Yusril Ihza Mahendra, legal counsel to Indonesia’s President Joko “Jokowi” Widodo, dropped a bombshell last week when he announced that Abu Bakar Bashir, an ulema considered to be the mastermind of the 2002 Bali bombing, would be released from prison “unconditionally” in the near future.

Mr Mahendra cited “humanitarian reasons” for the president’s decision, which took into account Bashir’s “advanced age” of 81, adding that Mr Widodo “can’t abide to see an ulema in prison for long.”

The decision has raised eyebrows among security experts and Australia, which has the most number of victims in the Bali bombing, has also expressed unease.

On Monday, Coordinating Minister for Political, Legal and Security Affairs Wiranto said the President has asked him to review all aspects of the planned release.

Mr Widodo’s original decision is seen by many as another concession to political Islam ahead of the April elections. What are the implications?

First, releasing Bashir is highly controversial due to his reputation as one of Indonesia’s high-profile radical Islamist ideologues and a repeat offender of terrorism.

He is currently serving a 15-year prison sentence passed by a court in 2011 for his involvement in funding, overseeing and arming a training camp for jihadists in Aceh.

Previously, in 2005, he was also sentenced to jail after being implicated in the 2002 Bali Bomb attack in his capacity as the spiritual leader of Jemaah Islamiyah, the group responsible for killing 202 people of diverse nationalities in the terror attack.  

He appealed the decision and the Supreme Court found him not guilty in 2006. Before that in 2003, he was charged with conspiracy in the 2000 terror attacks against churches across the country but was not convicted.

In his statement to the press, Mr Mahendra had suggested that Bashir will now be discharged under parole provisions instead of a presidential pardon (grasi).

According to a 2018 law, an early release for a convicted terrorist can only be possible when certain conditions are met, namely, the convict:

1. Has shown a high degree of cooperation with the authorities to divulge and expose his or her crime and network,

2. Has served at least two-thirds of his or her sentence,

3. Is willing to take part in a post-release re-assimilation programme lasting half of the remaining sentence,

4. Has shown remorse for his or her crime and is willing to pledge absolute loyalty to the Republic of Indonesia.

While Bashir has indeed served two-thirds of his sentence, it is evident that the other requirements will not be met.

Mr Widodo’s initial willingness to waive these requirements was almost unheard of.

Abdul Ficar Hadjar from the Faculty of Law at the Jakarta-based Trisakti University told Tempo that a release under such provisions will be an unprecedented legal event.

“The President must issue a special directive or a ministerial regulation to provide it with a legal basis. Otherwise he may be in danger of violating the Constitution.”

As backlash against his plan to unconditionally release Bashir grew, Mr Widodo made a turnabout on Tuesday and said a loyalty pledge to the state ideology of Pancasila (Five Principles) by Bashir would now be required for his release.

Second, it is hard to ignore the fact that Mr Widodo is bending over backwards to ensure Bashir’s release before the elections.

It is difficult to see the unconditionality of Bashir’s release as a mere act of compassion after Mr Widodo’s previous turnabout to embrace political Islam by appointing an ultra-conservative cleric, Ma’ruf Amin, as his vice-presidential candidate.

Mr Amin has also not shied from claiming that he had pitched the idea of releasing Bashir. “I made the suggestion to the president back in 2018 but I didn’t specify the legal technicalities. I understand the president was prepared to issue a pardon (grasi) but (Bashir’s) family refused.’

The reason for the family’s refusal was because in accepting the pardon, Bashir would be admitting his guilt. It was therefore implicit that Bashir had wanted another form of pardon — rehabilitasi (rehabilitation), also a presidential prerogative under the Constitution — which would exonerate him from all criminal charges he was found guilty of.

It was understandable why Mr Widodo was reluctant to grant Bashir rehabilitasi. It would translate to an admission that the state wrongfully charged and convicted Bashir.

The issue became a stalemate until November last year when Mr Mahendra became Mr Widodo’s legal counsel for the presidential campaign. Mr Mahendra has clearly played a pivotal role in bringing about Bashir’s release under the new terms.

Mr Mahendra’s currently enhanced standing with the president is also noteworthy. His appointment may have brought the president the political support of a minor Islamic political party, the Star and Crescent Party (PBB) ─ of which Mr Mahendra is chairman.

But it was also ironic since Mr Mahendra had also been legal counsel to Hizbut Tahrir Indonesia, an Islamist organisation Jokowi banned in 2017.

Given that Islamist groups have accused Mr Widodo of criminalising ulemas, it is difficult not to see Bashir’s release as a counter-proof against it, especially after the recent arrest of a high-profile radical preacher Bahar Bin Smith for assault against two teenagers.

Yet, regardless of the political calculations behind it, the move represents a significant blow to the country’s existing political consensus of ‘secular nationalism’ as enshrined in Pancasila.

Although often patchy in its implementation, secular nationalism has been the glue that holds Indonesia together since its founding.

Third, the president’s willingness to bend the law to release Bashir stands in stark contrast with his reluctance to intervene in unfair legal proceedings against members of minority groups.

This includes a Buddhist Chinese Indonesian woman from Tanjung Balai, Meiliana, who was prosecuted for blasphemy against Islam for voicing protest over a mosque’s loudspeakers.   

To add insult to injury, none of Indonesia’s major political parties have objected to the president’s extraordinary waiver of the provisions for early release.  

At best, Mr Widodo’s latest gambit is an attempt to pacify Islamic sensibilities ahead of both the presidential and legislative elections, at the cost of wreaking havoc with Indonesia’s legal system and offending minority groups.

He has also set an undemocratic precedent that Muslim clerics are extraordinary citizens with special privileges.

At worst, he has proved how bankrupt “secular nationalism” is in Indonesia and abetted its demise.

ABOUT THE AUTHOR:

Johannes Nugroho is a writer and political analyst from Surabaya whose commentaries have appeared in the Jakarta Post and Jakarta Globe since the 1990s. He is currently working on his first novel set around the May 1998 riots in Indonesia.