On July 2, 2013, the House of Representatives adopted the highly restrictive Bill on Civil Organisations (“Ormas Bill”), a bill sponsored by the ruling party, which will restrict freedom of association, freedom of expression, freedom of assembly and freedom of thought, conscience and religion.
This Bill blatantly infringes upon international human rights commitments binding Indonesia. Six years ahead, in 2007, the UN Special Representative of the Secretary General on the Situation of Human Rights Defenders had already pointed 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 legal framework in consonance with human rights standards. At the time, the Ministry of Home Affairs had indicated that the Parliament would initiate a reform as a matter of priority.
Yet, the recently adopted bill far from fulfilling its promises only risks to increase the interference of government into the activities of NGOs, more particularly human rights NGOs. Instead of being based on the principle of the right to freedom of association, the Bill seems to contend that NGOs shall be responsible 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 creation and operation of NGOs to a large range of subjective interpretations by both central and local government bodies. Authorities may use this reference to target all legitimate activities carried out by human rights NGOs, including the expression of criticisms aimed at improving respect of human rights standards.
In addition, Article 5 of the Bill provides for a limited list of objectives that an NGO may serve. While this list does not include human rights, it refers to vague or discriminatory purposes such as “maintaining the value of religion and belief in Almighty God”, “preserving and maintaining the norms, values, morals, ethics and culture”, “establishing, maintaining and strengthening the unity of the nation” and “realising the goals of the State”.
Finally, the Bill places supplementary restrictions upon the creation and operation of foreign NGOs, which must obtain a permit from the Ministry of Foreign Affairs and are prohibited from conducting activities likely to disrupt “stability and oneness” as well as “practical political activities” or fundraising or activities likely to “disrupt diplomatic ties”.
Central and local government authorities would be allowed to use a wide array of vague or subjective grounds to scrutinise the operation and funding of independent NGOs. They can go as far as suspending or closing down NGOs deemed in contravention, without any prior judicial review.
“The right to freedom of association is a fundamental right, which plays a vital role in the promotion and protection of all human rights and the promotion of the rule of law and democratic principles. Any infringement to this right undermines the respect of all other human rights. While some restrictions may be 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.
“Our organisations are concerned that the current bill was drafted in an attempt to stifle civil society organisations, in particular human rights NGOs. Contrary to recommendations made by local, regional and international NGOs as well as several UN mechanisms, the provisions of the current draft law contravene international standards and among others would give the Minister of Home Affairs the power to unduly interfere with the internal management and activities of NGOs, including human rights NGOs, on the pretext of compliance with vague concepts”, added Gerald Staberock, OMCT Secretary General.
“The Bills fails to address critical issues pointed out by the Special Representative during her visit in 2007 and, instead of creating an enabling environment for NGOs, adds more restrictive conditions for the set up and operation of NGOs. The most repressive and problematic provisions still remain. If signed into law, the bill will represent a further setback to the enjoyment of human rights in the country, and would blatantly violate most basic international human rights standards on the right to freedom of association of human rights defenders”, said Haris Azhar, KontraS Coordinator.
Our organisations denounce the provisions of this bill, which blatantly violates international and regional human rights standards relating to freedom of association, including the International Covenant on Civil and Political Rights (ICCPR) ratified by Indonesia, as well as the 1998 United Nations Declaration on Human Rights Defenders, and in particular Article 5 (on the right “to form, join and participate in non-governmental organisations, associations or groups" and “to communicate with non-governmental or intergovernmental organizations”) and Article 13 (on the right “to solicit, receive and utilize resources for the express purpose of promoting and protecting human rights and fundamental freedoms through peaceful means”).
Our organisations therefore strongly urge the President of Indonesia not to sign the Bill into law and review it so as to conform with international human rights law, and in particular with the best practices defined by the United Nations Special Rapporteur on Freedom of Assembly and Association in his first report to the UN Human Rights Council.
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Analytical overview of most problematic provisions of the Bill
Problematic provisions include the following:
Criteria for registration contain ideological and / or subjective elements
The Bill requires NGOs to uphold the “Pancasila” ideology. This vague criterion could potentially allow the authorities to target all legitimate activities carried out by human rights NGOs, including the expression of criticisms aimed at improving respect of human rights standards.
Limits on categories of activities based on ideological and / or subjective elements
The Bill subjects NGOs to vague prohibitions and bans. Local NGOs are also required to maintain “religious values”. The Bill provides for prohibitions and bans already covered by provisions of the Indonesian Criminal Code (KUHP), thus implying that NGOs are more likely to commit such violations. Therefore, NGOs are particularly vulnerable to criminal charges such as blasphemy against established religions, promoting separatism, disruption of public order, violation of Pancasila or advocating violence.
Risk of increased interference by the executive based on ideological and / or subjective elements
The Bill places authority on NGO affairs in the Directorate General of National Unity and Politics of the Ministry of Home Affairs to control the activities of NGOs and their sources of funding. A political body is thus responsible for assessing whether NGOs’ activities or sources of funding NGO are in line of the Pancasila ideology. This provision grants excessive discretionary power to the Executive to interfere into the activities and funding of NGOs.
The Bill also requires NGOs to use accounts in national banks (Article 37). This requirement is discriminatory as it only applies to NGOs and no other private or public actors.
Finally, the Bill gives central and local government officials discretionary powers to suspend and dissolve civil society organisations, without prior judicial review (Article 60 et al.).
A compulsory registration system
The Bill requires all NGOs to register under the Directorate General of National Unity and Politics of the Ministry of Home Affairs and the Ministry of Justice and Human Rights. The fact that the Ministry of Home Affairs has a history of seeking to control civil society sends a clear message to the NGO community that the authorities want to strengthen their grip on civil society.
The Bill also provides for a burdensome registration process.
Additional restrictions on foreign NGOs or foreign funders
The Bill significantly curtails the activities of foreign associations, which must obtain a permit from the Ministry of Foreign Affairs to operate (Article 44), and whose activities must be in accordance with “Pancasila”, 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” (Article 52). In addition, foreign nationals wishing to (co)found an NGO must 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 (Article 47).