The Commission for the Disappeared and Victims of Violence (KontraS) strongly protest with the establishment of the Regulation in lieu No. 2/2017 regarding the alteration of the Law No. 17/2013 regarding Mass Organization. This Regulation in lieu already shown the insecurity character and state impediment in seeing the dynamics of the freedom of assembly, association and including with the interpretation competition of the freedom of expression situation as well as the idea of state and nationality in Indonesia. The issue of the Regulation in lieu is a bad indication of the spirit of the protection of fundamental freedoms that actually could manage dynamically with utilizing the test tool and the function of law enforcement.

KontraS already recorded several important matters that could trigger the legal issues and human rights protection in the future with the establishment of this Regulation in lieu:

First, regarding the ambiguous interpretation of derogable human rights. According to the international human rights law, the derogable rights with several strict measures and regulated by the international human rights instrument through the International Covenant on Civil and Political Rights (ICCPR). The derogation could be utilized legitimately by the state parties from the ICCPR to guarantee the state ongoing state attempt on absolute protection of the other human rights operationalization if the threat, conflict and emergency situations occurred.

Within this document, the derogation then referred directly towards the article 4 of ICCPR (particularly regarding the emergency) that found the legal basis through the verdict of Constitutional Court of Indonesia No. 138/PUU-UI/2009 that could describe such as:

However, KontraS did not see the operationalization from the “urgent and coerce matters” until the Constitutional Court verdict, article 4 of ICCPR, that elaborated through the article 22 (1) and 28J of 1945 Constitution (related with the special situation and emergency situation and state authority to limiting the human rights) that also linked with the human rights particularism in Southeast Asia region that create its own sentiment on human rights universalism as referred from the ASEAN Human Rights Declaration (AHRD), that according to KontraS opinion with referring to the AHRD that has various critics and concept impairment also decreasing the Regulation in lieu intensity itself. The state once again already utilized the concept of ambiguous derogation that interprets the situation of “urgent and coerces” as the result of the law enforcement situation that already shabby recently to become the justification for the Regulation in lieu No. 2/2017.

According to the General Comments from the United Nations Human Rights Committee (the committee that established by the United Nations for the ICCPR monitor), that derogation should be non-permanent and exceptional. The major matter is that whether the state authority already declared that the state situation in the measure of “emergency” and “urgent and coerce”? The existence of this Regulation in lieu will be tested strictly with the legality measures and the availability of rule of law that could give the reference.

Second, regarding the excessive prohibition and unmeasured of the article 59 (2). KontraS already found several infelicities from the logic that offered by the government to guarantee the political and security stability grasped accordingly. Why? The article 59 (2) provide prohibition measures rather than strong and excessive limitation within the issues and topics such as (a) the prohibition to adopt the symbol that having a similar matters with the mass organization, state, or international organization, (b) the prohibition to receive and giving, including collecting funds for the political parties, (c) the prohibition for the mass organization to conduct blasphemy and violence, including taking a stances and acts resembled with the law enforcement apparatus, and (d) the mass organization issue with the prohibition of separatism including the spread of ideas and teachings that against with the Pancasila.

For KontraS the four points above if already been checked well in the article 60 and 61 regarding the administrative sanction and criminal sanction really stunt the meaning of law enforcement in Indonesia. Within the article body we did not see at all the court mechanism that available and guaranteed by the state; particularly if some mass organization would like to demand the unilateral derogation act by the state. The administrative sanction that appeared in the article 61 emphasized on: written warning (1 warning on 7×24 hours), the activities terminate, the revocation of the certificate of registration or the legal status of having the consideration by the Minister and related government bodies that related with the law and human rights section. Besides, for those whose conducted violence and public order (Article 59 (3) a and b and 59 (4)) will be punished 5-20 years maximum pf lifetime imprisonment. There are also nuances of confounding several issues that being politicized lately such as blasphemy law, the expression of violence advocacy by the mass organization; with the major fundamental issue such as injustice that occurred in Papua in the basket of a similar instant solution.

The non-existence of judicial space in the Regulation in lieu document actually violated the article 14 of ICCPR, Article 17 and 18 of Law No. 39/1999, Criminal Code (KUHP) as well as Criminal Procedure Code (KUHAP) regarding the fair trial. For whom already violated the Article 59 (2) within the state perspective and legal authority are the potential threat for the state. This article then could threaten the mass organizations that already present with the idea of strong human rights and inviting the state to operationalized the basic state ideology including Pancasila consequently with the trend of global accountability that could become the threat target.

Third, the unable of state to distinguish the limitation of the rights with the urgent situation. As on the first point, the issue “urgent and coerce” seem blurred and forced with the concept of rights limitation. Within the General Comments No. 29 of the article 4 of ICCPR, the Human Rights Committee explained that “derogation to several obligations of the Covenant in the moment and emergency situation should be separated with the prohibition or limitations that allowed in the normal/peaceful moments for several regulations that actually being regulated in the Covenant.” (Para.4). This comment wanted to show that state actually – without a blurred Regulation in lieu could still conduct rights limitation with existed law enforcement. Moreover, the article 4 of ICCPR should also be followed with the article 5 of ICCPR that enlighten the major state obligation to utilize the excessive interpretation in operationalizing the article 4 of ICCPR.

For further information, you may contact Ms. Fatia Maulidiyanti through email at [email protected]