Fed: Bali bombers could escape justice

AAP General News (Australia)
08-27-2004
Fed: Bali bombers could escape justice

By Maria Hawthorne, Diplomatic Correspondent

CANBERRA, Aug 27 AAP - Could Indonesia have prevented the Idris crisis by charging
the Bali bombers under normal criminal law?

That's the question posed by the dropping of charges this week against self-confessed
Bali bomber Idris, also known as Jhoni Hendrawan, because he was charged retrospectively
under anti-terror laws brought in after the October 2002 bombings.

While Idris will serve 10 years in jail for the Marriott hotel bombing, he essentially
walked free on the Bali charges, despite admitting his involvement.

Prosecutors were forced to drop Bali-related charges after the Indonesian Constitutional
Court ruled that the anti-terror laws could not be used retrospectively.

It's a decision that raises the prospect of the other 33 Bali bombers already before
the Indonesian justice system escaping punishment for the deaths of 202 people - 88 of
them Australian - and horrendous injuries to scores more.

And there is confusion over whether radical cleric and suspected Jemaah Islamiah spiritual
head Abu Bakar Bashir will be charged over the Bali attacks.

Lawyers for convicted bomber Amrozi have already confirmed they will lodge an appeal,
saying their client was charged under the wrong law.

"It was a mistake in the first place," Amrozi's lawyer Wirawan Adnan said.

"This is not about believing whether someone is guilty or not, it's because of the
application of the law.

"I do believe that they deserve a retrial. This does not mean that they will walk,
but they can have a retrial."

In Australia, the news was greeted with a mixture of outrage and resignation.

"I can't say I was surprised," Bali survivor Erik de Haart said.

"I expected it all along. I can't see anywhere in the world where retrospective legislation
has been successful.

"It looks to me like they will all end up exploiting the same loophole and they will
all get out."

Prime Minister John Howard and Foreign Minister Alexander Downer have vowed to leave
no stone unturned in pressuring the Indonesians to keep the killers in jail.

Mr Downer even floated the possibility of extraditing them to be tried in Australia
if the Indonesian justice system failed.

But Mr Adnan says Australia is interfering with no regard for the integrity of the
Indonesian justice system.

"They're trying to use influence because ... the Australian government believes justice
is you put Amrozi in death row," he said.

"They don't believe that by doing that it's going to ruin our legal system, our justice system."

Former diplomat Tony Kevin, now an academic with the Australian National University's
Research School of Pacific and Asian Studies, said the real question was why the Indonesians
decided to charge the bombers under the anti-terror laws instead of existing criminal
law.

"I asked that question to an Indonesian journalist in Sydney and her answer was very
interesting," Mr Kevin said.

"She said `we were under enormous pressure from Australia'.

"So it looks to me as though Australia actually was putting pressure on Indonesia to
pass their anti-terrorism laws to charge these people with terrorism. And it always puzzled
me at the time why they couldn't simply be charged with murder, and there would have never
been any problem.

"Retrospective laws under any legal code is in most people's commonsense understanding
a bit suss."

Mr Kevin compared it to the decision not to extradite alleged people smuggler Abu Quassey
over the deaths of 353 boat people when their vessel sank en route to Australia in 2001.

"At that time, the government was always saying we can't bring him here because Indonesia
doesn't have a law against people smuggling, and it always puzzled me why that was the
problem," Mr Kevin said.

"He was on suspicion of having killed 353 people and Indonesia has laws against murder
or manslaughter or even, for that matter, organising an unsafe voyage on which 300 people
died."

A reserved power under the extradition treaty with Indonesia gives each government
the right to ask the other for a person to be deported in exceptional circumstances.

"I assume that's possible as a final resort," Mr Kevin said.

"Even if Indonesia should says it can't try them again under double jeopardy for the
same offence, Australia could then under the extradition treaty ask for them to be deported
to Australia to face murder charges here."

A spokesman for Attorney-General Philip Ruddock was tight-lipped on whether Australia
would seek the extradition of the bombers.

"It's something we wouldn't rule out," the spokesman said.

"But we will wait and see how the Indonesian justice system pans out."

AAP mfh/sb/rgr/sd f

KEYWORD: INDON TERROR AUST (AAP BACKGROUNDER)

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