ńňđ. 11
(âńĺăî 23)



expect the judiciary to temper and moderate governmental excesses, but there
appears to be little the judges can do when governments almost invariably
control a sufficient majority in the legislature to push through constitutional
amendments to immunize anything they want to do.107 Perhaps the answer is
in democratic accountability at the ballot box, but experience has shown that
this does not mean much when the electorate either has no real choice of an

Act A514 of 1981 inserted article 150(8) to the Malaysian Constitution. Subparagraph
(a), for instance, provides that the ‘the satisfaction of the Yang di-Pertuan
Agong . . . shall be final and conclusive and shall not be challenged or called in question
in any court on any ground’.
PP v. Dato Seri Anwar bin Ibrahim (No. 3) [1999] 2 MLJ 1 (trial); Dato Seri Anwar bin
Ibrahim v. PP [2000] 4 MLJ 286 (Court of Appeal), [2002] 3 MLJ 193 (Federal Court). See
also note 71.
Wu Min Aun, ‘Sacrificing Personal Freedom in the Name of National Security’, Fourth
Professor Ahmad Ibrahim Memorial Lecture, 12 July 2003, International Islamic
University of Malaysia, http://www.cdu.edu.au/lba/law/staff/wu/wu1.htm. Professor
Wu said despairingly, but not without justification: ‘In the past, governments around
the world have sought new powers to deal with various threats in the name of national
security only for those powers to be later used against their own citizens or their political
opponents. They become laws that never seem to end, even long after their original
purpose had ended.’
Independent Singapore has had nothing but a government which controlled at least two-
thirds (the requirement of most amendments – article 5, Singapore Constitution) of the
seats in Parliament. Malaysian governments have enjoyed a similar domination in
Parliament (the two-thirds majority requirement also pertains to Malaysia – article
159, Malaysian Constitution), save for a brief period following the 1969 elections
which sparked off the race riots. Election campaigns in Malaysia are routinely fought
on the basis that a two-thirds majority is necessary for any government to be effective.

alternative government, or if elections are seldom fought and won on the
basis of legal issues such as these. But socio-political climates change and with
it conceptions of the extent to which judges are allowed or even expected to
intervene in extraordinary situations. Perhaps also public acceptance, toler-
ance or apathy towards the maintenance of a set of perpetual subversion or
emergency laws will turn. Great revolutions in collective values do not often
happen without a struggle with the old order. One can be hopeful that when
the struggle begins,108 if it ever does, these symbolic acts of judicial resistance
to the wrongful use of extraordinary law designed to deal with insurgency,
subversion and terrorism will be a source of inspiration.

One also hopes that the struggle will be a peaceful and constitutional affair.

Indonesia’s Anti-Terrorism Law

Soon after the Bali Bombing occurred on 12 October 2002 killing 202 people,
mostly foreigners and holidaymakers, the government was quick to legislate an
Anti-Terrorism Law. On 18 October 2002 the President issued Government
Regulation in Lieu of Law1 (hereinafter referred to as GRL) No. 1 of 2002
concerning the Eradication of Criminal Acts of Terrorism.2 On the same day
the Government issued GRL No. 2 of 2002 making GRL No. 1 retroactively
applicable to the Bali bombings.3 In 2003, both GRL 1 and 2 of 2002 were
confirmed by the legislature and have become law (GRL 1 is referred to as the
‘Anti-Terrorism Law’).4
This chapter will describe Indonesia’s Anti-Terrorism Law and the diffi-
culties and public controversy the government has faced in trying to imple-
ment it. The chapter will show how the judiciary has attempted to curb some
of the Law’s perceived excesses and it will review recent legal developments. It
will be argued that, for Indonesia, terrorism is a complex and multi-faceted
issue that cannot be addressed simply by promulgating a new law.

I. The substance
The Anti-Terrorism Law provides four reasons for its promulgation. First,
terrorism had ‘claimed human lives intolerably and raised widespread fear
among the community [and] caused loss of freedom and damage of

GRL is a form of legislation enacted by the President in emergency circumstances. In the
hierarchy of Indonesian law Perpu is one rank below a Law or Act (Undang-undang).
Under the Constitution it is required for the Perpu to be brought to the parliament within
one year after its promulgation to be confirmed or rejected as law.
For an English translation, see: http://www.law.unimelb.edu.au/alc/indonesia/perpu_1.html.
For an English translation, see: http://www.law.unimelb.edu.au/alc/indonesia/perpu_2.html.
The GRL No. 1 of 2002 becomes Law No. 15 of 2003 and GRL No. 2 of 2002 becomes Law
No. 16 of 2003. This chapter uses the unofficial translation of these laws into English as
found in the sources cited above, notes 2 and 3.


property’.5 Second, terrorism had maintained extensive networks, posing a
threat to national and international peace and security.6 Third, national
legislation was required to implement international conventions relating to
terrorism.7 Lastly, the Anti-Terrorism Law was a matter of urgency because
existing legislation in Indonesia was inadequate and failed to deal compre-
hensively with combating criminal acts of terrorism.8
The Anti-Terrorism Law applies to any person (including a corporation9)
who commits or intends to commit a criminal act of terrorism in Indonesia
and/or another nation that has jurisdiction and expresses an intention to
prosecute that person.10 It also applies to criminal acts of terrorism which are
committed: ‘(a) against the citizens of Indonesia outside the territory of
Indonesia; (b) against the state facilities of Indonesia overseas, including
the premises of the diplomatic officials and consuls of the Republic of
Indonesia; (c) with violence or threats of violence to force the Government
of Indonesia to take or not to take an action; (d) to force any international
organization in Indonesia to take or not take an action; (e) on board a vessel
sailing under the flag of Indonesia or an aircraft registered under the laws of
Indonesia at the time when the crime is committed; (f) by any stateless person
who resides in Indonesia’.11
Terrorism is defined generally under the Anti-Terrorism Law as the intentional
use of ‘violence or the threat of violence to create a widespread atmosphere of
terror or fear in public or to create mass casualties, by forcibly taking the
freedom, life or property of others or causes damage or destruction to vital
strategic installations or the environment or public facilities or international
facilities’.12 Those who commit this kind of act of terrorism can be sentenced to
death, or life imprisonment, or a minimum sentence of four years and a
maximum of twenty years.13 Those who have the intention to commit an act
of terrorism can be sentenced to a maximum of life imprisonment.14
Specific acts of terrorism defined under the Anti-Terrorism Law include a
range of specific offences relating to various aspects of aviation security,15
explosives, firearms, and ammunition,16 and the use of chemical, biological,
and other weapons to ‘create an atmosphere of terror or fear in the general
population, causing danger and destruction to vital strategic installations or
the environment or public facilities or international facilities’.17 Penalties for
these offences range from life imprisonment or death to incarceration for a
period of between three or four years and twenty years. It should be noted,

See GRL No. 1 of 2002, considerations section (b). The full text in Bahasa Indonesia is
available at http://www.ri.go.id/produk_uu/isi/perpu2002/perpu1’02.htm.
6 7
Ibid., considerations section (c). Ibid., considerations section (d).
8 9
Ibid., Article 17. 10 Ibid., Article 3 (1).
Ibid., considerations section (e).
11 12
Ibid., Article 6. 13 Ibid. 14 Ibid., Article 7. 15 Ibid., Article 8.
Ibid., Article 4.
Ibid., Article 9. 17 Ibid., Article 10.

however, that the Anti-Terrorism Law provides that the various acts of
terrorism will not be applicable to ‘political criminal acts or criminal acts
relating to criminal crimes nor criminal acts with political motives nor criminal
acts with the political objective of obstructing an extradition process’.18
Those who intentionally provide or collect funds19 or assets20 with the
‘objective that they be used or if there is a reasonable likelihood that the funds
will be used partly or wholly’ for criminal acts of terrorism will bear criminal
responsibility under the Anti-Terrorism Law and can be sentenced to a
minimum three years or a maximum of fifteen years imprisonment.21
A person also commits an act of terrorism if such person intentionally
provides or collects assets with the objective or if there is a reasonable
likelihood that the assets will be used partly or wholly for: (a) committing
any unlawful act of receiving, possessing, using, delivering, modifying
or discarding nuclear materials, chemical weapons, biological weapons,
radiology, microorganisms, radioactivity or its components that causes
death or serious injuries or causes damage to assets; (b) stealing or seizing
nuclear materials, chemical weapons, biological weapons, radiology, micro-
organisms, radioactivity or its components; (c) embezzling or acquiring
illegally nuclear materials, chemical weapons, biological weapons, radiology,
microorganisms, radioactivity or its components; (d) requesting nuclear
materials, chemical weapons, biological weapons, radiology, micro-
organisms, radioactivity or its components; (e) threatening to: (1) use such
nuclear materials, chemical, biological weapons, radiology, microorganisms,
radioactivity or its components to cause death or injuries or damage to
property; or (2) commit criminal acts as stipulated in (b) with the intention
to force another person, an international organization, or another country to
take or not to take an action; (f) attempting to commit any criminal act as
stipulated in (a), (b) or (c); and (g) participating in committing any criminal
act as stipulated in (a) to (f). The sentence for those found guilty is impri-
sonment with a minimum sentence of three years and a maximum of
fifteen years.22 Any person found guilty of intentionally providing assistance
to any perpetrator by: ‘providing or lending money or goods or other assets
to any perpetrator of criminal acts of terrorism; harbouring any perpetrator
of any criminal act of terrorism; or hiding any information on any criminal
act of terrorism’ is liable to imprisonment for a minimum term of three years
and a maximum of fifteen years.23 Planning or inciting another person to
commit any criminal act of terrorism can result in the death sentence or life

Ibid., Article 5. 19 Ibid., Article 11. 20 Ibid., Article 12.
Ibid., Articles 11 and 12. 22 Ibid., Article 12. 23 Ibid., Article 13.
Ibid., Article 14.

Moreover, any one who ‘conducts any plot, attempt, or assistance to
commit any criminal act of terrorism’ will be sentenced the same as those
who are committing such an act of terrorism.25
One interesting point to note is that the Anti-Terrorism Law can also be
applied to those who provide any assistance, facilities, means or information
for any criminal acts of terrorism committed extraterritorially. The sentence
is the same as for committing the act of terrorism itself.26 Indonesia is obliged
to cooperate with other nations in the areas of ‘intelligence, policing and
other technical cooperation connected with anti-terrorism measures in
accordance with the applicable legislative provisions’.27
The Anti-Terrorism Law introduces a novel procedure from that of ordin-
ary criminal procedure, namely that an investigator may use any intelligence
report as preliminary evidence.28 However, the Anti-Terrorism Law provides
that the adequacy of the preliminary evidence obtained must be determined
through an inquiry process by the Head or Deputy Head of the District Court.
The inquiry process is conducted in closed session within a maximum period
of three working days.29
Various extraordinary powers are conferred on investigators, public prose-
cutors or judges. Investigators may detain any person strongly suspected of
committing a criminal act of terrorism based on adequate preliminary evidence
for a maximum period of seven times twenty-four hours.30 Investigators, public
prosecutors or judges are authorized to order banks and other financial institu-
tions to freeze the assets of any individual whose assets are known or reasonably
suspected to be the proceeds of any criminal act connected to terrorism.31 In
addition, for the purpose of investigation, the investigators, public prosecutors
or judges are authorized ‘to request information from banks and other financial
institutions regarding the assets of any person who is known or strongly sus-
pected of having committed a criminal act of terrorism’.32
Furthermore, investigators are authorized: ‘to open, examine and confis-
cate mail and packages by post or other means of delivery’ and ‘to intercept
any conversation by telephone or other means of communication suspected
of being used to prepare, plan and commit a criminal act of terrorism’.33
However, investigators may only intercept based on an order of the Head of
the District Court for a maximum period of one year.34
The Anti-Terrorism Law stipulates other criminal offences related to acts
of terrorism. For example, any person who uses violence or the threat of
violence or who intimidates detectives, investigators, public prosecutors,
solicitors and/or judges who are handling any criminal act of terrorism, so
as to hamper the judicial process, is guilty of an offence subject to a minimum

Ibid., Article 15. 26 Ibid., Article 16. 27 Ibid., Article 43. 28 Ibid., Article 26 (1).
Ibid., Article 26. 30 Ibid., Article 28. 31 Ibid., Article 29 (1).
Ibid., Article 30 (1). 33 Ibid., Article 30. 34 Ibid., Article 31 (1) a and b.

sentence of three years and a maximum of fifteen years. And a person who
provides false testimony, submits false material evidence, or unlawfully
influences a witness during a court session or attacks a witness, including
the officials in the trial of a criminal act of terrorism, is guilty of an offence
subject to a minimum sentence of three years and a maximum of fifteen years.
Witnesses, investigators, judges, and their families are entitled to protection
by the state before, during, and after the investigation process.35
The Anti-Terrorism Law also imposes an obligation on the state to pay
compensation and restitution to victims and families of victims of terrorist
acts.36 In addition, any individual shall be entitled to rehabilitation if he or
she is discharged of all legal charges of terrorism by the court.37
Provisions of the Anti-Terrorism Law may be applied retroactively to acts
of terrorism that occurred prior to the promulgation of this Anti-Terrorism
Law.38 The Anti-Terrorism Law has been used retroactively to arrest and try a
number of terrorist suspects, such as Amrozi, Imam Samudera and Ali Imron
in connection with the Bali bombing. They have all been sentenced either to
death, life or a term of imprisonment.

II. The challenges in implementation
Indonesians greeted the Anti-Terrorism Law with ambivalence. Although
they hoped terrorism would soon cease with the issuance of the Law, they
were also suspicious that the Law would give rise to authoritarian govern-
ment and the revival of the military. In addition, people were afraid that
Indonesia had joined an American-led war against Islam, not terrorism. The
public ambivalence should be understood in the Indonesian context.
Indonesia has a majority Muslim population. Although most Indonesian
Muslims are moderate, many believe that the war against terrorism is a war
against Islam.
As a country Indonesia is not free from terrorism. Terrorism involves not
only religious attacks but communal conflict and separatist movements.
There are concerns that terrorism may destabilize the government. At the
same time, there is a feeling in some quarters that terrorism is justified as a
means to attack western arrogance and dominance. There is a feeling that
Indonesia is the victim of bullying by foreign countries who are interested in
making sure that Indonesia does not become a safe heaven for terrorist
suspects. But at the same time, the public understand the image of
Indonesia as a place where terror attacks have taken place. The image has
hurt the economy and the trust of foreign investors.

Ibid., Article 33. 36 Ibid., Article 36. 37 Ibid., Article 37.
Ibid., Article 46. See also GRL No.2 of 2002.

The Anti-Terrorism Law has affected human rights in Indonesia. Promotion
and protection of human rights are considered important because Indonesia
fell under authoritarian regime for almost three decades. The public is very
sensitive to any neglect and violation of human rights.
For the Indonesian public, the US and Australia have lost their persua-
siveness and moral authority because their anti-terror efforts are perceived to
be inconsistent with their prior human rights sermons to Indonesia. Such
double standards have become a convenient means for the Indonesian public
to attack the US and Australia who in the past had been perceived to be
constantly bullying Indonesia to respect human rights. In addition, the
Indonesian public believes that the war against terror should not be fought
at the expense of human rights. For example, the Chairman of Indonesia’s
second largest Muslim organization, Muhammadiyah, has stated that the war
against terror has confused the government, but that the government should
not ignore human rights.39
For the public, the war against terror has had a negative impact on the
promotion and protection of human rights in Indonesia for the following reasons.
First, the Indonesian government has been criticized for not protecting its
nationals abroad where they may have suffered human rights violations. For
example, Australian authorities went to the house of Indonesian Muslims resid-
ing in Australia with guns drawn and sledgehammers to break down doors.40
The Indonesians were suspected of having connections with Abu Bakar Ba’asyir
who is believed by the US and Australia to be the leader of Jemaah Islamiyah (JI).
In Indonesia, the public believed this event not to be in accordance with human
rights. The Indonesian parliament, DPR, urged the government to lodge a
protest against what they called a human rights violation.41 To appease the
public, the Ministry of Foreign Affairs lodged a protest to the Australian govern-
ment through its Embassy in Jakarta,42 but shied away from DPR’s demand to
investigate the matter in Australia.43 The public also demanded that the
Indonesian government ask the Philippines government to explain the unnatural

‘Religious leaders want police to respect human rights’, The Jakarta Post, 13 November
2002, available at http://www.thejakartapost.com/Archives/ArchivesDet2.asp?FileID=
‘Australian police raid terror suspects’, BBC News, 30 October 2002, available at http://
news.bbc.co.uk/2/hi/asia-pacific/2374505.stm. Also: ‘Eye-witness describes violent police
raid in Australia’, World Socialist Web Site, 2 November 2002, available at http://
‘Rights abuses occur in Australian raids: House’, The Jakarta Post, 20 November 2002,
‘Australian envoy summoned over antiterrorism raids’, The Jakarta Post, 2 November
2002, http://www.thejakartapost.com/Archives/ArchivesDet2.asp?FileID=20021102.@03.
‘Legislator wants probe into raids in Australia’, The Jakarta Post, 18 November 2002, available
at http://www.thejakartapost.com/Archives/ArchivesDet2.asp?FileID=20021118. A02.

death of terrorist suspect Al-Ghozi, who is believed to have been executed extra-
judicially by the Philippines military on the eve of US President Bush’s visit to the
There are also concerns about the exact whereabouts and treatment of
Al-Faruq and Hambali who are currently in US custody. And there are calls
that they should be extradited back to Indonesia for trial.45 The Minister of
Foreign Affairs has defended government inaction on the grounds that acts of
terrorism are ‘non-traditional criminal acts’ that do not warrant protec-
tion.46 Moreover, doubts have been raised whether some suspects are
Indonesian nationals that the government should protect.47
Second, international pressure is mounting on the Indonesian government
to arrest several Muslim leaders, including Abu Bakar Ba’asyir. The police and
prosecutors have proceeded against him even when they had no solid ground
for prosecution. The lower court found Abu Bakar Ba’asyir guilty of treason in a
plot to overthrow Indonesia’s secular government, but cleared him of charges of
being the leader of the Jemaah Islamiyah.48 Later on, the Appeal Court reduced
his sentence from four to three years and found him guilty only of forging
identity documents. On 9 March 2004 the High Court ruling was overturned
by the Supreme Court, leaving only minor immigration offences outstanding.
Ba’asyir’s sentence was reduced to eighteen months.49
On the eve of his release on 30 April 2004, Indonesian police rearrested
Abu Bakar Ba’asyir. The police said they had new evidence that he was a
senior leader of JI.50 Ba’asyir, who has served his sentence for immigration
offences, denies being the group’s spiritual leader and any involvement in the
Bali bombing. As he was about to be taken into police custody from the jail,
hundreds of his supporters clashed with police. Targeting Muslim leaders has
offended the public and as a result, the public has been very critical of Anti-
Terrorism Law enforcement.

‘Philippine president denies JI bomb-maker was executed’, AFP, 14 October 2003, http://
‘RI interested in interrogating Hambali’, The Jakarta Post, 17 August 2003, available at
‘Hassan seeks US permission to question Hambali’, The Jakarta Post, 27 August 2003, available
at http://www.thejakartapost.com/Archives/ArchivesDet2.asp?FileID=20030827.B02
For example Hambali and al-Ghozi’s nationality was doubted by Indonesian authorities as
Indonesian as they were using several passports. See: ‘Police say al-Ghozi is Canadian
national’, The Jakarta Post, 22 January 2002, available at http://www.thejakartapost.com/
‘Indonesian appeals court reduces sentence of militant leader’, Associated Press,
1 December 2003, available at http://www.startribune.com/stories/1576/4241535.html.
‘Indonesian cleric ‘‘free in weeks’’’, BBC News, 9 March 2004, available at http://news.
‘Indonesian cleric faces Bali charge’, BBC News, 30 April 2004, available at http://news.

Third, a number of persons have reportedly disappeared or have been forcibly
taken into custody by the police because of their alleged terrorist links.51 The
police have apprehended without due process of law persons thought to have
received training in Afghanistan during the Afghan war. Human rights watch-
dogs and the Muslim community have criticized such police actions for violating
basic human rights.52 The police have denied accusations that they have kid-
napped a Muslim activist by reference to their powers under the Anti-Terrorism
Law.53 Concerns have been expressed about the targeting of Muslims. Pesantren,
an Islamic boarding school, has been suspected by the US government as a place
to train Islamic militants who support terrorism.54 The police have raided
Pesantren as part of a terrorism investigation.55
The war on terror has relieved external pressure on the Indonesian govern-
ment to respect human rights. Foreign countries are ready to overlook
Indonesia’s human rights abuses so long as the government is cooperative
in the war against terror. The US, which had in the past expressed concerns
about the condition of human rights in Indonesia, has not been exerting such
pressure because the US needs Indonesia’s support in its war on terror.
The public in Indonesia has resented the silence of international NGOs
about human rights abuses of Indonesian nationals abroad who are suspected
of terrorism. There is a perception of unfair double standards when NGOs
fiercely criticize Indonesia for human rights abuse but are silent about the
abuse of the human rights of Indonesians by other countries. The negative
impact of the war against terror on human rights has caused the public in
Indonesia to question whether human rights are only an instrument to weaken
Indonesia as a country, including its government and military.
The war on terror has led to Western countries traditionally seen as
‘defenders of human rights’ to encourage and expect abuses of human rights

‘Arrested or disappeared? Families, police at odds’, The Jakarta Post, 16 September 2003, avail-
able at http://www.thejakartapost.com/Archives/ArchivesDet2.asp?FileID=20030916.C01.
‘Police arrests human rights’, The Jakarta Post, 17 September 2003, available at http://
‘Police meet Muslim leaders over arrests of activists’, The Jakarta Post, 20 September 2003
available at http://www.thejakartapost.com/Archives/ArchivesDet2.asp?FileID=20030920.@01.
According to Virtual Information Center, there were many reports indicating that the
children at Pesantren spend their entire childhood, in many cases, learning to hate the West
and to blame it for all the ills of their society. Many of these graduates return home,
committed to running jihads and to creating Islamic states governed by sharia (Islamic
law), see http://www.vic-info.org/RegionsTop.nsf/0/43dd40e1787c7bfd0a256d98001231b5?
OpenDocument. The US government for this purpose has been funding the Indonesian
government to insert anti-terrorism in Pesantren’s curriculum. See: ‘Anti-terrorism now
part of curriculum’, The Age, 30 August 2003, available at http://www.theage.com.au/
‘Police negotiating with ‘‘pesantren’’ over suspects’, The Jakarta Post, 20 November 2002,
available at http://www.thejakartapost.com/Archives/ArchivesDet2.asp?FileID=20021120.@01.

to recur in Indonesia. For example, Australia announced in August 2003 a
plan to resume ties with the Indonesian special force, Kopassus, which were
broken off in 1999 when the latter was accused of orchestrating mass violence
in East Timor.56 Cooperation with Kopassus had been seen as necessary
because Kopassus provides Indonesia’s main counter-terrorism capability.
The proposed cooperation received criticism within Australia,57 causing the
Australian Foreign Minister to argue that the ties would be qualified and
limited.58 The cooperation has been placed on hold after the Chief of
Kopassus was refused entry into Australia and Kopassus became reluctant
to engage in joint exercises.59
Human rights protection and promotion in Indonesia can be undermined
if powerful states condone or encourage such a state of affairs. This leads to
the conclusion that foreign governments do not have a sincere intention of
upholding human rights in Indonesia. They rather have used human rights
issues as a political instrument against Indonesia. Since the launch of the war
against terror, Indonesia’s human rights cause has become one of its casual-
ties through the revival of legislation legitimizing human rights abuses from
what was thought to be a bygone era.
There has been public criticism that the former Megawati government has
erroneously bowed to the US and its allies in the fight against terrorism,60
despite the fact that Indonesia has itself fallen victim to terrorism.61

III. Judicial review
In November 2003 the application of Anti-Terrorism Law in the Bali bomb-
ing was challenged in the Constitutional Court by Masjkur Abdul Kadir, who
was sentenced to fifteen years’ imprisonment for his involvement in the

‘Canberra renews Kopassus ties,’ CNN.com, 11 August 2003, available at http://
‘Aust Defence-Kopassus ties questioned,’ ABC Online, 1 August 2003, available at http://
‘Kopassus cooperation ‘‘limited’’: Downer’, ABC Newsonline, 13 August 2003, available at
‘Kopassus chief’s trip to Perth vetoed’, The Age, 13 October 2003, available at
http://www.theage.com.au/articles/2003/10/12/1065917273113.html?from=storyrhs. Also:
‘Kerjasama Kopassus-SAS Australia Dibatalkan Sampai Waktu Tidak Terbatas
(Cooperation Kopassus-Australia’s SAS Delayed for Unlimited Period)’, Republika
Online, 16 October 2003, available at http://www.republika.co.id/berita/online/2003/10/
‘Legal, human rights experts worried about dangerous trend’, The Jakarta Post,
21 September 2001, available at http://www.thejakartapost.com/Archives/ArchivesDet2.asp?
FileID=20020921. A04.
Indonesia had been experiencing numerous bomb attacks. Notable attacks occurred in
Bali in October 2002 and in Jakarta at the J.W. Marriot Hotel in August 2003.

deadly attack in Bali. The basis for the challenge was that the Anti-Terrorism Law
cannot be applied retroactively.62 It was argued that the retroactive application of
the Anti-Terrorism Law contradicted the Constitution which states that a person
has the right not to be tried under a law with retroactive effect.63
On 23 July 2004 the Constitutional Court gave its decision that the retroactive
principle in the Anti-Terrorism Law violated the Constitution. Five out of nine
judges agreed while the other four were against. The Constitutional Court argued
that since acts of terrorism do not constitute international crimes, or ‘gross
violation of human rights’, the retroactive principle may not be applied.
The decision raised controversy among Indonesians. Some were con-
cerned that the ruling could lead to the acquittals of those convicted in the
Bali bombing. But others felt that the Constitutional Court decided correctly.
The government is of the opinion that, despite the Constitutional Court’s
ruling, those convicted of the Bali bombings will not be automatically
released. It remains to be seen whether the Constitutional Court decision
will be used by those convicted as new evidence prompting their release or,
alternatively, whether the Supreme Court will annul its decision based on the
Constitutional Court’s ruling. As of October 2004, there has not been any
legal action by lawyers for those convicted in the Bali bombings.
The Attorney General’s Office has decided to follow the Constitutional
Court ruling and charge those who have not been convicted of the Bali
bombings with other crimes. For example, Abu Bakar Ba’asyir will not be
charged in relation to the Bali bombings based on the Anti-Terrorism Law.
Instead, the Attorney General’s Office will use the Anti-Terrorism Law to
charge him with masterminding the J. W. Marriot Hotel bombing which
occurred after the Anti-Terrorism Law was promulgated.

IV. The Kuningan bombing
Despite the Anti-Terrorism Law and after two noted terrorist bombing
incidents in Bali and Jakarta, on 9 September 2004 Indonesia experienced
another huge bomb blast. The bomb was targeted at the Australian Embassy
located in the Kuningan area, South Jakarta. Although no Australian Embassy
personnel died, the blast killed 11 people and injured more than 150.
The government condemned the terrorist act and people deplored the
attack. The police were quick to react. Within a few days they revealed that

‘Court reviewing law on terror’, The Jakarta Post, 21 January 2004, available at http://
Constitution, art. 28 (I) (1) which provides as follows: ‘The rights to life, freedom from
torture, freedom of thought and conscience, freedom of religion, freedom from enslave-
ment, recognition as a person before the law, and the right not to be tried under a law with
retroactive effect are all human rights that cannot be limited under any circumstances.’

the bomb had been detonated by a suicide bomber. The police have arrested
persons suspected of having involvement in the attack. The police, however,
have not been successful in capturing the most wanted suspects, Dr Azahari
bin Husin and Noordin Mohammed Top, both Malaysian nationals.

V. Further amendment
Currently there are preparations to amend the Anti-Terrorism Law.64 The
Ministry of Law and Human Rights which has responsibility for preparing the
draft amendment has made some proposed revisions. Revisions include
providing that the sale of bomb materials be considered an act of terrorism
punishable by up to fifteen years’ imprisonment. Persons who know about a
terrorism act but who do not report it could also be jailed for up to fifteen
years. Persons who become a member of an organization that has the intention
to commit acts of terrorism could also receive jail terms of three to fifteen years.
This proposed offence would include wearing clothes associating a person with
the organization. Those who plan acts of terrorism, whether they occur or not,
could also be punished by death or three to fifteen years of imprisonment
under the proposed amendments. The amendments also propose that officers
of an organization can be held responsible for terrorist acts committed by the
The rules of procedure would also be revised. A person suspected of acts of
terrorism could be detained longer that at present, up to 120 days. Investigators
would be allowed to detain any person suspected of terrorism based on sufficient
preliminary evidence for up to 30 days without notifying the detainee of his
status as a suspect. Police would also have more power to arrest suspects.
In addition, investigators may open, examine and seize letters and goods sent
by post and eavesdrop based on sufficient preliminary evidence.
The proposed amendments have received fierce criticism from human rights
proponents and some law professors, on the basis that they have the potential to
violate human rights. To take one example: the criminal rule of procedure provides
that a person can be arrested for a day, but the prevailing Anti-Terrorism Law
has extended this period to seven days and the amendments would further extend
it to thirty days. There are also concerns that fishermen may be suspected of acts
of terrorism because they commonly use small detonators to fish.

VI. Conclusion
The enactment of the Anti-Terrorism Law has not prevented Indonesia from
being a target of national and international terrorist attacks. Implementation

‘Revisi UU Antiteroris Potensial Langgar HAM (Revision to Anti-Terrorism Law has
Potential to Violate Human Rights)’, Kompas, 31 October 2004.

and enforcement of Anti-Terrorism Law has not been an easy task. The fact
that combating terrorism is led by Western countries has caused the
Indonesian public to be suspicious. Debate has shifted from fighting terrorist
acts to concerns that Western countries are undermining Indonesia’s
The Anti-Terrorism Law gives legitimacy to law enforcement agencies that
use legal measures different from those available for other criminal offences.
Moreover, it imposes severe sanctions on those who commit acts of terror-
ism. Yet the Anti-Terrorism Law has not been effective in eradicating terrorist
acts in Indonesia. The threat of severe sanctions including the death penalty
will not deter those who believe they are fighting a jihad that will reward them
a place in heaven. Those with such beliefs will go anywhere in Indonesia or
elsewhere for the opportunity to die in a holy war.
The problem of terrorism in Indonesia runs deeper than promulgating a
law to combat terrorism. Terrorism for Indonesia is a complex and multi-
faceted issue. The government has taken firm actions supported by the
majority of the people. Nevertheless, these actions have yet to satisfy coun-
tries such as the US and Australia whose nationals are threatened. Facing the
Indonesian condition and context it would be relatively difficult for any
government in Indonesia to combat terrorism. It should be understood
that Indonesia’s challenge in combating terrorism is different from that
faced by the US or Australia.

The Philippines: the weakest link
in the fight against terrorism?

Terrorism has become a franchise. Its manufacturers had astutely recognized
early on that the southern part of the Philippines is an ideal market. The
Philippines is not a very large country but it has played a significant role in the
spread of terrorism even beyond the boundaries of Asia. The country’s
location, history and geopolitics offered an ideal breeding ground for terror-
ism to spread. The same factors that made it attractive to terrorists, however,
offer significant potentials that could be tapped by the Philippine authorities
to make the country play an equally significant role in the fight against
terrorism.1 To make this happen, it is important that the government of the
Philippines acknowledges the true extent of the problem within its bound-
aries, proclaims a commensurate policy and exhibits true political will.
While the rest of the countries in the region are busy apprehending and
trying suspected terrorists, the Philippines achieved unprecedented embar-
rassment when one of the region’s most wanted terrorists, Indonesian Fathur
Roman Al Ghozi, escaped from the national headquarters of the Philippine
National Police.2 Al Ghozi was suspected of masterminding the 30 December
2001 bombing of a commuter train that resulted in the death of more than
fifty individuals.3
Al Ghozi was subsequently killed following a massive manhunt4 but his
escape highlighted the Philippines’ weakness when it comes to dealing with

The Philippines was colonized by Spain despite the country’s lack of economic promise as
it was thought to be a valuable stepping stone to China and Japan. The Philippines was also
intended to be Spain’s base for conquest of neighbouring nations. It was also a trans-
shipment base for regular trade between Mexico and China through the galleon trade. See
Renato Constantino, The Philippines: A Past Revisited (Quezon City, Tala Publishing,
1975), 56–57.
See ‘Al-Ghozi had ‘‘walked out’’ to escape from police camp’, The Nation, 14 October 2003
Maria Ressa, Seeds Of Terror: An Eyewitness Account Of Al -Qaeda’s Newest Center Of
Operations In Southeast Asia (New York, Free Press, 2003), at 134–135.
See ‘Profile: Fathur Rohman al-Ghozi’, 13 October 2003, BBC News, http://news.


terrorism: there is an official policy5 but it is lacking when it comes to
implementation and sustainability.
The escape of one of Asia’s most wanted terrorists was not an isolated
incident of negligence or complicity. During the two incidents when foreign-
ers were kidnapped, repeated news reports cited the complicity of officials
with terrorists.6 Hostages themselves alluded to high-ranking military offi-
cials demanding their share of the ransom pie.7 Certainly, Manila’s failure to
conduct an impartial investigation into these complaints created the percep-
tion that, in addition to failing to have a workable and credible national
policy against terrorism, some of the country’s policy-makers and high
ranking officials may in fact be part of the problem.

I. The Philippines and terrorism
The Philippines is no stranger to terrorism. Even before 9/11, it figured in the
global news for the abduction of no less than twenty European tourists from a
high-end dive resort in Sipadan, Malaysia.8 The kidnapping happened on a
Malaysian island but the victims were brought to Mindanao in the
Philippines. The culprit was the Abu Sayyaf, a group that exhorted Islamic
fundamentalism at the same time that it was engaged in kidnapping for
ransom, beheading, and bombing of public places.9
Prior to the Sipadan hostage taking, the Abu Sayyaf was involved in the
bombing and pillage of Ipil town, in the Province of Zamboanga, in
Mindanao.10 Two years later, the Abu Sayyaf made the headlines again for
the kidnapping of tourists from another high-end resort. This time the

The Philippine policy on terrorism is contained in Memorandum Order No. 37 dated
12 October 2001 signed by President Gloria Macapagal-Arroyo. It is referred to as the
‘Fourteen Pillars versus Terrorism’. These are: (1) Supervision and Implementation of
Government Policies and Actions of the Government against Terrorism, (2) Intelligence,
(3) Strengthen Internal Focus against Terrorism, (4) Accountability of Public and Private
Corporations, (5) Synchronize Internal Efforts with Global Outlook, (6) Legal Measures,
(7) Christian Muslim Solidarity, (8) Vigilance against Movement of Terrorism,
(9) Contingency Planning, (10) Security Plan, (11) Support to Overseas Filipino
Workers, (12) Modernization of the Armed Forces and the Police, (13) Seek Media
Support, and (14) Political, Social and Economic Measures.
See ‘Negotiator says Aventajado wanted ransom cut’, 12 December 2003, Inquirer News
Service, http://www.inq7.net/nat/2003/dec/13/nat_3-1.htm.
Gracia Burnham (with Dean Merrill), In the Presence of My Enemies (Wheaton, Tyndale
House, 2003), at 223.
See ‘Libya and the Jolo Hostages’, 20 August 2000, ICT, http://www.ict.org.il/articles/
For a history of the Abu Sayyaf, see Marites Vitug and Glenda Gloria, Under The Crescent
Moon: Rebellion In Mindanao (Quezon City, Ateneo Center for Social Policy and Public
Affairs; Institute for Popular Democracy, 2000), 235–6.
See http://www.mahk.com/sc1522.htm.

kidnapping happened on the Philippine island of Palawan. The equation had
changed for a government that had been a long-time American ally. For the
first time the Abu Sayaff kidnapped American nationals: Christian mission-
aries Martin and Gracia Burnham and Guillermo Sobero.11
The Philippine government was quick to publicly denounce the Abu
Sayyaf and to announce a policy of no ransom and no negotiations with
terrorist groups on both kidnappings.12 This was lip service.
In the Sipadan incident, the German publication Der Speigel alleged that no
less than the chief hostage negotiator, Roberto Aventajado, a member of then
President Joseph Estrada’s cabinet, was heard on a satellite telephone conversa-
tion intercepted by German authorities as ‘haggling for a sizeable amount of the
ransom’ paid by the Libyan government to effect the release of the hostages.13
Aventajado would later deny this vehemently in a book that would be published
in 2003.14 To date, however, Aventajado has not demanded a public apology or
initiated a libel suit against the German publication.
In another hostage taking incident that occurred earlier, one victim nar-
rated an incident when she overheard a conversation between the bandits and
an official of the armed forces of the Philippines regarding the schedule of a
future military initiative against the bandits.15 The incident is only one of a
number of reports that confirm the collusion between the Philippine military
and the bandit group.
A more graphic first hand account would be provided later by Gracia
Burnham, the only one of the three American hostages who survived the
incident. She wrote a book about her experience. In one instance she recalled
a conversation between her captors and, apparently, someone from the
Philippine military talking about splitting the ransom paid by private groups
to effect their release.16 She also narrated how she and her captors would
rendezvous with military appointed liaisons for the sale of arms to the bandit
group coming from the armoury of the armed forces of the Philippines.17
Philippine authorities later disputed Burnham’s allegations. There was a

Burnham, My Enemies, at 1–20.
See ‘‘‘My Conscience is Clear’’ Aventajado on the hostage negotiations’, Asiaweek,
29 September 2000, http://www.asiaweek.com/asiaweek/magazine/2000/0929/nat.phil.
See ‘Ransom for Jolo hostages went to politicians’, Der Spiegel, 11 December 2000.
http://babel.altavista.com/babelfish/urltrurl?lpÂĽde_en&urlÂĽhttp%3a%2f %2fwww.spiegel.
de%2 fspiegel%2fvorab%2f0,1518,107009,00.html.
Roberto Aventajado, 140 Days of Terror in the Clutches of the Abu Sayyaf (Pasig City,
Philippines, Anvil Publishing, 2003), 104–10. It was also stated that $25 million was paid
to release the Sipadan hostages (at 195).
Jose Torres, Jr., Into the Mountains: Hostaged by the Abu Sayaff (Manila, Claretian
Publications, 2001), at 33.
Burnham, My Enemies, at 223. 17 Ibid. at 150.

public outcry in the Philippines following the publication of Burnham’s
book. No less than Acting Justice Secretary Merceditas Gutierrez flew to the
US to see Burnham, only to be told that there had been in fact many other
incidents that she had chosen to omit in the book.
Five days after the Burnham abduction there was an incident that best
corroborated the reports about the collusion. On 1 June 2002, an irate
President Gloria Macapagal-Arroyo, fresh from her assumption of the
Presidency, ordered an all out military attack on the Abu Sayyaf whose
members had been sighted in Lamitan. It was curious that despite the red
alert status following the abduction, the bandits were able to transfer their
hostages from Palawan to Basilan, ‘dodging’ military checkpoints in the
process.18 There was a heavy firefight between the military and the bandits.
The bandits took their victims to a hospital at the centre of the Lamitan town.
No less than 3000 military personnel were involved in the encounter.
Helicopters were deployed to the town and all possible exits from it were
sealed. The hardware was enough to convince any observer that the Palawan
hostage taking would end swiftly afterwards. To the surprise and condemna-
tion of many people, soldiers guarding the rear end of the hospital were
ordered by their superiors to abandon their posts. This gave the bandits an
opportunity to leave town with the Americans and the hostages, except for
two Filipinos.19 The police and the civilians refused to leave the area and were
left to engage the bandits while the latter made their hurried escape.
An International Peace Mission, reporting on its investigation of the
Lamitan siege, reported:
A few hours before the Abu Sayyaf ’s escape, Brig. Gen. Romeo Dominguez
allegedly met with the family of one of the hostages in a hotel in Zamboanga
City. Several hours after the meeting, the general arrived at Lamitan carrying a
black briefcase containing bundles of P1000 bills. Asked by a nurse as to when
the fighting would end, the general smiled and said, it will end soon . . . . The
General left still carrying the attache case. When he went back to the hospital,
the attache case was no longer with him but two of the hostages were.
Witnesses inside the hospital claimed to have heard conversations among
the Abu Sayyaf members signifying the ransom had been paid for two of the
hostages. Other witnesses narrated how they tried to warn the soldiers about
the kidnappers escape but were ignored . . . . A captain of the military alleged
that everything in the Lamitan siege was scripted. As early as two days before
the incident, he was already instructed to handle hostage crisis in Lamitan,
hinting that his superiors knew what was going to happen beforehand. When
they reached Lamitan, most of them were not issued firearms. Upon reaching
the scene of the fight, they were left defenseless and three of his men were

Basilan: The Next Afghanistan?: The International Peace Mission Report, at 17. See also
Burnham, My Enemies, at 79–92.

killed . . . . What happened in Lamitan in June last year, based on collated
testimonies of witnesses who have no motive to lie and who are endangering
their own lives by speaking is credible: Ranking leaders of the military and the
local government facilitated the payment of ransom to the Abu Sayyaf in
exchange for the freedom of some of the hostages. A general received a brief-
case full of cash from the family of a hostage, gave it to the Abu Sayyaf, and
ordered his troops to let the kidnap group escape.20
Understandably, the Philippine Government was quick to criticize the fore-
going findings of the International Peace Mission. Former National Security
Adviser Roilo Golez, said the mission members were people of ‘doubtful
credentials’ and ‘imported military bashers’.21 Despite such stinging criti-
cism, the Administration was rebuffed by its own Senate. After conducting an
investigation on the Lamitan incident, the Philippines Senate gave credence
to the International Peace Mission report when it concluded that there was
‘strong circumstantial evidence to support the allegation of collusion’.22
Despite the Senate’s call on the President and the Ombudsman to prosecute
those behind the Lamitan collusion, none of them have been charged; the
highest-ranking general involved in the incident was even promoted.23

II. The Abu Sayyaf and the Burnhams
Literally, Abu Sayyaf means ‘bearer of the sword’.24 It is a splinter group of
the Moro National Liberation Front (MNLF), a group that seeks Muslim
autonomy in the Philippines. The MNLF has signed a peace agreement with
the government, but another secessionist group, the Moro Islamic Liberation
Front (MILF), continues its campaign for an independent Mindanao. The
story of the Abu Sayyaf mirrors the rise and fall from American favour of
other extremist groups such as the Taliban regime in Afghanistan. Abduragak
Abubakar Janjalani founded the Abu Sayaff. Janjalani is a Muslim who

Ibid. at 18.
Carlito Pablo, ‘Golez hits Foreign Intervention’, Philippine Daily Inquirer, 26 March 2002
Senate Committee Report No.72 dated 19 August 2002, p. 44
The Senate Committee on Defense, headed by Sen. Ramon Magsaysay, Jr. recommended that
‘the Department of Justice and/or Ombudsman, continue the investigation on the charge of
collusion between the Abu Sayyaf and high ranking military officials, including Maj. Gen.
Romeo Dominguez, former chief of the 1st Infantry Division; Gen. Jovenal Narcise, former
chief of the 103rd Infantry Brigade; and Maj. Eliseo Campued, executive officer of the 18th
Infantry Battalion’. The same finding was arrived at by investigators from the Army Inspector
Investigators Office. See ‘AFP chief blamed for Basilan fiasco’, Philippine Headline News
Online, 10 September 2001, http://www.newsflash.org/2001/09/hl/hl014277.htm. Gen.
Romeo Dominguez was later given a second star. See Philippine Headline News Online,
17 August 2002, http://www.newsflash.org/2002/08/hl/hl016296.htm.
Tolin, ‘The Response of the Philippines Government and the Role of AFP in Addressing
Terrorism’, National Defense College of the Philippines, p. 3 (unpublished manuscript).

trained in Afghanistan and fought against the Russians side by side with the
then American supported Talibans.25 Janjalani started as a staunch critic of
the MNLF’s decision to sign a peace treaty with the Manila government. To
diffuse his criticisms, he was sent to study in Libya where he instead con-
tinued his criticisms of the MNLF. Upon his return to Mindanao he recruited
from the ranks of dissatisfied members of the MNLF to form the Abu Sayaff
which, he claimed, would wage the true ‘jihad’.26
Ideologically, it is unclear where the Abu Sayyaf stands. In fact it is difficult
to classify the group for the purpose of applying international humanitarian
law. Although it has made pronouncements that it is for an independent
Islamic state of Mindanao, its very limited membership, its resort to prohib-
ited means and methods of warfare,27 and torture, would render it ineligible
to become a combatant group either for purposes of the Geneva Convention
or the latter’s optional protocols.28 At the same time, some believe that
normative considerations dictate that international humanitarian law should
be made applicable to the group in order to provide the legal basis for the
exercise of universal jurisdiction against its members. Foreign courts have in
fact exercised universal jurisdiction against members of the Abu Sayyaf for
breaches of Common Article Three of the Geneva Conventions.29
The Philippine government initially treated the group as nothing more
than common criminals. When the military repeatedly failed to rescue the
American couple, the government revised its policy and labelled the Abu
Sayyaf as part of an international network of terror groups to justify the
operation of US troops in Philippine territory. This deployment of foreign
troops to fight the Abu Sayyaf, partly owing to the Philippine military’s
collusion with the rogue group, has been the only effective means by which
the Philippines has dealt with the problem of terrorism, albeit one which was
beset with constitutional infirmities.
The Burnham abduction did get substantial media coverage in the main-
stream American press. And expectedly, after 9/11, a connection was soon
made between the ‘war against terror’ as the proper response to the bombing
of the World Trade Center in New York, and the need to wage the same war in
other parts of the world where American interests were imperilled. It was

Vitug and Gloria, Crescent Moon, at 213. 26 Ibid. at 205.
Such as taking of hostage for ransom, wilful killing (even beheading) of civilians. See the
prohibitions found in Common Article Three, Geneva Conventions. Additional protocol II
provides that IHL shall be applicable if, inter alia, the combatant engaged in an armed
conflict against a state is able to implement provisions of the protocol.
1977 Additional Protocol II Art. 1.1
See ‘COMM other Robot is before German court’, Der Spiegel, 16 December 2003, http://
babel.altavista.com/babelfish/urltrurl ?lpÂĽde_en& urlÂĽhttp%3a%2f%2fwww.spiegel.
de%2fpanorama% 2f0,1518,278589,00.html.

expected that the second leg of the so-called war against terror was going to be
brought onto the shores of the Philippines.30
There was, however, a legal obstacle. The Philippines’ new Constitution,
crafted and ratified after the ouster of the Marcos dictatorship,31 specifically
banned the presence of foreign troops in Philippine territory, unless it is
covered by a treaty duly concurred in by the Senate of the Philippines.32 There
was thus a need to find a legal basis for American involvement and the
solution was found in the Mutual Defense Treaty and the Visiting Forces
Agreement between the US and the Philippines. The Mutual Defense Treaty
of 195133 between the Philippines and the United States, crafted at the height
of the Cold War, provides that either party may seek the other party’s help in
the case of an ‘external armed attack.’ Article III of the Treaty provides:
The Parties, through their Foreign Ministers or their deputies, will consult
together from time to time regarding the implementation of this Treaty
and whenever in the opinion of either of them the territorial integrity,
political independence or security of either of the Parties is threatened by
an external ‘armed attack’ in the Pacific . . . [t]hey shall declare publicly
their sense of unity and their common determination to defend themselves
against external armed attack, so that no potential aggressor could be under
the illusion that either of them stands alone in the Pacific area.
The Visiting Forces Agreement (VFA),34 on the other hand, defines the status
of Visiting American Forces in the country whenever they are on Philippines
territory in connection with the conduct of joint military exercises.
President Arroyo invoked the Mutual Defense Treaty and the VFA to
authorize a joint military exercise which became known as ‘Balikatan 02-1’.
Unlike other military exercises, this Balikatan was unique because it involved
an alleged war exercise in an actual battlefield: the jungles of Basilan and
Zamboanga, where the Americans were held by the Abu Sayyaf. In order to
circumvent the constitutional ban on the presence of American troops which
was obviously intended as a rescue mission, the Terms of Reference (TOR) of
the military exercise described it as: ‘a mutual counter terrorism advising,

‘US Senator says RP Next Afghanistan’, Philippine Daily Inquirer, 18 January 2000.
Historians credit the survival of the Marcos regime to US support. In turn, this support
was given because of the American desire to continue its military presence in the
Philippines. The US then maintained its biggest military facilities outside of mainland
United States in the Philippines, most noteworthy of which were Clark Airbase in
Pampanga and Subic Naval base in Zambales. See Renato Constantino and and Letizia
R. Constantino, The Philippines: A Continuing Past (Quezon City, Foundation for
Nationalist Studies, 1978).
Art. XVIII, Section 25, 1987 Constitution.
See Mutual Defence Treaty, http://www.chanrobles.com/mutualdefensetreaty.htm
See the Visiting Forces Agreement, http://www.dfa.gov.ph/vfa/frame/frmvfa.htm.

assenting and training exercise relative to Philippine efforts against the Abu
Sayyaf Group’.35 The TOR also provided that ‘US exercise participants shall
not engage in combat, without prejudice to their right of self defense’.36
Consequently, the United States sent a total of 660 military personnel to
the Philippines, a first since the United States closed its military bases in the
country in 1991. Of these numbers, 167 special operatives were sent to the
jungles of Basilan ostensibly to rescue the Burnham spouses.37
On 1 February 2002, two members of the Philippine Bar, Arthur D. Lim
and Paulino P. Ersando filed a petition for certiorari and prohibition, attack-
ing the constitutionality of the joint exercise, arguing that the exercises
contravened the spirit and intent of the VFA. They were joined subsequently
by Sanlakas and Partido Ng Manggagawa, both party-list organizations,
which filed a petition-in-intervention on 11 February 2002.
The Supreme Court disposed of the issue of whether ‘Balikatan 02-1’ is
covered by the VFA by citing Section 3 of the Vienna Convention on the Law
of Treaties, which contained provisions on the interpretation of international
agreements.38 The Supreme Court noted that the VFA permitted United States
personnel to engage, on an impermanent basis, in activities in the Philippines
during war exercises, the exact meaning of which was left undefined. The High
Court said the expression was ambiguous, permitting a wide scope of under-
takings subject only to the approval of the Philippine government. But the
Supreme Court said that, based on the Vienna Convention, the cardinal rule of
interpretation must involve an examination of the text, which is presumed to
verbalize the parties’ intentions. Hence, a careful reading of the TOR would arrive
at the conclusion that it rightly fell within the context of the VFA. It declared:
After studied reflection, it appeared farfetched that the ambiguity surrounding
the meaning of the word ‘activities’ arose from accident. In our view, it was
deliberately made that way to give both parties a certain leeway in
negotiation . . . In this manner, visiting US forces may sojourn in Philippine
territory for purposes other than military. As conceived, the joint exercises
may include training on new techniques of patrol and surveillance to protect
the nation’s marine resources, sea search-and-rescue operations to assist
vessels in distress, disaster relief operations, civic action projects such as the
building of school houses, medical and humanitarian missions, and the like.39

Cited in the dissenting opinion of Mr Justice Kapunan, in Arthur D. Lim and Paulino R.
Ersando v. Honorable Executive Secretary as alter ego of Her Excellency Gloria Macapagal-
Arroyo, and Honorable Angelo Reyes in his capacity as Secretary of National Defense (G.R.
No. 151445. 11 April 2002), p. 2
See ‘Row grows over U.S. troops in the Philippines’, 24 January 2002, CNN.com, http://
See Section 3 – Interpretation Of Treaties, Articles 31 and 32.
Above note 35, majority opinion at 6.

It further held:
Under these auspices, the VFA gives legitimacy to the current Balikatan
exercises. It is only logical to assume that Balikatan 02-1, a mutual anti-
terrorism advising, assisting and training exercise, falls under the umbrella
of sanctioned or allowable activities in the context of the agreement. Both
the history and intent of the Mutual Defense Treaty and the VFA support
the conclusion that combat-related activities – as opposed to combat itself –
such as the one subject of the instant petition, are indeed authorized.40
But on the second issue of the constitutionality of allowing US troops on
Philippine soil under the new arrangement, the Supreme Court demurred.
First, it asked itself, granting that ‘Balikatan 02-1’ is permitted under the
terms of the VFA, what may US forces legitimately do in furtherance of their
aim to provide advice, assistance and training in the global effort against
terrorism? The Court said:
Differently phrased, may American troops actually engage in combat in
Philippine territory? In our considered opinion, neither the MDT nor the
VFA allow foreign troops to engage in an offensive war on Philippine
The Supreme Court then said the Mutual Defense Treaty and the Visiting
Forces Agreement, as with all other treaties and international agreements to
which the Philippines is a party, must be read in the context of the 1987
Constitution. In particular, the Mutual Defense Treaty was concluded way
before the present Charter, though it nevertheless remained in effect as a valid
source of international obligation. It noted that the present Constitution
contained key provisions useful in determining the extent to which foreign
military troops are allowed in Philippine territory, in particular in the
Declaration of Principles and State Policies,42 and its provisions regulating
the foreign relations powers of the Chief Executive when it provided that
‘[n]o treaty or international agreement shall be valid and effective unless
concurred in by at least two-thirds of all the members of the Senate’.43 Even
more pointedly, the Supreme Court noted that the Transitory Provisions of
the 1987 Charter also stated:

Ibid. 41 Ibid.
Citing the following provisions in the 1987 Charter: Sec. 2. – The Philippines renounces
war as an instrument of national policy, adopts the generally accepted principles of
international law as part of the law of the land and adheres to the policy of peace, equality,
justice, freedom, cooperation, and amity with all nations. Sec. 7. – The State shall pursue
an independent foreign policy. In its relations with other states the paramount considera-
tion shall be national sovereignty, territorial integrity, national interest, and the right to
self-determination. Sec. 8. – The Philippines, consistent with the national interest, adopts
and pursues a policy of freedom from nuclear weapons in the country.
Sec. 21, Art. VII.

Sec. 25. – After the expiration in 1991 of the Agreement between the
Republic of the Philippines and the United States of America concerning
Military Bases, foreign military bases, troops or facilities shall not be
allowed in the Philippines except under a treaty duly concurred in by the
Senate and, when the Congress so requires, ratified by a majority of the
votes cast by the people in a national referendum held for that purpose, and
recognized as a treaty by the other contracting state.44
The Philippine Constitution, said the Supreme Court:
betrays a marked antipathy towards foreign military presence in the coun-
try, or of foreign influence in general. Hence, foreign troops are allowed
entry into the Philippines only by way of direct exception. Conflict arises
then between the fundamental law and our obligations arising from inter-
national agreements.45
It then discussed the relation of international law vis-a-vis municipal law in
Philippine jurisprudence – that is, whether the High Court may invalidate a
treaty on the ground of unconstitutionality – by citing the case of Philip
Morris, Inc. v. Court of Appeals, where the court held that:
Withal, the fact that international law has been made part of the law of the
land does not by any means imply the primacy of international law over
national law in the municipal sphere. Under the doctrine of incorporation
as applied in most countries, rules of international law are given a standing
equal, not superior, to national legislation.46

It also cited the case Ichong v. Hernandez,47 where the High Court ruled that
the provisions of a treaty are always subject to qualification or amendment by
a subsequent law, or to the police power of the state, and the case of Gonzales
v. Hechanova,48 where it made the declaration that:
As regards the question whether an international agreement may be inva-
lidated by our courts, suffice it to say that the Constitution of the
Philippines has clearly settled it in the affirmative, by providing, in
Section 2 of Article VIII thereof, that the Supreme Court may not be
deprived ‘of its jurisdiction to review, revise, reverse, modify, or affirm
on appeal, certiorari, or writ of error as the law or the rules of court may
provide, final judgments and decrees of inferior courts in – (1) All cases in
which the constitutionality or validity of any treaty, law, ordinance, or
executive order or regulation is in question.’ In other words, our
Constitution authorizes the nullification of a treaty, not only when it
conflicts with the fundamental law, but, also, when it runs counter to an
act of Congress.49

CONST. (1987) Art. XVIII. 45 Above note 35 at 8.
224 SCRA 577 (1993). 47 G.R. No. L-7995, 101 PHIL 1155 (1957).
G.R. No. L-21897, 9 SCRA 230 (1963). 49 Ibid.

The Supreme Court thus unequivocally declared that the Constitution pro-
hibits the deployment of foreign combatants in the Philippine territory.
However, it refused to declare the Balikatan as unconstitutional on the
ground that a determination of whether or not the American troops were
in Mindanao exclusively for war exercises or for the purpose of rescuing the
Burnhams involved a decision on an issue of fact which it ‘understandably
loathed to do’.50
Gracia Burnham was later rescued but her husband died during the
operation.51 American operatives later allegedly killed Commander Abu
Sabaya, a central figure in the Palawan hostage taking.52 It was never men-
tioned in reports that the killing was done in ‘self defence’.
Quite apart from its notoriety, what is even more disturbing is the persis-
tent belief that the Abu Sayyaf was a creation of no less than the armed forces
of the Philippines. MILF leaders insist that the Abu Sayyaf is the creation of
the armed forces of the Philippines and/or the US Central Intelligence
Agency in order to discredit the Muslim secessionist movement and to stop
the peace talks between the government and the MILF. MILF leaders are
always quick to point out that one of the group’s founders, Edward Angeles,
was a police agent.53 This point was given credence by two of the Philippines’
top investigative journalists:
Exactly how the Abu Sayyaf was formed is a question for which neither the
military nor Janjalani has a solid answer. The group remains as nebulous as
its beginnings, and as shadowy as its charismatic founder. There is abso-
lutely no doubt that it has been infiltrated by the military. What is uncer-
tain is whether or not Janjalani, who was admired by many in the Muslim
community, formed the Abu Sayyaf precisely to work for the military or if
he had simply lost control over his own men.54

III. Lessons from Lamitan and the Burnhams
There are lessons to be learned from the Lamitan incident and the US military
operations that led to the rescue of Gracia Burnham. First, some Philippine
officials at the time of the kidnapping actively became part of the problem
and even prolonged it to suit their own agenda. Secondly, the government
was not able to deal with this kind of terrorism and was quick to run to its

Above note 35 at 10. 51 Burnham, My Enemies, at 251–66.
See ‘Search for Abu Sayyaf leader’s body’, 22 June 2002, Cnn.com, http://www.cnn.com/
Eric Gutierrez, ‘New Faces of Violence in Muslim Mindanao’, in Kristina Gaerlan and
Mara Stankovitch (eds.), Rebels, Warlords, and Ulama: Reader on Muslim Separatism
and the War in Southern Philippines (Quezon City, Institute for Popular Domocracy,
2000), at 234.
Vitug and Gloria, Crescent Moon, at 210–11.

former colonizer and continuing ally, the United States, for assistance. The
government may have been able to justify American military intervention in
the Burnham incident, but there must be doubt as to what it could have done
if American nationals had not been involved. The Mutual Defense Treaty and
the Visiting Forces Agreement cannot be a satisfactory substitute for a
genuine and comprehensive policy against terror groups.
It is also disturbing how Philippine policy-makers were quick to tap
opportunities offered by the United States’ global ‘War Against Terror’ to
address its festering and decades-old problems with local communist groups,
while ignoring threats from Muslim extremist groups. The Philippine
government lobbied for the inclusion of the Communist Party of the
Philippines (CPP) and its military arm, the New Peoples Army (NPA) as
‘terror groups’ within the meaning of the US Patriot Act.55 The European
Union followed suit.56 As a result, the founder and head of the CPP-National
Democratic Front (CPP-NDF), the political arm of the CPP, Jose Maria
Sison, may soon be deported back into the Philippines from his exile in the
Netherlands. Prior to his classification as a terrorist, the CPP-NPA founder
was an asylum seeker in Utrecht under the 1951 Convention on Refugees.
The government has refused to seek this option against the Moro Islamic
Liberation Front despite evidence linking the group with both the Jemaah
Islamiah (JI) and the Al Qaeda network. The link is far from tenuous. In her
book ‘Seeds of Terror’, CNN correspondent Maria Ressa cited intelligence
reports and wrote that JI and al Qaeda have been training combatants in
MILF military camps.57 According to Ressa, the Philippine government has
deliberately turned a blind eye to this evidence.58 The involvement, in terms
of al Qaeda in the Philippines, goes beyond maintaining training camps in
MILF lairs. In 1995, Philippine policemen uncovered an al Qaeda cell
intending to assassinate the Pope who was going to visit. Abdul Hakkim
Murad, a Pakistani, was arrested. During his interrogation, Murad admitted
to his participation in the 1993 bombing of the World Trade Center. His
confession led to the arrest in Pakistan of the alleged mastermind, Ramzi
Ahmed Yousef. Murad and Yousef have been tried and found of guilty of
perpetrating the 1991 World Trade Center bombing. They are serving life
sentences in New York.59
Familial ties link al Qaeda and the Abu Sayyaf. Muhammad Jamal Khalifa,
a brother-in-law of Osama bin Laden, provided financial support to Abu
Sayyaf’s founder, Abdukurak Janjalani, to go on a pilgrimage to Mecca and
on trips to Syria, Afghanistan, and Pakistan. It was in one of the trips financed

See ‘Powell declares CPP-NPA ‘‘foreign terrorists’’’, 10 August 2002, Minda News, http://
See http://www.dfa.gov.ph/news/pr/pr2002/oct/pr240.htm.
Ressa, Seeds Of Terror, at 7–8. 58 Ibid. at 15. 59 Ibid. at 32–40.

by Khalifa to Afghanistan that Janjalani met Abdul Rasul Sayyaf, the
Muhajadeen leader of the resistance against Russians in Afghanistan.
Janjalani named his group after this person.60 Intelligence reports also indi-
cated that it was Osama Bin Laden who introduced Janjalani to Ramzi
Yousef.61 No less than twenty members of the Abu Sayyaf allegedly graduated
from al Qaeda training camps.62
Despite President Gloria Macapagal-Arroyo’s continuing dismissal of evi-
dence available as early as 2001,63 the recent arrest of an Egyptian national
who confessed to have trained al Qaeda operatives within MILF camps in
Mindanao now confirms the link between al Qaeda and a ‘faction’ of the
MILF.64 Despite this validation, the Philippines still has not asked the United
States and Europe to classify the MILF as a terrorist group. The avowed
reason why President Arroyo has not asked for the inclusion of the MILF in
the American list of terror groups is her stubborn insistence that the MILF is
a purely domestic issue. According to her, by dealing with the MILF militarily
and politically, despite its links with al Qaeda, ‘we can get them to under-
stand that they must break all links – if any – with terrorist groups, and
that there is more life for their people, who are of course, our people, if they
go on the road of peace talks’.65 Ressa though believes there are more
convincing reasons:
In one Southeast Asian country after another, I witnessed a level of denial
from political leaders who did not even admit that there was a threat. There
were several reasons: acknowledging the threat required action; sometimes,
leaders were afraid of its impact on terrorism; other times, officials had
different priorities and terrorism didn’t seem like an unmanageable

The lack of a genuine policy against terrorism explains why the Philippines
does not have any special laws against terrorism.67 The Philippines adopts the
American form of government where powers are vested in three co-equal
branches: the executive, the legislative, and the courts. This system allows the
President to ask Congress to act with dispatch on bills duly certified by it as
urgent. The President usually officially conveys her legislative agenda to

Ibid. at 100. 61 Ibid. at 101. 62 Ibid. at 109. 63 Ibid. at 15
See ‘Arrested Al-Qaeda suspect links terror group to MILF’, 3 June 2004, AFP, http://
Ressa, Seeds Of Terror, at 16. 66 Ibid.
The failure to legislate an anti-terror law was described as ‘a weak link in anti-terror law
enforcement efforts’, see Ma. Cristina E. Cruz, et al., ‘The Need For A Responsive
Terrorism Prevention Legislation’, p. 2 A, Confidential National Security Advisory
Paper, Office of the President, Policy and Strategy Office, National Security Council, a
copy of which is deposited with the Institute of International Legal Studies (IILS), UP Law

Congress in the annual State of the Nation Address held to open each session
of Congress. President Arroyo has never asked Congress to prioritize any
measure specifically against terrorism.68 This omission indicates that as a
matter of policy, the Arroyo government has not characterized the passage of
a special law against terrorism as being urgent.
Nonetheless, there are pending bills in both Houses of the Philippine
Congress addressing modern day terrorism.69 The daughter of the late dic-
tator Ferdinand Marcos, authored one of the bills.70 This is ironic because
Marcos’ twenty-year reign in the Philippines was a classic example of state-
sanctioned terrorism.71 The legislative measures are not identical but they
differ on minor points. Substantially, all of them seek to define terrorism by
borrowing the definition of the American Patriot Act.72 The bills also provide
penalties for particular types and forms of terrorism. These bills also seek to
amend the country’s rules of criminal procedure to expand the scope of
police power, often to the detriment of universally recognized human rights.
A starting point in an analysis of these pending legislative initiatives is an
attempt to define terrorism. And just as the international community has
failed to arrive at a universally accepted definition of terrorism,73 this
attempt to legislate a domestic definition of terrorism is likely to derail and
prevent the passage of an anti-terrorism law. The Philippines has been deal-
ing with two armed conflicts, both of which may be argued to be in exercise of
the right to self-determination. The MILF seeks the secession of Muslim
Mindanao from the Republic and the establishment of an independent

For the President’s State of the Nation remarks on terrorism, see http://www.gov.ph/
Senate Bill No. 2540 filed in substitution of Senate Bill Numbers 1458, 1980, 2263 and
2296 prepared by the Senate Committee on Public Order.
House Bill 2057 authored by Rep. Imee R. Marcos.
When President Ferdinand Marcos declared Martial Law in 1972 in the Philippines, he
unleashed the full might of the state to combat what he claimed to be ‘lawless elements’
and employed ‘state terrorism’ to curtail the democratic rights and liberties of the Filipino
people. See Sarmiento, ‘Terrorism, the Terrors of Anti-Terrorism Bill and Human Rights’
in Final Report, Conference on the Proposed Anti-Terrorism and Anti-Terrorist
Financing Bill, Institute of Government and Law Reform, University of the Philippines
Law Center, October 2002, at 35.
H. R. 3162 ‘Uniting and Strengthening America Act by Providing Appropriate Tools
Required to Intercept and Obstruct Terrorism (USA PATRIOT) Act of 2001’.
See Roque, ‘The Changing face of Terrorism: A New Crime Against Humanity?’ (Jan-
June, 2002), World Bulletin, vol. 18, nos. 1–3, at 30–46; Higgins, ‘The General
International Law of Terrorism’ in Rosalyn Higgins and Maurice Flory (eds.), Terrorism
and International Law (London, Routledge, 1997), at 1329; Proust, ‘Nonprotected Persons
or Things’, in Alona E. Evans and John F. Murphy (eds.), Legal Aspects of Terrorism
(Lexington Books, 1978), at 341, 367; M. Cherif Bassiouni, ‘A Policy Oriented Inquiry of
International Terrorism’ in Bassiouni (ed.), Legal Responses To International Terrorism
(Dordrecht, Nijhoff, 1988), at xviii.

Islamic state;74 the CPP-NDF seeks the overthrow of the Philippine constitu-
tional institutions in favour of a Maoist state.75 From the standpoint of both
international human rights and humanitarian law, it does not matter if the
purposes of the groups are legitimate, or appropriate to the Philippines.
International law recognizes the right to self-determination as being not
only a fundamental human right, but as a right ergo omnes and recognizes
no derogations therefrom.76
International humanitarian law (IHL), furthermore, does not inquire into
the legitimacy of the use of force. Instead, it classifies armed conflicts into
international and non-international armed conflicts and provides for non-
derogable norms applicable to combatants.77 There is now substantial
authority that under both international and Philippines domestic laws,
these norms of IHL are recognized as being jus cogens.78 The Geneva
Convention defines an international armed conflict as, among other things,
one fought between a state and an armed group in the exercise of the right to
self-determination.79 International human rights law in turn defines the right
to self-determination to be the right of a people to choose its form of
government, including whether or not such a government shall be indepen-
dent from any other state, or whether it should be appended to an existing
state.80 Under international law, both the MILF and the NPA are entitled to
the status of national liberation movements in the exercise of self-determina-
tion. The first flaw of the bills before the Philippines Congress is thus in its
definition of terrorism as the ‘use or threatened use of serious violence,
principally directed against civilians or noncombatants, or against properties
with the intention of instilling a common danger, panic, or fear, or of
coercing or intimidating the public or the government’.81 The foregoing
definition does not make any exception, even for those acts which are in
the exercise of the ergo omnes right of self-determination. This would penalize
as offences acts of the MILF and the NPA in pursuance of their armed
struggle, in contravention of both international humanitarian and human
rights law.

Ressa, Seeds Of Terror, at 367–71.
See http://www.au.af.mil/au/aul/bibs/tergps/tgnew.htm.
Portugal v. Australia, ICJ Report 1995, p. 102.
See Article 2 and Common Article Three, Geneva Conventions One of 1949. See also Art.
1(4) Optional Protocol 1, 1977.
Barcelona Traction Case, ICJ Report 1970, p. 3; Kuroda v. Jalandoni, 83 Phil 171 (1948);
Yamashita v. Styler G.R. No. L-129, 19 December 1945.
1977 Additional Protocol 1, Art. 1 (4).
Article 1, International Covenant on Civil and Political Rights. See also Rosalyn Higgins,
International Law, Problems and Process: International Law and How We Use It (Oxford,
Clarendon Press, 1999), 125.
Sec. 3, SB No. 2540.

Furthermore, the proposed bill, in so far as it purports to amend the
existing rules of criminal procedure relating to search and seizure, appears
to violate constitutional norms protecting the people from arbitrary search
and seizures. Under the Constitution and existing rules, no search may be
made unless pursuant to a judicial warrant.82 The intent of such a seemingly
tedious procedure is to safeguard the people’s right to be secure against
unreasonable searches on the part of agents of the state.83 The proposed bill


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