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Australian Journal of Asian Law

Abstract from Volume 5 No 2 (2003)

Retrospectivity and the Constitutional Validity of the Bali Bombing and East Timor Trials

Ross Clarke BA, LLB (Melb) is a member of the Asian Law Centre, University of Melbourne, and is with Freehills, Melbourne.

This article discusses two instances of retrospective prosecution currently under way in Indonesia: the trials of those accused of perpetrating the Bali bombing and the trials of Indonesia's ad hoc Human Rights Court for East Timor. Both sets of trials have been clouded in uncertainty due to a recent constitutional amendment which prohibits retrospective prosecution. The prosecution of crimes against humanity is a widely acknowledged exception to the principle of non-retrospectivity. Despite this, uncertainty over the validity of the Bali and East Timor trials has not been authoritatively resolved. The issue of retrospectivity will be central to any appeals; and of critical import to the outcome of such cases is the proposed Con-st-itutional Court and the emergence of judicial review in Indonesia. A ruling on the constitutional validity of retrospective prosecution could potentially exonerate those responsible for grave human rights violations in Bali and East Timor. Whatever the outcome, these cases will likely prove defining moments for the Indonesian judiciary.

(2003) 5(2) Asian Law 128

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