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f the man reportedly arrested in Pakistan is indeed Umar Patek, Southeast Asia’s most wanted terrorist suspect, Indonesia will have to decide soon whether to try to extradite or repatriate him.

The Pakistan authorities appear to have given Indonesia the first choice over other countries to take back Umar, presumably because of his Indonesian citizenship. One would have thought the US government, which had offered a US$1 million reward for his head, should get a first crack. One suggestion was that given the strained relations with Washington, Pakistan had decided not to claim the prize money and turned to Jakarta instead.

The 40-year-old Patek is wanted in connection with the deadly bombing attacks in Bali in 2002 and a series of other terrorist activities in Indonesia and the Philippines since. Australia wants him for the death of many Australians in the Bali bombing, and the United States wants him for his links to the al-Qaeda organization that is blamed for the 9/11 terrorist attack in 2001.

Indonesia, however, will face a dilemma if Patek is brought back to face charges here. The law on terrorism was only enacted in 2003 and cannot be applied retroactively to punish Patek for the Bali bombing which took place in October 2002. The court applied it once to three chief protagonists, who were tried, convicted and executed in 2008. That retroactivity clause has since been repealed by the Constitutional Court and cannot be applied in Patek’s case if he were to face charges now.

Even if some other laws are used to prosecute Patek for his alleged crimes here in Indonesia, there is the prospect of a long and drawn-out investigation and a court hearing afterward. There is then the prospect of his interrogation and trial being turned into a media circus.

We may recall how the three Bali bombers turned their investigations, trial and execution into a huge media spectacle. They were giving press interviews from their death row cells, right until the final hours before they faced the firing squad. Their behavior, not showing any remorse and constantly making a mockery of the Indonesian justice system, was enough to lead many people who normally opposed capital punishment to make an exception. In everyone’s interests, including the relatives of the victims of their heinous crimes, they were better off dead.

Bringing Patek back carries major political risks that Indonesia could do without. As a matter of policy, the government is obliged to provide legal protection to all of its citizens abroad, and that means anyone entangled with a foreign law should ideally be brought to face charges at home whenever it is possible. The government could make an exception in Patek’s case. If it does, it wouldn’t be the
first time.

Patek’s alleged co-conspirator in the Bali bombing, Riduan Isamuddin alias Hambali, is believed to be lingering in the US-run terrorist detention offshore facility in Guantanamo Bay, along with hundreds of other terrorist suspects linked to the al-Qaeda. Both Hambali and Patek allegedly received their military training in Afghanistan with the al- Qaeda, and are said to have been involved in plans to launch the 2002 Bali bombing that killed more than 200 people.

The Indonesian government did make a formal representation on Hambali’s behalf, but never seriously, knowing that bringing him back to Indonesia would only lead to legal complications that could also lead to him walking free. There was never any serious attempt to extradite him, and given the secrecy with which Guantanamo is run, there was never any serious attempt to find out whether Hambali’s civil rights were observed under US detention.

Indonesia takes pride that it is one of the few countries in the world that observes due process of law, even when dealing with terrorist suspects. The country’s law does not allow unlimited detention, and a person arrested on any criminal charges must be brought before a court of law within a specified period of time. Beyond that time, they should be released.

Bringing Patek to Indonesia would severely test the limits of Indonesian law in dealing with terrorist suspects. There are two possible outcomes of his return to Indonesia: His freedom, or even if he were to face charges, like the three Bali bombers executed before him, he would likely make a complete mockery of the law.