Introduction

 1. This amicus brief is submitted on behalf of the Asian Forum for Human Rights and Development (FORUM-ASIA) (“the Amicus”), in accordance with the rules on intervention set by the Constitutional Court of Indonesia. FORUM-ASIA is a Bangkok-based regional human rights non-governmental organisation with 47 member organisations across 16 Asian countries, including in Indonesia, where its members are Aliansi Jurnalis Independen (AJI), Human Rights Working Group, Indonesia (HRWG), Imparsial, Komisi untuk Orang Hilang dan Korban Tindak Kekerasan (KontraS), Perhimpunan Bantuan Hukum dan Hak Asasi Manusia Indonesia (PBHI), Yayasan Sekretariat Anak Merdeka Indonesia (SAMIN), and Yayasan Lembaga Bantuan Hukum Indonesia (YLBHI). FORUM-ASIA works to promote and protect all human rights, and has Consultative Status with the United Nations Economic and Social Council (ECOSOC).

 2. The Amicus submits that Law No. 17/2013 on Societal Organisations (Undang-Undang Republik Indonesia Nomor 17 Tahun 2013 tentang Organisasi Kemasyarakatan) (“Law No. 17/2013”) contains a number of provisions which are in contravention of Indonesia’s international legal obligations relating to the right to freedom of association, the right to freedom of opinion and expression, and the right to freedom of religion or belief as a State party to the International Covenant on Civil and Political Rights (“ICCPR”).

3. A number of international human rights bodies and experts have also raised serious concerns over the restrictive provisions in Law No. 17/2013.

4. This amicus brief focuses on the specific provisions in Law No. 17/2013 that, in the opinion of the Amicus, contravene Articles 18, 19 and 22 of the ICCPR.

International human rights standards and Indonesia’s international human rights obligations

5. Indonesia is State party to the ICCPR. The following Articles in the ICCPR set out the rights to freedom of religion or belief; freedom of opinion and expression; and freedom of peaceful assembly and association, which relate to Law No. 17/2013.

• Article 18 of the ICCPR states:

“1. Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching.

2. No one shall be subject to coercion which would impair his freedom to have or to adopt a religion or belief of his choice.

3. Freedom to manifest one’s religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others.

4. The States Parties to the present Covenant undertake to have respect for the liberty of parents and, when applicable, legal guardians to ensure the religious and moral education of their children in conformity with their own convictions.” [1]

• Whereas Article 19 states:

“1. Everyone shall have the right to hold opinions without interference.

2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.

3. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:

(a) For respect of the rights or reputations of others;

(b) For the protection of national security or of public order (ordre public), or of public health or morals.” [2]

• Meanwhile, according to Article 22 of the ICCPR:

“1. Everyone shall have the right to freedom of association with others, including the right to form and join trade unions for the protection of his interests.

2. No restrictions may be placed on the exercise of this right other than those which are prescribed by law and which are necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others. This article shall not prevent the imposition of lawful restrictions on members of the armed forces and of the police in their exercise of this right.

3. Nothing in this article shall authorize States Parties to the International Labour Organisation Convention of 1948 concerning Freedom of Association and Protection of the Right to Organize to take legislative measures which would prejudice, or to apply the law in such a manner as to prejudice, the guarantees provided for in that Convention.” [3]

6. Indeed, these rights are also specifically guaranteed by the Constitution of the Republic of Indonesia, as enshrined under Article 28E.[4]

7. While international human rights law, including Article 4 of the ICCPR, recognises that these rights are not absolute and may be subjected to certain restrictions, such permissible restrictions are exceptions to the norm, strictly limited in scope, and must conform to strict tests of necessity and proportionality. The UN Human Rights Committee, in its General Comment No. 34, states the following:

“Paragraph 3 expressly states that the exercise of the right to freedom of expression carries with it special duties and responsibilities. For this reason two limitative areas of restrictions on the right are permitted, which may relate either to respect of the rights or reputations of others or to the protection of national security or of public order (ordre public) or of public health or morals. However, when a State party imposes restrictions on the exercise of freedom of expression, these may not put in jeopardy the right itself. The Committee recalls that the relation between right and restriction and between norm and exception must not be reversed.”[5]

“Paragraph 3 lays down specific conditions and it is only subject to these conditions that restrictions may be imposed: the restrictions must be “provided by law”; they may only be imposed for one of the grounds set out in subparagraphs (a) and (b) of paragraph 3; and they must conform to the strict tests of necessity and proportionality.”[6] (emphasis added)

8. Similarly, on restrictions on the rights to freedom of peaceful assembly and of association, the UN Special Rapporteur on the rights to freedom of peaceful assembly and of association, Maina Kiai, in his report to the UN Human Rights Council in 2012 also stated that States should “ensure that any restrictions on the rights to freedom of peaceful assembly and of association are prescribed by law, necessary in a democratic society, and proportionate to the aim pursued, and do not harm the principles of pluralism, tolerance and broadmindedness”.[7]

9. In addition, General Comment No. 27 (1999) of the UN Human Rights Committee states: “In adopting laws providing for restrictions … States should always be guided by the principle that the restrictions must not impair the essence of the right … the relation between right and restriction, between norm and exception, must not be reversed.” [8]

Submissions on problematic provisions in Law No. 17/2013

i. Vague and overbroad restrictive provisions

10. As noted above, international human rights law provides for certain legitimate restrictions to rights. However, international human rights law sets out that these restrictions must be “necessary” for legitimate purposes, must not be overbroad, and must conform with the principle of proportionality.[9]

11. In relation to this, the Amicus finds the recommendation by the UN Special Rapporteur on the rights to freedom of peaceful assembly and of association, 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’” (emphasis added), to be particularly instructive.[10]

12. The Amicus submits that a number of provisions in Law No. 17/2013 are 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.

13. Articles 2 and 3 of Law No. 17/2013 states that organisations must not conflict with the Pancasila ideology or the 1945 Constitution, while Article 59(4) prohibits organisations from adhering, developing, and instigating any doctrine or beliefs which are in contravention with Pancasila. The Amicus submits that these vague and overbroad provisions imposes unnecessary restrictions on organisations, in violation of the right to freedom of association.

14. In addition, the UN Special Rapporteur on freedom of religion or belief, Heiner Bielefeldt, also pointed out in a press statement in February 2013 that such provisions in reference of Pancasila, which among other things consecrates the belief in “the One and Only God”, can violate freedom of religion or belief.[11] Article 18 of the ICCPR “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).[12]

15. Meanwhile, Article 21 states that organisations are obliged to:

a.   carry out activities according to the objectives of the organization;

b.   maintain the unity and integrity of the nation and the oneness of the Unitary State of the Republic of Indonesia;

c.   maintain the values of religion, culture, moral, ethics, and norms of decency and also provide advantages for the society;

d.   maintain public order and establish peace in the society;

e.   make financial management transparently and accountably; and

f.    participate in the national objective achievement.

This provision contains a number of vague and overbroad terms, such as the obligation of organisations to maintain “the unity and integrity of the nation”, “values of religion, culture, moral, ethics, and norms of decency”, as well as “public order”.

16. Similarly, Article 59 (2)(d) broadly prohibits organisations, inter alia, from disrupting “public tranquility and public order”, with no further definition of these terms, which again poses the problem of framing prohibitions in a vague and overbroad manner. This, in effect, vests government authorities with the discretionary power to decide when and how “public tranquility and public order” is deemed to be disrupted.

17. As elaborated in Paragraph 7 of this amicus brief above, the UN Human Rights Committee in its General Comment No. 34 has noted that while “two limitative areas of restrictions on the right (to freedom of opinion and expression) are permitted, which may relate either to respect of the rights or reputations of others or to the protection of national security or of public order (ordre public) or of public health or morals”, any such restriction must not put in jeopardy the right itself, and must conform to the strict tests of necessity and proportionality.[13]

18. Meanwhile, Article 59(2)(e) of Law No. 17/2013 broadly stipulates that organisations shall not engage in work that falls under the jurisdiction of law enforcement and the government. The Amicus submits that this particular provision could potentially be abused by the authorities to restrict organisations working on a wide array of legitimate areas, ranging from monitoring corruption and advocating for security sector reforms to issues of such as education, health, housing, and water. As a result, many organisations’ activities may be possibly be interpreted as violating this provision of the law.

19. Organisations found to violate of Articles 21 and 59 of Law No. 17/2013, which contains vague and overbroad terms of restrictions, are subjected to sanctions under Chapter XVII (Articles 60-82), which the Amicus argues are excessive, arbitrary and in contravention of the principles of proportionality and necessity (See Paragraphs 22-23 of this amicus brief below).

20. Article 52 of Law No. 17/2013 imposes 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”. Such vague and overbroad terms in this provision could again result in the arbitrary interpretation of the law, putting “foreign” organisations also at risk of discretionary sanctions.

21. The Amicus submits that 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[14] and in the UN Human Rights Committee’s General Observations No. 34.[15] The vague and overbroad restrictions imposed under Law No. 17/2013, particularly under Article 59, in the Amicus’ opinion do not adhere to these principles under international human rights norms and standards.

ii. Discretionary sanctions and burdensome administrative requirements

22. Chapter XVII (Articles 60-82) of Law No. 17/2013 provides for sanctions against organisations that contravene Articles 21 and 59. This includes the provision of discretionary administrative sanction powers to government officials, who may order a discontinuation of aids and grants and/or the suspension of activities for organisations found to contravene Articles 21 and 59 (Article 64). Such administrative sanctions do not require any prior court order, except if the organisation in question has national jurisdiction of operation. Clearly, the absence of judicial oversight in cases other than those involving organisations with national jurisdiction of operation could potentially leave organisations vulnerable to arbitrary imposition of sanctions and restrictions. This provision also lacks a clearly-defined procedure for authorities to determine whether an organisation has violated provisions of this law, and denies the right of an organisation to be heard before any such an order for sanction is passed.

23. Even for organisations with national jurisdiction of operation, where the government must seek the consideration of the Supreme Court before imposing the suspension of activities, a maximum period of 14 days is given to the Supreme Court to provide its legal consideration of such cases. Should the Supreme Court not provide any legal consideration within the 14-day period, the government can proceed with imposing the suspension of an organisation’s activities (Article 65). The Amicus further submits that the 14-day period may be insufficient for a party to fully understand and examine the allegations of violations of the law that it faces and to adequately defend itself against such allegations.

24. The UN Special Rapporteur on the rights to freedom of peaceful assembly and of association, Maina Kiai, in a press statement in February 2013 has 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”.[16]

25. The Amicus further raises concern over the unduly prescriptive rules on registration and burdensome administrative requirements under Chapter V (Articles 15-19) 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, community-based organisations and social movements to legally register under the law.

26. The Amicus submits that 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 has also noted that “associations should be free to determine their statutes, structures and activities and to make decisions without State interference”.[17]

Specific recommendations by the UN Human Rights Committee on Law No. 17/2013

27. In August 2013, during the examination of Indonesia’s obligations as State party to the ICCPR, 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’.”[18]

28. The UN Human Rights Committee urged Indonesia “to review the Law on mass organizations to ensure that it is in compliance with the provisions of articles 18, 19 and 22 of the Covenant 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.”[19]

Conclusion

29. For all the above reasons, it is respectfully submitted that various provisions of Law No. 17/2013, including Articles 2, 3, 16, 21, 52, 59, and Chapter XVII (Articles 60-82), as elaborated in this brief, are incompatible with Indonesia’s international legal obligations and Constitutional guarantees of freedom of association, freedom of opinion and expression, and freedom of religion or belief.

30. It is the opinion of the Amicus that should Law No. 17/2013 be allowed to be implemented, the legitimate exercise and enjoyment of the rights to freedom of association, freedom of opinion and expression, and freedom of religion, which are both Constitutionally-guaranteed in Indonesia and internationally-recognised, will be severely impaired. Indeed, the Amicus submits that Law No. 17/2013, with all its restrictive provisions as noted above, is an affront to the principles of democracy and pluralism.

31. This is the opinion of Amicus, prepared by the undersigned, and is subject to the decision of this Court.

Submitted by:

Evelyn Balais-Serrano

Executive Director, FORUM-ASIA

24 March 2014