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with Damien Carrick
On Tuesday 15/10/2002 Indonesia's Justice System  Hear this program
Summary: In light of the Bali attack - we take a cold, hard look at Indonesia's justice system. Police, Prosecutors and Judges all have reputation for being corruptible. Does the legal environment create a fertile ground for violence. And is this system - likely to identify and punish the perpetrators and prevent future attacks? Details or Transcript: Damien Carrick: Hallo, and welcome. Today on The Law Report, we’re taking a cold hard look at Indonesia’s justice system. Does the country’s weak legal framework create a fertile ground for violence? Is this system likely to track down and punish the perpetrators of the Bali bombing, and is it likely to work effectively to prevent future attacks? … Associate Professor Tim Lindsey is the Director of the Asian Law Centre at Melbourne University, and a leading authority on the Indonesian legal system. While responsibility for the attack is yet to be established, as we’ve heard this morning, the leadership in Jakarta is conceding a link with Muslim extremists connected with al Qaeda. But Tim Lindsey says Muslim extremist groups, both home-grown and with foreign connections, have been highly active for some time in Indonesia, but largely ignored by the country’s cumbersome and corrupt legal system. Tim Lindsey: This is the first major bombing in Bali, but we have had a whole string of explosions that seem obviously to be politically directed in Jakarta, bombings on the Philippines Embassy, their attempts on the American Embassy, attacks on crowded shopping malls that have been devastating, for Indonesians obviously there. But this is the first time directed clearly and successfully against foreigners. But don’t forget, hundreds, maybe thousands of Indonesians have died in community violence between Christians and Muslims in Eastern Indonesia, in the Moluccas and in Sulawesi, so what’s different here is that foreigners and for us, Australians have been caught up in it, but it’s not isolated. Don’t forget also that the violence that’s occurred in Bali was directed not just against young white people in a disco, but also against the American Consulate and the Philippines Consulate in Manado and this reflects the events that have occurred already in the Philippines where we’ve had over the last couple of months, a whole series of bombings directed against American governmental targets there. So there may be some truth in looking at the region as a crescent of instability, but we need to be careful to contextualise what happened in Bali, in terms of what’s happened throughout Indonesia and throughout the Philippines. It’s a regional issue. Damien Carrick: Is there a connection between on the one hand the communal violence led by Laskar Jihad that we’ve seen in places like Sulawesi and Ambon where there’s been really serious, almost Yugoslavia type communal violence, indeed ethnic cleansing, and on the other hand the more internationally focused anti-Western actions by people like Jemaah Islamiyah. Tim Lindsey: There are connections because what we’ve seen in the period of instability following Suharto’s resignation and the shaming, the humiliation of the military following revelations of their involvement in murders, tortures and disappearances, is a sort of rise to fill the security gap of militias that are frequently oriented towards religious or ethnic concerns, or at least claim to be and use it as a justification. Now in Sulawesi in particular, these militias have been very well organised and have used religion as a basis. And there’s no question that those militias have encouraged religiously oriented violence. Now they need to be distinguished, however, from organisations like Jemaah Islamiyah which is the group accused of having conducted the bombing in Bali and these sort of militias. Jemaah Islamiyah is understood to have connections with al Qaeda, we’ve heard that from Lieutenant of al Qaeda, captured and interrogated by the Americans, and that means it’s no longer working on local, regional, ethnic tensions, but is part of an international Islamic radical terror agenda. So whilst undoubtedly organisations like Jemaah Islamiyah will be able to draw on Islamically-oriented militias, it’s a quite different ballgame. You simply have to look for example, at Abu Bakar Bashir, the leader of Jemaah Islamiyah, and he looks more like a figure from the Middle East than from Indonesian tradition, and perhaps that’s reflected I think, in the objectives of the organisation which are to create a mega Islamic State in South East Asia that would bring together Malaysia, Singapore, Indonesia and the Philippines in a sort of super Islamic State. And that’s a quite different sort of organisation to your local militias fighting local issues, but using religion as a weapon. Although it draws on them for support and recruits. Damien Carrick: How well has the Indonesian justice system coped in bringing to heel and punishing the perpetrators of extremist Muslim violence? Tim Lindsey: Pretty badly Damien. There’s reasons for that. First of all, the starting point is the basic corruption and dysfunction of the Indonesian legal system. We have to understand that that was inherited from three decades of deliberate abuse of the Indonesian legal system by Suharto. No dictator likes to have a legal system that can limit all which can in any way sort of restrict the power of the Executive, and Suharto deliberately set up the judicial system to be dysfunctional. That’s what was inherited by Habibe Wahid and Megawati; the system doesn’t work, it’s highly corrupt. That means that politicians can have a great deal of influence on what happens, and there is a group of Islamic politicians who do support, for political purposes, or at least like to be seen to be supporting, the aspirations of radical Muslims. So it’s a sort of funny combination going on here, of on the one hand a legal system that is weak, vulnerable and dysfunctional although it’s starting to improve, and on the other hand a group of politicians who are happy to intervene with the police, with prosecutors and with the courts, to secure the release of these sort of detainees. Unfortunately, one of the people who has shown willingness to intervene is the Vice President, Hamsa Haz, who has on a number of occasions, spoken out in favour of Jemaah Islamiyah, and who has visited Abu Bakar Bashir when he’s been detained, and has apparently been instrumental in securing freedom from prosecution for members in the past. Now whether the detail of that is in fact correct, the fact remains that when you have a Vice President intervening in favour of an organisation, in the context of modern Indonesia, that creates a sense of impunity. Damien Carrick: What about the role of judges? The Indonesian justice system has a reputation as you say, for being weak and corrupt. Judges can be bought, can’t they? Tim Lindsey: They certainly can, and there’s a long history of that. There was even a recent scandal whereby a lawyer played a tape recording of a conversation between himself and a Registrar, in which the Registrar indicated that her child’s overseas school fees were getting too high, and the cost to get the case heard had just gone up. So there’s concrete proof, and it’s widely acknowledged throughout the governmental system that the courts have been corrupt and subject to extensive bribery and political pressure. As I’ve said, that is changing. The current new Chief Justice, Professor Bagir Manan is really taking steps to alter a deeply ingrained culture of corruption in the judiciary, and there are signs of improvement. The recent bankruptcy case scandals where very bad decisions were manifested against foreign investors, did result in sensible decisions being made on appeal to the Supreme Court, although surprisingly enough, that wasn’t reported in our newspapers, anything like the ridiculous first instance decision. So there are shifts, there are changes, but the fact remains, when you come to a very high level controversial political case like Islamic terror, the likelihood is that there will be enormous pressure financially and politically, but placed on judges by interested parties. The real question is, why are there politicians in the parliament who see Jemaah Islamiyah and other groups as being worth protecting. Damien Carrick: And what do you think the answer is to that question? Tim Lindsey: Well it’s often said that there’s only one game in town in Jakarta at the moment, in Indonesia for that matter, that’s 2004, the next general election. Indonesia had a surprisingly free, fair and non-violent election in 1999, the next one’s due in 2004. Indonesia is a functional, if troubled democracy, and the struggle is on for candidates and parties to secure margins for that election. The elections that come up will be remarkable because they’ll be the first time in Indonesian history that there is an election for the legislature, that’s happened before but a direct election of the Presidency. Now nobody can expect to get an outright majority. The Presidential election will go to a second round. The political parties, particularly the Islamic parties, because the Islamic vote is split, in fact most Muslims voted for non-Muslim parties in the last election, they’re all anxious to shore up their credentials. There is some mileage for Islamic politicians in being seen to be strong pro-Islam particularly at a time when Islam is threatened and attacked, or perceived to be threatened and attacked, all round the world. So if they can at low personal risk, whip up a bit of pro-Islamic feeling in a jingoistic sort of fashion, that may win them some votes in the next election, and I think that’s what Humza Haz and his party PPP have been prepared to do. And this puts the President, Megawati in a very difficult position. Damien Carrick: Getting back to judges and the legal system, perhaps the most high profile case was the one involving Tommy Suharto, son of former strongman Suharto; tell me, what happened in that case? Tim Lindsey: Well that was very interesting. Suharto’s son, Tommy, was charged with land fraud, swapping a swampy parcel of land for a supermarket site in effect. He was charged, he was acquitted, he was tried, he was convicted, he disappeared, pending sentence. He was on the run for about 18 months and the resources of Indonesia were directed to find him. Whilst the police and the military were supposedly scouring Indonesia for Tommy, he met, as has since been admitted, with President Wahid twice, to negotiate a pardon. He was widely seen around Jakarta and so forth. It was fairly obvious that the security forces had been paid off. Interestingly, he wasn’t captured until Megawati came to power and made it a priority for him to be arrested. He’s since been arrested, his appeal’s failed and he’s now in jail. He is the highest profile figure from the new order to have been jailed and convicted, and it’s a sign perhaps that when you look at it alongside the current corruption trial and pending appeal of the Speaker of the Indonesian Parliament, Akbar Tanjung this is a sign that there is a real shift towards starting to make people accountable for the problems and the corruption in the new order that delivered Indonesia into its current economic crisis. And as I say, there are reasons to be optimistic that there is at last, after half a century, some signs of reform in those courts. The problem really lies with the prosecution, which is an extremely weak and corrupt institution. Damien Carrick: Tell me about some of those problems with the prosecution. Tim Lindsey: Well the prosecution, there’s plenty of examples in Indonesia of prosecution failing to proceed with charges that seem to be well-established against powerful political individuals, of linked to that police failure in investigating, seemingly unable to find Tommy Suharto and people claim to have seen him driving down the main drag in Jakarta and so forth. The Supreme Court has begun to change, but the prosecution seems to be highly resistant to it. Damien Carrick: Judges themselves are a vulnerable group. I understand that there have been judges in Indonesia who have been murdered. Tim Lindsey: Yes, there was the judge who in fact tried Tommy Suharto and convicted him at first instance, was found dead, shot in the head, and Tommy Suharto was eventually convicted of his murder. So judges are aware of the fact that consequences of non-compliance with corrupt inducements may in fact be violence or death. Even short of murder, there are plenty of judges who’ve experienced assaults on themselves or their families, have had their houses stoned. I know of one judge from the Administrative Court in North Sumatra?? who had his house doused in animal blood several times a week for making a decision against local authorities. So they’re under a lot of pressure. … Damien Carrick: In the aftermath of the catastrophe in Bali, I’m speaking with Associate Professor Tim Lindsay about the strengths and the weaknesses of the Indonesian justice system. Tim Lindsey, do you think in light of the attack, we’ll see pressure from moderate Muslims in Indonesia which will allow the politicians and the judges to disassociate themselves from anarchic elements? Tim Lindsey: Yes, I think so, I think that’s what will happen. We have to remember that to talk about Islam as a single religion or a single group is extremely inaccurate and misleading. It would be like talking about Christianity as embracing the Ku Klux Klan and Low Church Anglicans in Melbourne. The gulfs between Jemaah Islamiyah or al Qaeda who stand at the Ku Klux end of the scale and moderate mainstream middle-class Indonesians, who are your Low Church Anglicans, is enormous, absolutely enormous. Most middle-class Indonesian Muslims don’t want al Qaeda or Taliban on the streets of Jakarta any more than we want them here in Melbourne. What we’ll see now is that great international pressure will be brought to bear, and more importantly, the political parties will treat radical Islam not as a religious question but as an internal security and peace and order issue. Now they’re very powerful, potent words in Indonesia and I think we’ll see the government much more ready to take a security approach rather than a religious approach to Islamic terror. It will give the secular nationalists in Megawati’s party and Suharto’s old party and the military, a rationale for dealing in a more determined and clear-cut fashion with Islamic extremists, and will make it very difficult for the more hardline Muslim parties to speak out in favour of a group that killed Indonesians in Bali, with consequently devastating effects for that island’s economy. Damien Carrick: Now given that the bulk of the victims may turn out to be Australians, if evidence emerges which can support a prosecution, presumably Australian authorities would want to extradite those they believe are responsible and have a trial here in Australia; do we have an extradition treaty with Indonesia? Tim Lindsey: We do. There is a current extradition treaty with Indonesia, and there are cases going through the system. So Indonesia and Australia have a pretty good record of mutual co-operation in the last few years on security issues and on extradition, so I would imagine they would co-operate quite well and easily on this. Damien Carrick: Given the concerns which Australia and most other countries have about the Indonesian justice system, do you think that the Indonesians would be comfortable about handing over any suspects for trial in another jurisdiction? Tim Lindsey: Indonesians have resisted foreign prosecution of their citizens in relation to violence in East Timor, but it’s a different case, that people being prosecuted there are members of the military or Indonesian administration, they’re part of the State. But people who will be prosecuted here I assume, will be radical Islamic terror groups, who the Indonesian State has no sympathy for at all. Historically, every single President since independence, has been personally strongly opposed to Islamic extremism, including President Wahid who was the leader of the world’s largest Islamic organisation. So I think this is quite different. These are enemies of State, I think you’ll find the Indonesian government is probably prepared to co-operate. What may happen is that they may wish to prosecute these people for a whole range of very serious offences they’ve always committed under Indonesian criminal law, including of course, murder. And then allow them to be extradited for trial elsewhere. Or some arrangement will be made with foreign authorities. But I can’t see, I think this is an entirely different case, to human rights prosecutions of members of the military or the government, that I think you’ll see co-operation forthcoming in due course, assuming they’re caught. Damien Carrick: Now I realise that you’re not an international lawyer, you’re an expert in Indonesian law, but is it possible perhaps that this kind of case might fall within the purview of the International Criminal Court, and perhaps if arrests are made and if charges are brought, it could be done in that context, in that forum? Tim Lindsey: Well I would have thought that would be one option open. I have to say though, that looking at the example of America, it doesn’t seem to be one that appeals to sovereign governments. America’s resisting treating this as an international law issue, regarding it as a matter for the sovereign State. I think Indonesia and Australia will probably try to deal with it internally. Damien Carrick: Within their own courts? Tim Lindsey: Well within some sort of framework of co-operation and I think you’ll find that they will create a framework pretty quickly between the two of them about the two countries, as to how they’re going to deal with it, which will probably exclude the need for an International Court. Damien Carrick: I understand that the Head of the police force in Bali has said he’ll resign if the perpetrators aren’t brought to justice within a month; does that strike you as a realistic time-frame for solving this crime, given that we’re well past the first anniversary of September 11 and still no solving of that crime. Tim Lindsey: It strikes me as a quite unrealistic deadline, but I don’t doubt sincerity of the man though, this is an absolute tragedy for Bali. It’s clearly a tragedy for the victims of the blast and their families, but it’s also a tragedy for Bali. Bali has one of the highest per capita incomes of any province in Indonesia, almost entirely from tourism. It’s a cash cow for the elite in Jakarta, who invest heavily and control most of the business in Bali. It has tourist arrival rate every year several times the island’s own population. If tourism dries up and I think that’s inevitable for the short-term, that is a catastrophic blow to Bali, and quite damaging for Indonesia’s economy, still ailing since the economic crisis in ’97. Some commentators have said that Indonesia has suffered the greatest collapse in its financial system, and its economic welfare since the Weimar Republic in Germany after World War I; now whether that’s true or not it has been incomparably more severe than any other East Asian country. The last thing they need is tourism removing yet another source of foreign money, so I think we can expect real problems in Bali that will have socially dislocating effects as businesses close, people lose jobs, and tensions rise in the community, particularly because of course, Bali is a majority Hindu island. There’s a very small Islamic community in the north of Bali, there are also scattered populations of what we might call itinerant Javanese who are Muslims at the sort of lower end of the social scale who’ve arrived looking for work in Bali. There’s a real possibility that as tensions rise, as tourism collapses and the island’s economy is damaged, that Hindu Balinese may start turning on these more vulnerable Javanese workers, blaming them for what’s happening in Bali. I think there are some real problems for social dislocation on Bali, and Bali despite its reputation as a paradise, has a rather unpleasant reputation of being one of the most bloody parts of Indonesia when violence starts. In 1965-1966, the killings of the Left engineered by the military, the highest per capita killings in the whole of Indonesia occurred in Bali. So it’s very important that they do capture or do something to identify the terrorists involved in this as quickly as possible, or they may find a very difficult situation emerging in Bali. I think that’s probably motivating the police chief. I don’t doubt he means it. Damien Carrick: Associate Professor, Tim Lindsey, Director of the Asian Law Centre at Melbourne University. And let’s hope that cycle of ethnic violence doesn’t return. … Damien Carrick: Well before any criminal trials take place, of course you need to gather evidence and identify suspects. Clive Williams is the Director of Terrorism Studies at the Australian National University Centre for Defence and Strategic Studies. I asked him, from a crime fighter’s perspective, what’s the likely prognosis? Will it be possible to work out who’s responsible for the attack? Clive Williams: Well the local police chief in Bali seems to have put his neck on the line by saying that he’ll resign if he doesn’t get a result within a month. So presumably he’s reasonably optimistic that he can find out who was responsible. Unless they’ve or course got intelligence which they can act upon, if they don’t then it becomes an issue of crime scene examination, trying to find bits of the vehicle, work out what the vehicle was, who owned the vehicle, that sort of stuff. And that becomes basically a routine police investigation. Damien Carrick: Does Indonesia have those high forensic skills, or will it be relying on Australian Federal Police and ASIO operatives, who I believe are flying over to Indonesia as we speak. Clive Williams: Well I think they’re probably already there, from what I heard. Yes, certainly, there’ll be reliance on Australia for a lot of the expertise, particularly in, say, forensic examination, bomb scene examination, that sort of thing. Because they basically don’t have a lot of resources, but the problem is, not to make the Indonesians feel as though they’re inadequate, it’s got to be done diplomatically, and make it clear that they’re running the investigation, because after all it’s in Indonesia, Indonesians also have suffered. And while we have got the predominant interest in terms of victims and so on, it would seem, if we want to get results, we’re going to have to work through the Indonesians to achieve those. Damien Carrick: Do you have faith in the Indonesian justice system, the police, the prosecutors, the judges? Clive Williams: Well in the past, certainly it’s been difficult to achieve justice in Indonesia, and in some areas too, it’s been quite difficult to get positive outcomes. For example, I’m involved in a forum that deals with money laundering, well Indonesia passed legislation but hasn’t acted upon it, so there are problems obviously within the justice system, but I think in this particular case, I think many establishment figures are going to be suffering because of their investments in Bali, which are now going to be sort of diminished considerably in value. Damien Carrick: That could galvanise the elites who perhaps do have some kind of influence over the justice system to pull out all stops. Clive Williams: I think so, yes. And I think the other thing too, to bear in mind, is that while Megawati has been reluctant previously to act against extremists, I think that this would have horrified most Indonesians, and I think perhaps most people would be more accepting of an investigation which found fault with a number of extremists who could be arrested and prosecuted, which might not have been the case had the investigation happened before the Bali bombing. Damien Carrick: We’ve talked about Indonesia and its approach to fighting terrorism; do you think this attack will cause a re-think in the way Australia thinks about terrorism issues? Clive Williams: Certainly. I imagine that there is going to be a review of our threat levels and so on, but essentially the threat in Australia hasn’t changed as a result of this. You know, I know people are frightened and feel vulnerable and so on, but the reality is that the threat level hasn’t changed in Australia. Threat levels can change though, depending on outside circumstances, and I think obviously if we were to get involved in a war against Iraq, I mean that might well change the threat level in Australia because then there’s the potential for people to take action because they’re sympathetic towards the Iraqis perhaps, or unsympathetic towards the US policy, that sort of thing. Damien Carrick: But do you think this attack might cause a re-think in the way perhaps Australia obtains and processes information about places like Indonesia or places where perhaps terrorist attacks might take place, although of course that can happen anywhere. Clive Williams: Yes, well one of the problems of course has been security intelligence in Indonesia, and I don’t think it’s a matter of their not sharing information with us, I think it’s simply that they don’t really have a good handle on what’s going on anyway. So certainly we need to look at how we can improve that situation. It may well mean that we have to exchange people with intelligence organisations and security organisations, and take a more active role through ASEAN perhaps in counter-terrorism measures within the region. So certainly there are a range of things that we need to look at doing in the region now in terms of our security and the security of Australian citizens. Damien Carrick: Do we rely only on liaison with Indonesian authorities, or do we have our own intelligence-gathering, our own surveillance, eavesdropping, infiltrating? Clive Williams: No we certainly have our own collection capability, but the trouble is with a lot of this kind of thing, terrorist activity, human intelligence I think is the most important aspect in terms of intelligence to be able to operate against terrorist groups, and to do that you need to penetrate the groups, or you need to have people that are prepared to sell you information, that sort of thing, and that doesn’t seem to exist at the moment. Damien Carrick: In crime fighting, or war against terror terms, is there an argument that Australia maybe has to radically re-think the way it protects its citizens, and can you think of any ways in which that might be done? Clive Williams: Well most times if you improve security, it’s at the expense of civil liberties. This is why it’s important to do a comprehensive threat analysis, to see which groups are likely to be posing a threat, if any, what their capabilities are, what they’re likely to do, what the indicators are, all that kind of stuff, and whether there’s external events which are going to affect the threat levels, and then you plan accordingly, and you put your security measures into place. Obviously there’s no point in putting in lots of security measures if the threat doesn’t warrant it, so it has to be a balanced and cost-effective response. Damien Carrick: The main focus has been on the potential capabilities of the Iraqi regime, rather than on protecting Australian citizens abroad; do you think that it would be appropriate for there to be a re-emphasis away from focus on the Iraqi regime in terms of the war against terror? Clive Williams: Well I think the war on terror and the war against Iraq are two different things. There certainly hasn’t been much indication that there’s any linkage, or much of a linkage between the kind of activities that al Qaeda has conducted and what Iraq has been supporting. And certainly up to now, that has not been very apparent. And the evidence has not been very compelling of any sort of links between Iraq and terrorist groups. They certainly have provided sanctuary to people like Abu Nidal in the past, but to actually take the war on terror and stretch it over to cover Iraq I think is rather stretching things. Damien Carrick: Clive Williams is the Director of Terrorism Studies at the Australian National University Centre for Defence and Strategic Studies. That’s The Law Report for this week. Thanks to producer, Michael Shirrefs, and to technical producer, Carey Dell. Guests on this program:
Presenter: Damien Carrick Producer: Michael Shirrefs |  |
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