Abu Bakar Baasyir, center. (Antara Photo/Yulius Satria Wijaya)

Critics Question Legal Basis for Terror Convict Abu Bakar Ba'asyir's Release


JANUARY 21, 2019

Jakarta. Convicted terrorist Abu Bakar Ba'asyir is set for release from prison after receiving a pardon from President Joko "Jokowi" Widodo in a widely perceived political move ahead of the 2019 presidential election.

Jokowi said the decision to set Ba'asyir free was based on humanitarian grounds, especially considering the terror convict's health and advanced age.

"First, it's based on humanitarian reasons. He is old … and his current health was also included in our consideration," Jokowi said on Friday, according to a report by state-run news agency Antara.

However, the Institute for Criminal Justice Reform (ICJR) questioned the legal basis of Ba'asyir's unconditional release.

According to the Jakarta-based organization, existing regulations only permit either a conditional release, clemency or amnesty in such cases.

A 2012 government regulation on the rights of inmates and a 2018 regulation by the Ministry of Justice and Human Rights on the conditions for prisoners to receive sentence reductions and pardons, early release is only permitted under certain requirements, which include specific terms for terror convicts.

There does not yet appear to be a legal basis for Ba'asyir's release, and so far, "humanitarian grounds" have been the only reason repeatedly cited by the president and people close to the matter.

Stanislaus Riyanta, a terrorism analyst and postgraduate student from the University of Indonesia, questioned Ba'asyir's unconditional release and warned that a significant potential threat could arise from this.

"The government's decision to unconditionally release Ba'asyir is very odd, as Ba'asyir is a very influential terror convict … especially considering that he has openly refused to adhere to Pancasila," Stanislaus said in a statement, referring to Indonesia's official state ideology. He added that the government should instead pay more attention to victims of terrorism.

Ba'asyir, 81, is the spiritual leader of Al Qaeda-affiliated Jemaah Islamiyah, which was responsible for the 2002 Bali bombings that killed more than 200 people.

He also founded the terrorist group Jamaah Ansharut Tauhid and had pledged alliance to the Islamic State. He has so far served eight years of the 15-year prison term he received in 2011 for funding a paramilitary camp in Aceh.

In March last year, Jokowi approved his transfer to a state hospital in Central Jakarta from Gunung Sindur Prison in Bogor, West Java, due to his deteriorating health.

Sidney Jones, a counterterrorism expert and director of the Institute for Policy Analysis of Conflict (IPAC), criticized Jokowi's decision in an article for the Lowy Institute, an Australian think-tank, saying that the government's decision was "misguided, legally questionable and politically inept."

"It sends the message that if one defies the state long enough, it will eventually capitulate. It emboldens those who see democracy as incompatible with Islam, because that's what Ba'asyir has been arguing all his life," Jones wrote.

Ba'asyir was not granted house arrest last year, with officials explaining at the time that the law did not permit such an arrangement.

Jokowi's unprecedented move, therefore, begs the question of why Ba'asyir should be set free without having to fulfill any requirements.

"Why hasn't he moved to house arrest if he was too infirm to stay in prison? He could have been under constant guard, with restrictions on speech and travel. This way, the police will have their hands full trying to monitor his house," Jones said.

Ba'asyir had reportedly been unwilling to sign a letter of allegiance to Pancasila, one of the requirements to receive parole after having served two-thirds of his prison sentence.

After having discussed the matter with his newly appointed legal advisor, Yusril Ihza Mahendra, Jokowi decided that it was best to ease the requirements for Ba'asyir's release and allow the convicted terrorist to circumvent the part related to Pancasila.

"I wondered: what if we loosen the requirements? Abu [Ba'asyir] said that if he must adhere to Pancasila, Pancasila is in line with Islam, so why not simply adhere to Islam? As he adheres to Islam, Jokowi then gave his approval," said Yusril, who is the chairman of the Crescent Star Party (PBB), an Islamic-based political party that is seeking the implementation of shariah in Indonesia.

The president then instructed Yusril to coordinate Ba'asyir's release with Justice Minister Yasonna Laoly and National Police chief Gen. Tito Karnavian.

But according to Jones, the waiver, even for humanitarian reasons, makes no sense.

Ba'asyir's lawyer, Muhammad Mahendradatta, said during a press conference on Saturday that there was nothing political about his client's pardon.

"This is a legal matter, and not a political one. It's a gift. This is separate from anything political; I reject such claims," Mahendradatta said, as quoted by Antara.

However, in her piece for the Lowy Institute piece, Jones raised an important question – why now? She highlighted that Ba'asyir's health is the same now as it was a year ago, when Jokowi had ignored petitions for his release.

At a news conference in Jakarta on Monday, Chief Security Minister Wiranto said the government was still considering several aspects, including Pancasila, before granting Ba'asyir's release, per the request of his family members.

"The president said we must not be hasty and should consider all relevant aspects," Wiranto told reporters.

On Tuesday, Jokowi reiterated that his decision to grant Ba'asyir an early release was based on humanitarian grounds.

"It will be a release on parole ... with terms and conditions that must be fulfilled," he said, as quoted in a press release.

The president gave assurances that allegiance to Pancasila and the Unitary State of the Republic of Indonesia were among the conditions that could not be disregarded.

Jokowi Urged to Also Pardon Other Convicts

As the president's decision was based on humanitarian reasons, the ICJR urged him to also grant amnesty to other convicts.

The organization said in a statement that Jokowi should commute or overturn the sentences of the 51 inmates who have been on death row for more than 10 years, claiming that being on death row was a form of torture that constituted inhumane treatment.

The ICJR added that Baiq Nuril Makmun and Meiliana should also be granted amnesty.

Nuril was sentenced to six months' imprisonment in November last year for defaming her alleged sexual harasser, while Meiliana was jailed for blasphemy in August last year for complaining about the volume of the adzan, or Islamic call to prayer, coming from the loudspeakers of a mosque near her home in Tanjung Balai, North Sumatra.

"Theirs highlight criminal cases that suppress freedom of expression and opinion, as well as the protection of victims' rights in Indonesia," the ICJR said.

The organization added that Jokowi's humanitarian values should also propel him to make changes on the country's archaic blasphemy law.