2014: Shrinking space for civil society in Indonesia – the story of the advocacy to stop the enactment of Societal Organisation Law

– Poengky Indarti, Executive Director, the Indonesia Human Rights Monitor (Imparsial) –

After Suharto stepped down in 1998, Indonesia was becoming a democratic country that gave freedom to the people to associate and assemble. But the people’s freedom was only enjoyed for 15 years. In 2013, the Government and Parliament passed the Law on Societal Organisation (known as Ormas Law) which limited freedom of association and assembly of citizens.

Indonesia’s attempt to limit the space for civil society

In 2005 the Government of Indonesia, through the Ministry of Home Affairs, was planning to replace the Law No. 8 from 1985 on Societal Organisation (Ormas Law). The reason for this move was that the law was considered to no longer fit with existing conditions. From 1985 to 1998, the Ormas Law was used by the New Order regime[1] to control and monitor civil society organisations (CSOs), especially those that were critical of the Government.

Indeed, after the reform of 1998, more and more organisations were being set up by civil society in Indonesia to fill the void that had been there due to the lengthy period the New Order Government was in power. People hoped that the democratic transition in Indonesia would benefit from these CSOs with the idea being that if there would be more organisations, they would be better at monitoring the Government. This, in turn, upset the Government, since it made it harder for them to control the CSOs, including controlling the flow of funds – received from domestic or foreign donors – that were being given to civil society.

The Government was not willing to openly discuss the new proposed Bill with civil society. The drafting of the Bill was a secretive process, and afterwards it was quietly socialised by the Ministry of Home Affairs with specific organisations that were considered to be more supportive of the Government.

Other groups though did not agree with the new proposed Bill, since they considered it to be a lot more restrictive than the old Bill. They started to voice their objections publically. For this specific purpose they formed the Coalition for the Freedom of Association (KBB). Imparsial joined the KBB in 2011.

The beginning of the campaign

Imparsial had heard about the Government’s plan to revise the Ormas Bill, but we were one of the organisations that was never being invited by the Ministry of Home Affairs to discuss it. We gained access to the draft Bill though from other sources, and examined it from a human rights perspective. Subsequently, we started expressing our criticism through mass media.

Imparsial also tried to find information about which donors had funded the drafting of the Bill. We then tried to lobby the donor Governments to stop giving funding assistance, since the Bill would obstruct the freedom of civil society. One donor actually stopped its funding assistance to the Ministry of Home Affairs. However, another donor came through, so it did not affect the funds of the Ministry to continue working on the Bill to change the Ormas Law.

There were several draft versions of the Bill, until finally in 2011 the House of Representative suddenly publicly announced that the Parliament had taken the initiative to submit a Bill to revise the Ormas Law and replace the Law No. 8 from 1985. The claim that the Bill was initiated by Parliament was disputable considering it originally stemmed from the Ministry of Home Affairs.

It opened the door to suspicions that this strategy was purposely developed by the Government and Parliament to smoothen the process of the adoption of the Bill. With Parliament declaring that the Bill was their initiative, the expectation would be that the deliberations of the Bill would run effortlessly. While, if the submission had been announced to the public as coming from the Government, it would have created more opportunities for civil society to resist. For example, civil society could have lobbied the different factions of the House to reject the Government’s proposal, but with the initiative supposedly coming from Parliament itself, these same factions could not reject it.

The Chairman of the Special Committee that oversaw the drafting of the law on mass organisations was Abdul Malik Haramain of Partai Kebangkitan Bangsa (PKB). Haramain was quoted in the media as remarking that ‘(..) from the beginning CSOs were in favour and against the Bill, given that it relates to the freedom of assembly, association and so forth. I am aware of the tensions that will arise’.

Moreover, Nahdlatul Ulama and Muhammadiyah[2] rejected the initial draft of the Bill. Yet, the House continued to engage with those that opposed the Bill. According to Haramain, the crucial points of discussion concerning the Bill were: the facilitation of empowerment of community organisations, including CSOs and Community Based Organisations (CBOs); the regulations on foreign institutions and dispute resolution with community organisations; and the prohibition of or sanctions on CSOs.

Beyond the normal alliances

Together with KKB, Imparsial developed a strategy for approaching large groups that were outside of the normal circles of non-governmental organisations (NGOs) to strengthen the struggle. We approached groups, like Nahdlatul Ulama and Muhammadiyah, who rejected the Bill, as well as labour unions, who would, it turned out, also be affected by the Bill. In addition, KKB organised public discussions, press-conferences, press-briefings and lobbied political parties.

We also disseminate information about the upcoming Bill and the consequences it would have through our networks in other regions of Indonesia. The hope was that, even though the majority of KBB members were NGOs based in Jakarta, by disseminating the information more broadly the actions and protests would be carried out simultaneously in other regions.

This was based on a lessons learnt from the past, when we made the mistake of only focusing on the movement in Jakarta.

United Nations Special Rapporteurs

At the same time, FORUM-ASIA organised a consultation on human rights defenders (HRDs) in Asia, which was held in Bangkok in September 2011. The United Nations (UN) Special Rapporteur on the rights to freedom of peaceful assembly and of association, Maina Kiai, was also invited. As a member of FORUM-ASIA, Imparsial attended the consultation and raised the issue of the plans of the Government and Parliament of Indonesia to replace the Law on Societal Organisation with a new Bill that would be much more restrictive of the freedom of association.

The UN Special Rapporteur took the report submitted by Imparsial very seriously. So in January 2012, Maina Kiai along with three other UN Special Rapporteurs, Margaret Sekaggya, the UN Special Rapporteur on the situation of human rights defenders, Heiner Bielefeldt, the UN Special Rapporteur on freedom of religion or belief, and Frank La Rue, the UN Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, issued a statement addressing the Government of Indonesia. The statement warned Indonesia that the ‘Restrictive Bill threatens freedoms of association, expression and religion’.[3]

GENEVA (14 February 2013) – A group of United Nations independent experts on freedoms of association, expression, and religion and on the situation of human rights defenders today warned that the Bill on Mass Organisations – due for vote later this week in Indonesia – threatens with undue restrictions the rights to freedom of association, expression, and religion. They urged Members of Parliament to amend the Bill to bring it in line with international human rights norms and standards.

‘The State must ensure that any restriction on the rights to freedom of association, expression, and religion is necessary in a democratic society, proportionate to the aim pursued, and does not harm the principles of pluralism, tolerance and broadmindedness’, stressed the UN Special Rapporteur on the rights to freedom of peaceful assembly and of association, Maina Kiai. The expert noted that this legislative initiative runs contrary to the remarkable progress towards democratisation Indonesia has made since the past decade, which has paved the way for a flourishing civil society.

The Bill on Mass Organisations imposes the requirement on the founding of associations not to be in contradiction with Pancasila – the official State philosophy in Indonesia that consecrates the belief ‘in the One and Only God’.[4] It also stipulates that organisations have the duty to maintain religious values. ‘These provisions can violate freedom of religion or belief’, stressed the Special Rapporteur on freedom of religion or belief, Heiner Bielefeldt. He further clarified that ‘freedom of religion or belief has a broad application, covering also non-theistic and atheistic convictions.’

Associations are not only restricted to limited categories of activities by the Bill, but also subjected to vague prohibitions, including bans on conducting activities which ‘endanger the unity and safety of the Unitary Republic of Indonesia’ and ‘embracing, instigating, and propagating beliefs and religions conflicting with Pancasila.’

‘I am dismayed by these provisions; they are illegitimate and must be amended accordingly’, Mr. Kiai highlighted, noting that the Government has also proposed to further ban ‘activities which are the duty and jurisdiction of the law enforcers and government,’ which could be interpreted as preventing associations from uncovering instances of bad governance, including corruption cases.

‘Associations should be free to determine their statutes, structures and activities and to make decisions without State interference’, Mr. Kiai pointed out, warning that the Bill threatens associations with burdensome administrative requirements.

The Bill also allows the Government to oversee the administration of associations through the establishment of an information system, to be determined by regulations. ‘The use of such a system could infringe on the autonomy of civil society organisations and on their rights to privacy and freedom of expression’, said the Special Rapporteur on the promotion and protection of the rights to freedom of opinion and expression, Frank La Rue.

The Bill also significantly curtails the activities of foreign associations, which must obtain a permit from the Ministry of Foreign Affairs to operate, and whose activities must be in accordance with the philosophy of Pancasila as embedded in the legislation, should not disrupt the ‘stability and oneness’ of Indonesia, and should not carry out ‘practical political activities’ or fundraising or activities ‘which disrupt diplomatic ties.’

In addition, foreign nationals willing to (co)found an association face discrimination as they must, among other things, have lived in Indonesia for at least seven consecutive years and place Rp10 billion (over US$1 million) of their personal wealth in the association.

‘I am concerned that certain provisions in the Bill will hamper the legitimate human rights work of civil society in the country, in particular of foreign societal organisations’, said, the Special Rapporteur on the situation of human rights defenders, Margaret Sekaggya.

Finally, the Government may suspend associations without obtaining a prior court order. ‘Let me stress that suspension of associations should only be sanctioned by an impartial and independent court in case of a clear and imminent danger resulting in a flagrant violation of domestic laws, in compliance with international human rights law’, stated Mr. Kiai.

‘We stand ready to provide technical assistance needed with a view to ensuring that the Bill meets international law standards’, the experts concluded.

The deliberations on the Bill continued

However, the attention of the international community did not make the Indonesian Government back down. Instead, the deliberations on the Bill continued.

After months of delays and intense debate, the House of Representatives on Tuesday, 2 July 2013, passed into law the Mass Organisations Bill, which gave the Government greater control over public activities, including the power to disband an organisation deemed a threat to the State.

Out of the 361 Members of Parliament (MPs) who attended the plenary meeting on Tuesday, 311 voted for the Bill’s enactment, saying that the country needed such legislation to empower local organisations and counter foreign intervention in the country through NGOs. 199 parliament members skipped the plenary.

The Great Indonesia Movement (Gerindra) Party, the National Mandate Party (PAN) and the Peoples Conscience (Hanura) Party were the only factions to oppose the bill, which activists have said could be used by the powers that be to silence political dissidents.

‘I am aware of the criticism out there. This law may not satisfy all groups but this is the best we can do,’ said Abdul Malik Haramain, who chaired the House’s special committee deliberating the bill.

Religious groups, such as Muhammadiyah, the Indonesian Bishops Conference (KWI) and the Indonesian Communion of Churches (PGI), rejected the passage of the controversial Bill and were planning to challenge the newly passed law at the Constitutional Court.

The law placed the Home Ministry in charge of the Government’s integrated information system to screen all mass organisations operating in the country, in coordination with related ministries as well as local administrations.

Speaking before the Parliament, Home Minister Gamawan Fauzi said that his ministry recently recorded 65,577 mass organisations, the Law and Human Rights Ministry 48,866 organisations, the Social Affairs Ministry 25,406 organisations and the Foreign Ministry 108 foreign organisations. According to Gamawan, there were many unregistered organisations operating in the country that should be monitored. ‘We need to manage all of these groups so that they can positively contribute to the country,’ he said.

Critics of the law insisted that it would only grant excessive state control over civil movements in the country.

The UN Human Rights Committee

In July 2013, Imparsial participated in the UN Human Rights Committee’s review session in Geneva on the implementation of the International Covenant on Civil and Political Rights (ICCPR) by the Indonesian Government. During the review session, Imparsial submitted a report on: the violence against HRDs in Indonesia; issues related to West Papua; and the Ormas Law.

The UN Human Rights Committee expressed concern over Law No. 17/2013 which ‘(..) introduces undue restrictions on the freedoms of association, expression and religion of both domestic and ‘foreign’ associations. The Committee is particularly concerned at the provisions in the law that introduced onerous requirements for registration, and the vague and overly restrictive requirements that such associations should be in line with the State’s official philosophy of Pancasila, which propagates the belief ‘in the One and Only God’ (Articles 18, 19 and 22).’[5]

Therefore, the UN Human Rights Committee urged Indonesia ‘to review the Law on Ormas to ensure that it is in compliance with the provisions of articles 18, 19 and 22 of the Covenant’[6], as expounded by the Committee in its general comments No. 22 (1993) on the right to Freedom of Thought, Conscience and Religion and No. 34 (2011) on the Freedoms of Opinion and Expression.

Submission of the judicial review

In December 2013, Imparsial, together with several other organisations, among them Muhammadiyah, submitted a judicial review of the Law on Ormas, particularly Articles 2, 3, 8, 15, 16, 17, 18, 21, 23, 24, 25, 34, 40, 52, and 59.

We invited FORUM-ASIA to submit an amicus curiae to the Constitutional Court. FORUM-ASIA’s critique of the law was as follows:[7]

a. Vague and overbroad restrictive provisions

The international human rights law provides for certain legitimate restrictions to rights. However, as elaborated above, international human rights law sets out that these restrictions must be ‘necessary’ for legitimate purposes, must not be overbroad, and must conform to the principle of proportionality.[8]

In relation to this, the recommendation made by the UN Special Rapporteur on the rights to freedom of peaceful assembly and of association were particularly relevant and instructive, including: that such restrictions must have a legal basis; be prescribed by law, which implies that the law must be accessible and its provisions must be formulated with sufficient precision; and be necessary in a democratic society.[9]

We found that a number of provisions in Ormas Law were vague and overbroad, instead of being formulated with sufficient precision, and could potentially be abused to violate the Right to Freedom of Opinion and Expression, the Right to Freedom of Association, and the Right to Freedom of Religion or Belief.

Articles 2 and 3 of Law No. 17/2013 stated that organisations must not conflict with the Pancasila ideology or the 1945 Constitution, while Article 59(4) prohibited organisations from holding, propagating and advancing any belief or teaching that was in conflict with Pancasila.

These vague and overbroad provisions in reference to Pancasila, which among other things consecrates the belief in ‘the One and Only God’, could potentially violate Article 18 of the ICCPR which ‘protects theistic, non-theistic, and atheistic beliefs, as well as the right not to profess any religion or belief ’, as elaborated by the UN Human Rights Committee in its General Observation No. 22 (1993).[10]

This concern was also raised by the UN Special Rapporteur on freedom of religion or belief, Heiner Bielefeldt, who in a press statement in February 2013 pointed out that such provisions – which was then at its draft stage – ‘can violate freedom of religion or belief ’.[11]

Meanwhile, Article 59(2) (e) of the Ormas Law broadly stipulated that organisations shall not engage in work that falls under the jurisdiction of law enforcement and the government. The Amicus submitted that this particular provision could potentially be abused by the authorities to restrict organisations working in legitimate areas such as monitoring corruption or advocating for security sector reforms, resulting in the possibility that such organisations may run afoul of the law.

Article 52 of Ormas Law imposed further restrictions on ‘foreign’ organisations, requiring them to adhere to Pancasila and prohibiting activities that disrupt the ‘stability and oneness’ of Indonesia, ‘practical political activities’ or fundraising, or activities ‘which disrupt diplomatic ties’.

Any legitimate restriction on the Rights to Freedom of Association and Freedom of Expression must adhere to the principles of necessity and proportionality, as elaborated by the UN Special Rapporteur on the rights to freedom of peaceful assembly and of association[12] and in the UN Human Rights Committee’s General Observations No. 34.[13] The vague and overbroad restrictions imposed under the Ormas Bill, particularly under Article 59 did not adhere to these principles under international human rights norms and standards.

b. Discretionary sanctions and burdensome administrative requirements

Law No. 17/2013 vested discretionary administrative sanction powers to government officials, who may suspend organisations that contravene Articles 21 and 59 of the law without any prior court order (Article 60). This could potentially leave organisations vulnerable to arbitrary imposition of sanctions and restrictions.

The UN Special Rapporteur on the rights to freedom of peaceful assembly and of association, Maina Kiai, in a press statement in February 2013 stated that ‘suspension of associations should only be sanctioned by an impartial and
independent court in case of a clear and imminent danger resulting in a flagrant violation of domestic laws, in compliance with international human rights law’.[14]

The Ormas Law was also problematic because of the unduly prescriptive rules on registration and burdensome administrative requirements under Articles 15-18 of Law No. 17/2013. Overly onerous demands of registration, such as submitting work-plans and organisational statutes under Article 16, which could potentially hinder the ability of particular groups such as informal networks, CBOs and social movements to legally register under the law.

Any rules on legitimation and registration of groups should require the submission only of information which is strictly necessary to ensure sound operations and good governance. The UN Special Rapporteur on the rights to freedom of peaceful assembly and of association also noted that ‘associations should be free to determine their statutes, structures and activities and to make decisions without State interference’.[15]

Conclusion

Finally, a panel of nine judges of the Constitutional Court (MK) partially granted the judicial review of Law on Ormas Number 17 Year 2013 filed by Muhammadiyah and Coalition for the Freedom of Association (KBB), including Imparsial. From a total of 21 articles reviewed, the Constitutional Court cancelled ten articles, namely Article 8, Article 16 paragraph (3), Article 17, Article 18, Article 23, Article 24, Article 25, Article 34, Article 40 paragraph (1), and Article 59 paragraph (1) a. By doing so, the role of the state to limit the space for organisations was reduced.

‘Article 8, Article 16 paragraph (3), Article 17, Article 18, Article 23, Article 24, Article 25, Article 34, Article 40 paragraph (1), and Article 59 paragraph (1) a of the Law on Ormas are contrary to the Constitution 1945 and do not legally binding’, said the Chairman of the Constitutional Court, Hamdan Zoelva when reading the decision in the courtroom of Constitutional Court on Tuesday, 23 December 2014.

***

Poengky Indarti, Executive Director, Imparsial

Poengky Indarti is the founder and Executive Director of Imparsial since 2010. Prior to Imparsial, she was the Head of the Labour Department and Fundraising Department of Indonesian Legal Aid Foundation (YLBHI) and staff of the Fundraising Department of the Commission for Disappearance and Victims of Violence (KontraS). Both, as well as Imparsial, are FORUM-ASIA member organisations.

Poengky has a Master of Laws from the International Human Rights Law Department, Northwestern University School of Law – Chicago and is a member of the Board of Democracy Alliance for Papua (ALDP) and Chairperson of Indonesia Scholarship and Research Support Foundation (ISRSF).

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