that offend Bali bombings of 12 October 2002. makes it more difficult to anticipate against internationally accepted legal These charges were laid under an how complex matters of law, such as standards. For example, Article 15 anti-terrorism regulation that was the constitutional issue in the of the International Covenant on proclaimed by President Megawati Amrozi case, will be decided by the Civil and Political Rights (ICCPR) one week after the Bali bombings. courts. states: An initial appeal to the High Court The 2002 Anti-terrorism Law 1. No one shall be held guilty of any against Amrozi's conviction was criminal offence on account of any On 18 October, six days after the heard in September but the act or omission which did not Bali bombing, President Megawati conviction was upheld. constitute a criminal offence, under issued Perpus 1/2002 and 2/2002. national or international law, at the An appeal has now been lodged with Perpu 1/2002 was a revised version time when it was committed ... the Supreme Court. One of the main of an anti-terrorism Bill previously 2. Nothing in this article shall grounds for appeal is that the anti- debated by the DPR. It provided that prejudice the trial and punishment of terrorism regulation breaches the an act of terrorism, or the planning any person for any act or omission prohibition against retrospective or assisting of an act of terrorism, which, at the time when it was prosecution in Article 28I(1) of could be punished by death. Section committed, was criminal according Indonesia's Constitution. This 46 allowed for its retrospective to the general principles of law constitutional issue will likely application if this was authorised by recognized by the community of eventually be decided by the newly- another Perpu or law. Perpu 2/2002 nations. 1 formed Constitutional Court. authorised that retrospective An act of terrorism that results in the application 'in relation to the [Bali] Indonesian Law and its Legal mass killing of civilians not System bombing incident'. Perpus 1/2000 connected with any military conflict and 2/2002 were subsequently is clearly a criminal act within the The Indonesian Constitution sits at 5 approved with 'minimal changes' by scope of ICCPR Article 15(2). the apex of the hierarchy of 3 the DPR in March 2003. With the Whilst there is no provision in the Indonesian law. Below this sit laws DPR approval, Perpu 1/2001 was Indonesian Constitution that directly passed by the Indonesian Parliament, renamed Law 15/2003. incorporates Article 15(2), there is the Dewan Perwakilan Rakyat Article 28J(1) and (2), which state: (DPR), and then lower again still The Constitutional Ban on 'Government Regulations in lieu of Retrospective Prosecution Each person is obliged to respect the law' (Peraturan Pemerintah Significant amendments were made basic human rights of others in Pengganti Undang-Undang, or to the Indonesian Constitution in orderly life as a community, as a 'Perpus').2 Article 22 of the 2000. In particular, a new chapter on people, and as a nation. In the enjoyment of their rights and Constitution provides that, 'in the human rights was added. In this freedoms, each person is obliged to event of a compelling emergency', chapter, Article 28I(1) says in part: submit to the limits determined by the President may issue a Perpu. … the right not to be prosecuted law, with the sole purpose of Perpus must be approved by the under retrospective laws [is a] basic guaranteeing recognition and respect DPR at its next session. human right that may not be for the rights of others … diminished under any circumstances Indonesia has a civil law system. Shortly after the 2000 Constitutional at all. 4 Unlike countries such as Australia amendments, it was suggested by the then Indonesian Minister for Justice Article 28I should be read in and 28J, this is more of a theoretical and Human Rights that an conjunction with the subsequent possibility than a likely one. individual's Article 28I(1) protection clause J. Thus we may conclude that against retrospective prosecution the rights tribunal law [ie Law 26/2000] is based on Article 28J … 1. The Constitutional Court has the was predicated on him or her not authority to make 'final decisions The value of justice is higher than violating the basic human rights of in the review of legislation against legal certainty … where the non- the constitution': Article 24C(1) of others in Article 28J.6 This reasoning retroactive principle can be set the Constitution. has some support in the explanatory aside. Should there be any dispute 2. There are other forms of 7 notes accompanying Law 26/2000. over legal certainty, then we legislation in the hierarchy but none of them are relevant here. Law 26/2000 on Human Rights should opt for justice. 10 Courts was enacted by the DPR in 3. Ross Clarke, 'Retrospectivity and 2000 to try various persons, Thus Indonesian courts, for the time the Constitutional validity of the being at least, appear to be Bali bombing and East Timor including military officers, of human trials', Australian Journal of Asian rights violations in some areas of validating the retrospective Law, 2003 5(2), 2–32. East Timor during the violence after operation of Laws 26/2000 and 4. Note this is not an official the 1999 independence referendum. 15/2003 by reading the protection translation of the Constitution. Like the anti-terrorism law, Law contained in Article 28I as being 5. See the 1994 UN Declaration on subject to the respect of human Measures to Eliminate 26/2000 purports to have International Terrorism. rights of others in Article 28J. retrospective application. Similar 6. International Crisis Group ICG arguments against the retrospective What Happens if Amrozi's Asian Report no. 12, February aspects of Law 26/2000 were raised Appeal is Successful on 2001, p. 16. http://www.intl-crisis- Constitutional Grounds? group.org/projects/asia/indonesia/r in at least some of the East Timor eports/A400227_02022001.pdf trials and are expected to be raised Amrozi was not charged with any The debate surrounding in again in appeal hearings in the offences under the ordinary inclusion of articles 28I and 28J are well covered in Clarke, op. cit., future. Indonesian criminal code. Like pp. 2–8. The Issue of Retrospectivity at Australia, Indonesian law 7. International Crisis Group, op. cit., the Amrozi Trial incorporates the double jeopardy p.16. principle.11 In general, the Australian 8. They also claimed that the charges Amrozi's lawyers challenged the interpretation of double jeopardy did not provide sufficient detail to constitutionality of the retrospective demonstrate that Amrozi was ordinarily prohibits a person from aspect of Law 15/2003 at the start of materially involved in the planning being charged twice in relation to the of the bombing. the Amrozi trial in May 2003.8 same conduct. However, if there are 9. Clarke, op. cit., p. 20. No English language transcript of significantly different elements that 10. Tertani Simanjuntak 'Judges insist the trial or appellate judges rejection make up the separate offences, a trial must go on', 10 April 2002. of the constitutional argument is person could potentially be charged 11. Tim Lindsey 'Appeals could prolong Amrozi case', Lateline available. However, one a second time if the initial charges 8 August 2003. commentator has observed that: fail. This said, an Australian court 12. Pearce v the Queen 194 CLR 610 It remains unclear … whether the would still have the option of staying at 620–621. See also R v Carroll [trial] judges of the Denpasar court proceedings in the case of the second 194 ALR 1 at 10–13. based their decision on a broad round of charges on the grounds of reading of the Constitution or on abuse of process.12 Angus Martyn customary international law. Given Law and Bills Digest Group The exact nature of the double the experience of the East Timor Information and Research Services Trials, the former is more likely, yet jeopardy principle in Indonesian law the Bali Court further illustrates the is unclear, so any forecasting must Views expressed in this Research Note be speculative. Nonetheless, whilst are those of the author and do not desire of Indonesian judges to necessarily reflect those of the 9 overlook Article 28I(1). subsequent charges against Amrozi Information and Research Services and under the Criminal Code could well are not to be attributed to the The reference to East Timor trials Department of the Parliamentary be possible, there may be a risk that may relate to the decision of Judge Library. Research Notes provide concise an Indonesian court would consider analytical briefings on issues of interest Cicut Sutiarso in the trial of Col. to Senators and Members. As such they that such charges infringe on the Herman Sedyono charged under may not canvass all of the key issues. double jeopardy principle and the Advice on legislation or legal policy Law 26/2000 in relation to a issues contained in this paper is case would not proceed.