Sense of betrayal at Bashir ruling understandable

Investigators of organised crimes against society such as terrorism or drug trafficking are never really happy unless they can catch the Mr Bigs who pull the strings behind the scenes and lock them away. All too often, operations that catch and punish the foot soldiers and small fry who do the bidding of the Mr Bigs leave investigators feeling cheated, as if the big catch has slipped through their fingers.

That was true up to a point of the investigation of the 2002 Bali nightclub bombings that took the lives of 202 people, mostly foreign tourists, including 11 from Hong Kong. There remains no doubt in the minds of Indonesian and Australian police of the key involvement of militant Islamist cleric Abu Bakar Bashir, spiritual leader of the al-Qaeda-linked Jemaah Islamiah, in training the bombers, or that he approved the attack. Yet he escaped the most serious charges and served just 21/2 years in jail for conspiracy in the atrocity.

It is therefore easy to understand the feelings of betrayal, disgust and distress among families of the victims triggered by news that a judicial review by the Indonesian Supreme Court has overturned 69-year-old Bashir's conviction.

No one ought to be totally surprised. Bashir's defence all along was pitched at a raw nerve in Indonesia over its humiliating ejection from the annexed former Portuguese colony of East Timor. There is lingering resentment of the role of the west in securing East Timor's independence. The cleric and his lawyers played on it by blaming foreign pressure, particularly from Australia, for his arrest soon after the Bali bombings. Add to that the fact that the evidence against him was very much circumstantial, witnesses came under alleged pressure to retract testimony or not appear, and the United States refused to produce terror suspects held in secret detention who could have linked him more strongly with the leadership of Jemaah Islamiah.

There is also said to be political reluctance to take a hard line against Islamist militants for fear of reprisals that could lead to domestic instability with electoral and economic repercussions. It was no surprise that Bashir exhausted his rights under the legal system. He was quick to crow about his acquittal as a blow to the west and a warning that western attempts to subjugate Indonesia would fail. Since his early release in June, he has preached against Americans and Jews and promoted his campaign to transform Indonesia's secular state into an Islamic one.

Under Indonesian law, the earlier Supreme Court appeal verdict against Bashir was final, but defendants can file for a judicial review if they can cite new evidence. The announcement that Bashir had been cleared said only that the decision was based on new evidence from 30 witnesses. A written verdict is to follow.

The decision may raise disturbing questions in many minds, but there is no question that Indonesia is entitled to expect others to respect its legal system, just as we expect others to respect Hong Kong's system. Australian Prime Minister John Howard was sensible to temper his expression of personal upset by pointing out that 'it is the court system of another country and we cannot change that'.

The fact is that one of the greatest obstacles to be overcome in the fight against terrorism is that it can be difficult to produce evidence that will satisfy the standard of proof beyond reasonable doubt in a civilian court. That is why the US, regrettably, has abandoned the high moral ground by abusing the human rights of terror detainees, holding them incommunicado for gruelling interrogation, without trial or representation or any prospect of release. That is not the right answer to people who challenge a democratic way of life.

The Bashir ruling is a reminder of the adage that prevention is the best cure. It should inspire anti-terror police and intelligence forces everywhere to redouble their vigilance and co-operation in an effort to give early warning of likely attacks and maximise the prospect of successful prosecutions.