The Bar Council today protested against the government's decision to allow four Internal Security Act (ISA) detainees to testify via video-link against Indonesian cleric Abu Bakar Bashir at his treason trial in Jakarta.

The council said it "views with concern" any testimony gathered from the four Indonesians as they are held under an "unconstitutional and oppressive" security law.

"Persons held under the ISA without trial are persons wrongfully detained, and are at the mercy and control of their captors," said chairperson Kuthubul Zaman Bukhari in a statement.

"Hence, confessions and adverse testimonies by detainees under such conditions must be viewed with extreme caution since they can be easily tainted by the possibility of duress, coercion or inducement when relevant safeguards are absent under conditions without trial."

He said testimonies obtained in such a manner cannot be accepted at face value without independent verification or corroboration procured under conditions of free will.

He added that this is more the case if the right to cross-examination is denied to defence lawyers, as it is in the Abu Bakar case.

Stark contradiction

The Indonesian cleric, who once lived in exile in Malaysia, has been charged with treason based on allegations that he heads the Jemaah Islamiah (JI), a regional militant group which had aimed to overthrow the Indonesian government for a pan-regional Islamic state.

The group is accused of involvement in sectarian conflicts and organised terrorist attacks in Indonesia and the Philippines. It is also said to have masterminded the Bali bombing and planned attacks against Western targets in the region.

Last Thursday, two of the ISA detainees testified from an undisclosed location to the Jakarta court through a video conference link. The remaining two had been scheduled to testify today.

Kutubul drew attention to two legal cases reported in Singapore where former ISA detainees had complained that the "confessions" they made while under detention had been coerced.

The cases are Chng Suan Tze v Minister of Home Affairs [1989] and Teo Soh Lung v Minister of Home Affairs [1990].

"Complaints of duress were made by the ISA detainees that they had been coerced into making confessions by way of televised interviews while in detention. It is neither safe nor fair for any court to rely on such testimonies," he said.

Kutubul said the government should release the four detainees immediately and unconditionally, so that they are able to give testimonies under normal conditions of free will.

The Bar also questioned the propriety of the government's decision to allow the detainees to testify at another person's trial, while denying them the right to defend themselves.

"It is a stark contradiction that the authorities would consider it appropriate for the detainees to give evidence in the trial of another, but at the same time deprive these same persons the right to their own trial and hence the right to give evidence in their own defence," he said.

'Flawed' trial

Meanwhile, United Nations special rapporteur on the Independence of Judges and Lawyers Param Cumaraswamy said the issue of admission of video testimony in Indonesian courts was first mooted during the East Timor trials.

"There are pros and cons to this method but what is clear is that there must be unimpeded leeway for cross-examination and re-examination by the accused's lawyers," he said when contacted.

Param, who is a former Bar Council chairperson, said the trial would be considered flawed if Abu Bakar's lawyers are denied an opportunity to question the witnesses.

In addition, Param said the ISA detainees testifying in the case should be given full access to lawyers to advise them on their actions.

"If the detainees are held under the two-year ISA detention order, they should be accorded legal counsel," he said.

"UN (guidelines) make clear that (the detainees) should be accorded counsel from a lawyer with experience and competence, particularly in criminal matters. A denial of counsel is a denial of justice to them," he added.

Human rights lawyers have warned that the testimonies by the four detainees may later affect the habeas corpus applications by their family members to seek their release.

Indonesian prosecutors are believed to have requested the testimonies of suspected militants detained in Malaysia and Singapore after previous witnesses failed to definitely link Abu Bakar to specific terrorist acts.

With the latest development, three JI detainees testifying by video from Singapore two weeks ago named Abu Bakar as the movement's chief and said he had approved several bombing plans in Indonesia.

Lawyers boycott

Last Thursday, the first ISA detainee testifying from Kuala Lumpur, Ahmad Sajuli Abdul Rahman, 40, also gave similar testimony in identifying the cleric as the head of JI.

Sajuli told the court of links between JI and Muslim groups in southern Philippines and Thailand and said that JI members were sent for weapons training in the Philippines and Afghanistan.

The second witness, Agung Diyadi, 47, however, said he had no knowledge of Abu Bakar's alleged plans to overthrow the Indonesian government. He said he only reported to Hambali, a fugitive JI leader.

Abu Bakar's lawyers have boycotted the trial proceedings on grounds that such testimonies from custodial witnesses should not be allowed as they are "clearly given under duress".

The two other witnesses lined up for testimony are Ferial Muchlis Abdul Halim, 47, and Mohamad Faiq Hafid, 44.