Reform of the Law on Associations must create an enabling environment, not increase restrictions

OnJuly 2, 2013, the House of Representatives adopted the highly restrictive Billon Civil Organisations (“Ormas Bill”), a bill sponsored by the ruling party, whichwill restrict freedom of association, freedom of expression, freedom ofassembly and freedom of thought, conscience and religion.

ThisBill blatantly infringes upon international human rights commitments bindingIndonesia. Six years ahead, in 2007, the UN Special Representative of theSecretary General on the Situation of Human Rights Defenders had alreadypointed out to a number of restrictive provisions in the law currently in force(Law 8/195) and called upon the authorities to repeal it and adopt a legalframework in consonance with human rights standards. At the time, the Ministryof Home Affairs had indicated that the Parliament would initiate a reform as amatter of priority.

Yet,the recently adopted bill far from fulfilling its promises only risks toincrease the interference of government into the activities of NGOs, moreparticularly human rights NGOs. Instead of being based on the principle of theright to freedom of association, the Bill seems to contend that NGOs shall beresponsible for the achievement of Indonesia's national goals, based on the“Pancasila” ideology[1].This reference, which pervades the whole Bill, risks to subject the creationand operation of NGOs to a large range of subjective interpretations by bothcentral and local government bodies. Authorities may use this reference totarget all legitimate activities carried out by human rights NGOs, includingthe expression of criticisms aimed at improving respect of human rightsstandards.

Inaddition, Article 5 of the Bill provides for a limited list of objectives thatan NGO may serve. While this list does not include human rights, it refers tovague or discriminatory purposes such as “maintaining the value of religion andbelief in Almighty God”, “preserving and maintaining the norms, values, morals,ethics and culture”, “establishing, maintaining and strengthening the unity ofthe nation” and “realising the goals of the State”.

Finally,the Bill places supplementary restrictions upon the creation and operation offoreign NGOs, which must obtain a permit from the Ministry of Foreign Affairsand are prohibited from conducting activities likely to disrupt “stability andoneness” as well as “practical political activities” or fundraising oractivities likely to “disrupt diplomatic ties”.

Centraland local government authorities would be allowed to use a wide array of vagueor subjective grounds to scrutinise the operation and funding of independentNGOs. They can go as far as suspending or closing down NGOs deemed incontravention, without any prior judicial review.

“Theright to freedom of association is a fundamental right, which plays a vitalrole in the promotion and protection of all human rights and the promotion ofthe rule of law and democratic principles. Any infringement to this rightundermines the respect of all other human rights. While some restrictions maybe imposed, freedom should remain the rule and restrictions the exception.Restrictions provided for in the Bill clearly impair the essence of the right”, declared Karim Lahidji, FIDH President.

“Ourorganisations are concerned that the current bill was drafted in an attempt tostifle civil society organisations, in particular human rights NGOs. Contraryto recommendations made by local, regional and international NGOs as well asseveral UN mechanisms, the provisions of the current draft law contraveneinternational standards and among others would give the Minister of HomeAffairs the power to unduly interfere with the internal management andactivities of NGOs, including human rights NGOs, on the pretext of compliancewith vague concepts”, added GeraldStaberock, OMCT Secretary General.

“TheBills fails to address critical issues pointed out by the SpecialRepresentative during her visit in 2007 and, instead of creating an enablingenvironment for NGOs, adds more restrictive conditions for the set up andoperation of NGOs. The most repressive and problematic provisions still remain.If signed into law, the bill will represent a further setback to the enjoymentof human rights in the country, and would blatantly violate most basicinternational human rights standards on the right to freedom of association ofhuman rights defenders”, said Haris Azhar,KontraS Coordinator.

Ourorganisations denounce the provisions of this bill, which blatantly violatesinternational and regional human rights standards relating to freedom ofassociation, including the International Covenant on Civil and Political Rights(ICCPR) ratified by Indonesia, as well as the 1998 United Nations Declarationon Human Rights Defenders, and in particular Article 5 (on the right “to form,join and participate in non-governmental organisations, associations orgroups" and “to communicate with non-governmental or intergovernmentalorganizations”) and Article 13 (on the right “to solicit, receive and utilizeresources for the express purpose of promoting and protecting human rights andfundamental freedoms through peaceful means”).

Ourorganisations therefore strongly urge the President of Indonesia not to signthe Bill into law and review it so as to conform with international humanrights law, and in particular with the best practices defined by the UnitedNations Special Rapporteur on Freedom of Assembly and Association in his firstreport to the UN Human Rights Council.

***

Analyticaloverview of most problematic provisions of the Bill

Problematicprovisions include the following:

Criteriafor registration contain ideological and / or subjective elements

TheBill requires NGOs to uphold the “Pancasila” ideology. This vague criterioncould potentially allow the authorities to target all legitimate activitiescarried out by human rights NGOs, including the expression of criticisms aimedat improving respect of human rights standards.

Limitson categories of activities based on ideological and / or subjective elements

TheBill subjects NGOs to vague prohibitions and bans. Local NGOs are also requiredto maintain “religious values”. The Bill provides for prohibitions and bansalready covered by provisions of the Indonesian Criminal Code (KUHP), thusimplying that NGOs are more likely to commit such violations. Therefore, NGOsare particularly vulnerable to criminal charges such as blasphemy againstestablished religions, promoting separatism, disruption of public order,violation of Pancasila or advocating violence.

Riskof increased interference by the executive based on ideological and / orsubjective elements

TheBill places authority on NGO affairs in the Directorate General of NationalUnity and Politics of the Ministry of Home Affairs to control the activities ofNGOs and their sources of funding. A political body is thus responsible forassessing whether NGOs' activities or sources of funding NGO are in line of thePancasila ideology. This provision grants excessive discretionary power to theExecutive to interfere into the activities and funding of NGOs.

TheBill also requires NGOs to use accounts in national banks (Article 37). Thisrequirement is discriminatory as it only applies to NGOs and no other privateor public actors.

Finally,the Bill gives central and local government officials discretionary powers tosuspend and dissolve civil society organisations, without prior judicial review(Article 60 et al.).

Acompulsory registration system

TheBill requires all NGOs to register under the Directorate General of National Unity andPolitics of the Ministry of Home Affairs andthe Ministry of Justice and Human Rights. The fact that the Ministry of HomeAffairs has a history of seeking to control civil society sends a clear messageto the NGO community that the authorities want to strengthen their grip oncivil society.

TheBill also provides for a burdensome registration process.

Additionalrestrictions on foreign NGOs or foreign funders

TheBill significantly curtails the activities of foreign associations, which mustobtain a permit from the Ministry of Foreign Affairs to operate (Article 44),and whose activities must be in accordance with “Pancasila”, should not disruptthe “stability and oneness” of Indonesia, and should not carry out “practicalpolitical activities” or fundraising or activities “which disrupt diplomaticties” (Article 52). In addition, foreign nationals wishing to (co)found an NGOmust have lived in Indonesia for at least seven consecutive years and placeRp10 billion (over US$1 million) of their personal wealth in the association(Article 47).

[1] Pancasila is the official philosophical foundation of the Indonesianstate. Pancasila comprises five principles held to be inseparable andinterrelated: belief in the one and only God, just and civilized humanity, theunity of Indonesia, democracy guided by the inner wisdom in the unanimityarising out of deliberations amongst representatives, social justice for all ofthe people of Indonesia.