9 NGOs call for the repeal of Decree on Associations No. 238 of 2017

​H.E. Mr. Thongloun Sisoulith

Prime Minister

PrimeMinister's Office, Vientiane

LaoPeople’s Democratic Republic

H.E. Mr. Bounnhang Vorachith

President

President’sOffice, Vientiane

LaoPeople’s Democratic Republic

H.E. Mr. Xaysi Santivong

Minister of Justice

Ministryof Justice, Vientiane

LaoPeople’s Democratic Republic

13December 2017

Dear H.E. Mr. Thongloun Sisoulith,

H.E. Mr. Bounnhang Vorachith and

H.E. Mr. Xaysi Santivong,

RE: REPEALOF DECREE ON ASSOCIATIONS No. 238 of 2017

The InternationalCommission of Jurists (ICJ), Amnesty International, Human Rights Watch, theInternational Federation for Human Rights (FIDH), the Asian Forum for HumanRights and Development (Forum-Asia), ASEAN Parliamentarians for Human Rights(APHR), the International Service for Human Rights (ISHR), The Centre for Civiland Political Rights (CCPR-Centre) and the World Organisation Against Torture(OMCT) express deep alarm about the issuingand coming into force of the Decree on Associations (No. 238 of 2017) (‘theDecree’) in the Lao People’s Democratic Republic (Lao PDR).

We call on theGovernment of Lao PDR to repeal or significantly amend the Decree to bring itinto line with international human rights law and standards. We also call onthe government to fundamentally reform the legal framework for the regulationof associations in Lao PDR and bring it into accord with international humanrights law and standards. Repeal or amendment of the Decree must come as partof this fundamental reform of the framework of regulation of associations.

The Decree on Associations,dated 11 August 2017, came into force on 15 November 2017.[1]Pursuant to its article 81, this law supersedes the Decree on Associations (No.115 of 2009) dated 29 April 2009 (‘2009 Decree’).[2]The 2009 Decree had already included imprecise and overly broad terms that ledto arbitrary restrictions on the rights to freedom of association, freedom ofopinion and expression and the right to privacy in Lao PDR. The new Decreeappears to make things even worse.

The current Decree givesgovernment authorities in Lao PDR sweeping powers that enable arbitraryrestriction or denial of fundamental rights, including the power tounreasonably control and/or prohibit the formation of associations; arbitrarilybroad powers to inspect, monitor and curtail the activities and finances ofassociations; the power to order the dissolution of associations on arbitrarygrounds and without right of appeal; and powers to discipline associations andindividual members on arbitrary grounds. The Decree also includes measures tocriminalize unregistered associations and allow for prosecution of theirmembers.

As a party to theInternational Covenant on Civil and Political Rights (ICCPR), Lao PDR has alegal obligation to respect, protect and guarantee, among others, the rights toprivacy (article 17), freedom of opinion and expression (article 19) andfreedom of association (article 22). Rights to form and to join associationsare inherent components of the right to freedom of association.[3]Only restrictions that meet the requirements[4]of the ICCPR are permitted: restrictions must recognize the purposes of theICCPR and “conform to the strict tests of necessity and proportionality.”[5]

The UN Declaration onHuman Rights Defenders also affirms the rights of persons to freely form andjoin associations – non-governmental or otherwise – and asserts States’ dutiesto implement necessary legislative, administrative or other measures foreffective promotion and protection of these freedoms.

New Provisions ofParticular Concern

The current Decreeimposes on associations and individual members more explicitly restrictivelimitations than had been imposed under the 2009 Decree.

Under the current Decree,government authorities have wider arbitrary powers to prohibit activities byassociations, dissolve and suspend associations, and “discipline” or criminallyprosecute associations or their individual members who violate the law[6].Restrictions on associations’ activities have also been expanded under article31 of the current Decree, and key terms in the law delineating restrictions arenot defined, allowing for arbitrary decision-making by governmentauthorities.

Violation ofprohibitions listed under article 31 of the current Decree now makes anassociation explicitly subject to dissolution under article 48. Article 48.1.4 alsoexplicitly allows for dissolution if an association “does not apply forregistration”. This further expands the grounds for dissolution that were setout in the 2009 Decree – “expiry ofoperating terms”, “failure of associations to operate over 12 months” or“attainment of objectives stipulated in an association’s charter” – which hadalready allowed for arbitrary restrictions on the right to freedom of association.These restrictions are retained in article 48 of the current Decree.

The current Decree alsomaintains other restrictions on fundamental rights which had been codified inthe 2009 Decree, namely,

- Requiring prior approvalby government agencies, at various stages of establishment, for the formationof any association;

- Apparently disallowing formationof groups on grounds such as “political or other opinion”, “religion” or“social origin”, which violates article 2(1) of the ICCPR and article 2(2) of theInternational Covenant on Economic,Social and Cultural Rights (ICESCR), which Lao PDR has ratified;

- Imposing an extensiveand time-consuming process of government scrutiny of all members, functions andfunds of associations prior to registration and renewal of registration of anassociation, requiring individuals to submit unjustifiably intrusive personalinformation to government authorities for approval, which could amount to“arbitrary interference” on the right to privacy under article 17 of the ICCPR;

- Maintaining stringentmonitoring and inspection at village, provincial and central levels of almostall operations of associations, including their organizational structure,activities and use of resources.

In the attached legalbrief, these limitations have been detailed with reference to relevantprovisions of the law.

Recommendations

We call upon theGovernment of Lao PDR to immediately repeal or significantly amend the Decreeon Associations, to respect its obligations under international law, and toconduct a fundamental reform of the framework of regulation of associations.Arbitrary, overbroad and discriminatory elements of the current framework mustbe entirely removed.

In particular:

· The law should makeclear that individuals are free to form private unincorporated associationswithout needing to notify or register the association with the State.

· For those individualswho wish to incorporate an association so that it acquires separate legalpersonality, we recommend that the law provide for automatic registration uponnotification by individuals where simple administrative requirements are met,rather than a system requiring prior permission of State officials. This ispertinent given that legal provisions are likely, in the context of Lao PDR, tobe applied in practice in a discriminatory manner to prevent the formation oroperations of associations perceived by the authorities as inconsistent withthe ideology or political policies of the Lao People’s Revolutionary Party.

· Discretion ofauthorities to refuse to register an association should be eliminated or atleast be very narrowly defined, and applicants should have the right to appealor review, by an independent and impartial court, of any refusal or othermeasures that could negatively impact the association. If authorities retainany authority to dissolve registered associations, the grounds for suchdissolution should be explicitly and narrowly defined. This is to precludedissolution based on discrimination on grounds of political opinion or othergrounds protected by international human rights law and standards: for example,grounds for dissolution could be limited to situations where the associationhas been directly used to commit acts properly characterized as criminal inaccordance with international human rights law and standards. The law shouldalso provide that dissolution may only be ordered by an independent andimpartial court, after a fair hearing for affected persons and associations.[7]

Please do not hesitateto contact us if you have any comments or questions. We stand by to provide anyassistance required.

We appreciate yoururgent attention to this matter.

Yours faithfully,

Saman Zia-Zarifi

Secretary-General

International Commission of Jurists

Phil Robertson

Deputy Director, Asia Division

Human Rights Watch

James Gomez

Regional Director

South East Asia and the Pacific

Amnesty International

Dimitris Christopoulos

President

International Federation for Human Rights (FIDH)

Hon. Charles Santiago, MP

Chairperson

ASEAN Parliamentarians for Human Rights (APHR)

Phil Lynch

Director

International Service for Human Rights (ISHR)

John Samuel

Executive Director

Asian Forum for Human Rights and Development (Forum-Asia)

Patrick Mutzenberg

Director

The Centre for Civil and Political Rights (CCPR-Centre)

Gerald Staberock

Secretary-General

World Organisation Against Torture (OMCT)

Cc.

H.E. Mr. Saleumxay Kommasith

Minister of Foreign Affairs

Ministryof Foreign Affairs, Vientiane

Lao People’s Democratic Republic

H.E. Mr Khammanh Sounvileuth

Minister of Home Affairs

Ministryof Home Affairs,Vientiane

LaoPeople’s Democratic Republic

H.E. Mr. Phoukhong Sisoulath

Director-General, Department ofTreaties and Law

Ministryof Foreign Affairs, Vientiane

Lao People’s Democratic Republic

[1] This Decree onlyapplies to local non-profit associations (NPAs) and does not governinternational non-governmental organizations (INGOs) in Lao PDR, which areinstead regulated by the Decree on International Non-Governmental Organizations(INGO) (No. 013 of 2010).

[2] Reference was made tothe unofficial English translations of the 2017 Decree, published by theMinistry of Home Affairs, available on the Lao Civil Society Knowledge andInformation System at http://laocs-kis.org/resources/decree-association-2017-unofficial-english-translation/ and the 2009 Decree, made available by the InternationalCenter for Not-for-Profit Law (ICNL) at http://www.icnl.org/research/library/files/Laos/associationsdecree.pdf.

[3] Report of the SpecialRapporteur on the rights to freedom of peaceful assembly and of association,Maina Kiai (2012) UN Doc. A/HRC/20/27 (‘A/HRC/20/27’), §53.

4 Articles 17(1), 19(3) and 22(2) ofICCPR.

5 See e.g. UNHuman Rights Committee (HRC), General Comment No. 34: Article 9 (Freedoms ofOpinion and Expression) (2011) UN Doc. CCPR/C/GC/34, §22.

6 Articles 31, 48, 77 and section 12of the Decree. [7] Although beyond the scope of the current letter and memorandum,courts in Lao PDR are not currently independent or impartial and broaderinstitutional and other reforms are urgently required in that regard. See forreference: Joint Submission to UN Human Rights Committee 121stsession by FIDH and Lao Movement for Human Rights (LMHR) for adoption of the Listof Issues.