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Legal reform urgently needed to confront terrorism
The attack that analysts have been predicting for months has happened â a coordinated terror strike in Jakarta, for which the Islamic State (IS) claimed responsibility
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The attack that analysts have been predicting for months has happened ' a coordinated terror strike in Jakarta, for which the Islamic State (IS) claimed responsibility.
Whereas over the past six years terrorists have almost exclusively targeted police, this incident combined an attack on a symbolic western target (a Starbucks next to a Burger King, a Pizza Hut and a McDonalds) with an attack on a police post. It marks a sinister return to the random targeting of civilians, and Westerners, which has not been seen for many years.
The IS is just the latest in a long list of groups, which derive their inspiration from the same extremist interpretations of Islam, and the attacks, or attempts to attack, will no doubt continue.
Densus 88, among the world's most successful civil anti-terrorist unit, have built up an impressive body of intelligence regarding extremist individuals and networks and have been fearless in infiltrating, apprehending and engaging in forceful actions against terrorists. They have arrested or neutralized over 1,000 terrorists since 2003.
Unfortunately, law enforcers have been let down by law makers, and the courts. It has been revealed that at least two of the attackers had done prison time for terrorism-related offences. Afif or Sunakim participated in a terrorist training camp in Aceh in 2010. He was sentenced to seven years and released after less than five.
Bahrun Naim, an Indonesian who allegedly directed the attacks from Syria, was caught and prosecuted for a plot to attack US President Barack Obama during his visit to Indonesia in 2011. When he was apprehended by police he was in possession of a cache of illegal ammunition. He was not convicted of terrorism offences, rather of offences under the State Emergency Law and sentenced to two and half years imprisonment. After parole and remissions, Bahrun served one year in prison.
Now calls have re-emerged to strengthen the anti-terrorism laws. The law could be improved, but this discussion must be based on an accurate representation of the law and the facts. And it should keep legal measures in step with the gravity of the threat.
Claims that police are unable to act or arrest individuals who they suspect of terrorist-related activity are not exactly accurate. Giving a greater counter-terrorism role to the military, or granting intelligence agents, and other authorities, the power of arrest seems like an unnecessary over-reaction.
In the past, police have not acted to arrest suspected terrorists until they have acquired some level of lethal capacity. But last year, they did arrest individuals suspected of supporting IS where no weapons were present.
Indonesia's primary Anti-Terrorism Law No. 15/2003, has not been revised or updated since it was enacted, following the 2002 Bali bombing. There is nothing in the law that makes it a criminal offence to join a terrorist group.
Nor does it criminalize participating in, or organizing, paramilitary training. However police and prosecutors have improvised a bit ' which leads to uncertain legal outcomes. In 2015, police arrested individuals charged with supporting IS; Afif Abdul Majid was charged with 'conspiracy to attempt to commit terrorism'. The court threw out the IS charges and convicted him of financing the Aceh camp.
On appeal to the Jakarta High Court however the IS charges were affirmed and Afif's sentence was increased from four to six years. His lawyers announced that they would appeal to the Supreme Court.
Other IS supporters were arrested and charged in late 2015 of supporting IS. None of those arrests related to specific or imminent terrorist attacks in Indonesia, and none allege that the defendants had acquired weapons in Indonesia.
Though the outcomes of these cases are unclear, it shows that under existing laws, police can take actions ' but the results are uncertain.
That uncertainty could be avoided by revising the terrorism law, or better yet, enacting a Perppu ' an interim law in a state of emergency ' to criminalize joining a listed terrorist group, or engaging in any acts of support to such a group, and participating in, or organizing, paramilitary training.
The law could also clarify other grey areas such as hate speech. Indonesia does have a law against vilifying ethnic groups or religions, but it is rarely enforced. Another issue could be citizenship. Arguably under existing law an Indonesian who joins a foreign military loses their citizenship automatically.
It could be a neat solution; simply revoke the citizenship of all those who travel to Syria to join IS ' except, for instance to allow selected persons to return for intelligence or deradicalization purposes.
The government could alternatively make it a strict liability offence to travel to a 'conflict zone' without a valid reason. Issues of cyberterrorism and perhaps mandatory minimum sentencing could be clarified in a new law.
But the more controversial it gets the more unlikely it will get through parliament.
One area that does need attention is sentencing and parole. The soft handling and lenient sentences handed down by Indonesia's courts fail to send a strong message of moral condemnation and general deterrence for terrorism offences. Afif Abdul Majid, Bahrun and Sunakim are all cases in point. Around 90 percent of Indonesia's convicted terrorists have received sentences of 10 years or less.
And, after serving two-thirds of the head sentence, the prisoner can apply for parole, and will usually get it. Prosecutors, and judges in particular, need further special training in the handling of terrorism cases.
Given the escalation of the war in Iraq and Syria, attacks in Paris, San Bernardino and now Jakarta ' few would doubt a move by the President to use his constitutional power to enact a Perppu.
But the new law should not grant new policing powers which may jeopardize hard-won rights such as extended incommunicado preventative detention by unidentified intelligence agents. The terrorism law already allows seven days of pre-charge detention, compared to one day under the criminal law. And intelligence agencies can work with police in making arrests.
The current law allows an intelligence report to be used as evidence for arrest. If police or intelligence has information regarding any terrorist danger they have ample legal basis for acting. The position with regard to supporting or joining a group such as IS is not so solid, and hence should be clarified.
Further, these criminal law reforms should be clearly communicated to the public and combined with integrated government and community dialogue to identify communities at risk and take measures to counter the violent narratives of such groups.
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The writer is researching counter terrorism laws for his PhD in law at Charles Darwin University Australia.
