Response to ANNEX: Questions on best practices that promote and protect the rights to freedom of peaceful assembly and of association. Filled by Human Right Working Group; Indonesia s NGO Coalition for International Human Rights Advocacy (HRWG). Right to freedom of peaceful assembly: 1. In the beginning, the Constitution of the Republic of Indonesia did not resolutely guarantee the right to freedom to associate and to assemble. Article 28 of the 1945 Constitution only states The freedom to associate and to assemble, to express written and oral opinions, etc., shall be regulated by law. In its development, the amendments of 1945 Constitution provide more guarantees to the freedom to associate and to assemble as referred to the Article 28E line (3), Each person has the right to freely associate, assemble, and express his opinions. Therefore, the right is guaranteed by the Constitution and it is constitutional. In addition, guarantee of the right is also regulated in the Law No. 39 of 1999 concerning Human Rights. It is described in the Article 24 (line 1) that states: Each person has the right to assemble, to organize meeting and to associate for peaceful purposes. (Line 2) declares: Each citizen or group of society has the right to establish a political party, non-government institution or other organization to participate in the Governmental and state life, corresponding to the need for protection and promotion of Human Rights according to the law. 2. Technically, the regulation concerning freedom to assemble is stipulated in Law No. 9 of 1998 on the Freedom to Express Opinions in Public. This legislation stipulates that the forms of expressing opinions in public can be conducted through a) protest or demonstration; b) marches; c) rallies; d) free speech pulpit. 1 This law requires that the procedure regarding the implementation of expressing opinion in public obligates a written notification to the Police. 2 Based on the notice, then the Police have the obligation to arrange the safety measures on the place, location, and route, and provide security protection for the peaceful protester participants. 3 The stipulation on Notification is one of requirements that must be fulfilled in expressing opinion publicly, therefore the Police tends to disperse the event if there has not any written 1 Article 9 Law No. 9 of 1998 2 Article 10 line (1) Law No. 9 of 1998 3 Article 13 line 2 and 3 Law No. 9 of 1998
notification submitted. 4 Yet in reality, the Police thus seek for excuses to disperse a demonstration that has been organized peacefully by questioning the receipt of written notification. In fact, the stipulation in Article 510 of Indonesian Penal Code (KUHP) regulated a penalty of two weeks of imprisonment and fine if conducting a protest without a permit from the Police. Besides, several provisions in the Penal Code still have potential to become threats against freedom to assemble, among other is Article regarding insult against the authority in presence of public (Article 207, 310). 4. Normatively, each person who commits violence and hinders others in expressing opinion publicly is liable for penalty based on Legislation No. 9 of 1998. However, the penalty threat for the crime is only 1 (one) year of time. 5 Even in several cases happened there was not any legal process imposed over person or group who had hindered or even dispersed a peaceful assembly. On the other hand there is not any legal responsibility for Police apparatus who applies excessive forces or arbitrary act, except just utilizing internal mechanism in the Police, which is disciplinary and administrative sanction. 5. In the last few years, National Commission on Human Rights has organized various Human Rights trainings for legal apparatuses (including Police members) in a number of provinces. For examples the Human Rights training for law enforcement apparatuses in Banten (February 2010), Human Rights training in Manado, North Sulawesi (May 2010). National Commission on Human Rights also organized Human Rights training for Indonesian Army Special Force (Kopassus) Officers (November 2010). In addition, on May 2011 National Commission on Human Rights also made MoU with the Chief of National Police (Kapolri) regarding co-operation in monitoring the handling of crimal act, study, research and mediation, as well as counseling. However, the capacity building for law enforcement officers accomplished so far has not provides effective impact on the performance of the Police, if compared with the Police s professionalism that still tolerates or even becomes the part of violation against the right to freedom to assemble peacefully. 6. In Indonesia various cases of violation against freedom to assemble peacefully are frequently happened over groups of LGBT. In 2010, there were several records of meetings that had been dispersed, i.e.: 4 The Police can disperse, if there has not any written notification to the Police, conveying of opinion that committed in the vicinity of presidential palace, worship house, military installation, hospital, airport or seaport, train station, road transportation terminal, and national vital objects, committed on national holiday, and carried objects endangering to public safety. Stipulation of Article 15 Law No.9 of 1998 5 Article 18 line (1)
a. The Conference of International Lesbian, Gay, Bisexual, Transgender and Inter Sex Association (ILGA) that was organized in Surabaya on 26-28 March 2010 received attacks and threats from an organization called Front of Islamic Defenders (FPI), whereas the police as the responsible party did not anticipate and prevent the attacks, in the end the conference was canceled. b. On April 30 th, 2010, radical group Front of Islamic Defenders (FPI) forcefully dispersed an event of National Human Rights training for LGBTIQ that was organized by the National Commission on Human Rights and Arus Pelangi. The police did not conduct prevention against the forceful dispersion. The incident was reported to the Police, but there has not any legal process against the perpetrator. c. The dispersion of the 9 th Q Film Festival in 2010 that took place in several cities (Jakarta, Yogyakarta, Surabaya and Makassar). They went through threats and were forcefully dispersed by the groups of Front of Islamic Defenders. In several places, the film screenings remained attainable with strict safeguard from the Police. In Yogyakarta, the film screening was not permitted by the Police without identifiable reason. d. Hardliner Islamic group called FPI Bandung also tried to stop and violently disperse an event of focus discussion group with theme of freedom of religion, which was organized by Setara Institute on January 6 th, 2011. More to the point, the Police s act in handling rally/demonstration tends to use the operation of firearms or excessive force. Several incidents occurred in 2011 i.e.: e. The Police forcefully dispersed 3 rd Congress of Papua People that took place on October 2011. The apparatuses committed shooting using firearms that caused the fatality of three Congress participants. The legal process imposed on the eight members of the Police only reached the ethical code trial (internal mechanism), which only gave written reprimand sanction. f. On December 24 th, 201, Police vehemently dispersed demonstration of inhabitants /farmers who had blocked the road to Sape seaport, Bima, Province of West Nusa Tenggara. The people s act demanded that the Regent of Bima, in the Province of West Nusa Tenggara, to revoke the permit of mining exploration from a gold miner corporation, PT. Sumber Mineral Nusantara (SMN). It was estimated that approximately 600-700 personnel of the Police (Mobile Brigade (Brimob) unit, Criminal Investigation (Reskrim) unit, Intelligence unit), which came from the Precinct Police station of Bima City, Precinct Police station of Bima, Precinct Police station of Dompu; were mustered to the harbor to disperse the protest. In the incident, three people were killed by gunfire, i.e.: Arif Rahman (Male, 19) Saiful, (male, 17) and Syarifuddin (male, 46). From the above cases in point, they reflect the shortcoming of the Police to guarantee the freedom to assemble peacefully, which LGBT groups put up with the nuisance from radical Islamic groups. On the other side, excessive force committed by the Police tended to violate the procedure of internal standard of the Police in handling protest or demonstration.
Besides, there has not any mechanism of legal accountability (responsibility) against member of the Police that had violated procedure, except for internal mechanism that merely offers disciplinary or administrative punishment. Right to freedom of association: 8. As mentioned, the Constitution of Indonesia has guaranteed the right to freedom to associate, to assemble and to express opinions (Article 28 E). Also, there are some stipulations that regulate freedom to associate for journalists, that is to say the Law No. 40/1999 on Press, it is stated that a journalist is free to choose his association of journalism 6. In addition, the Law No.21 of 2000 on Labors Union guarantees that each worker/labor has the right to form and to become member of worker union/labor union, and a labor union is formed by at least 10 labors. 7 Essentially, the legal framework available for organizations that work in social field in Indonesia is divided in two forms. For non-membership organization, it provides a form of legal entity as Foundation, which is regulated via law on Foundation. While, for membership-based organization, it provides a form of legal entity of Association, which is still regulated in an ancient legislation Stb. 1870-64 on Legal Status of Association (Rechtpersoonlijkheid van Verenegingen). In its progress, New Order regime enacted law No. 8 of 1985 on Civil Society Organization (abbreviated in Indonesian: Ormas). The Law was the creation of New Order regime that intended to control the dynamic of Civil Society Organizations in Indonesia. The form of Ormas itself is a form that actually does not belong in the legal framework of Indonesia, but it was imposed according to the interest of the New Order regime to apply the concept of sole principle of "Pancasila" for every organization. The concept of single coordinating institution was intended to localize a number of groups that considered as similar into one "authorized" forum, therefore they shall be easy to control, since in a while there shall be only one forum for each type of group. Besides, Law on Civil Society Organization (Ormas) also contains threat of repressive freeze and dispersal without requiring a fair and impartial court case process. Law on Civil Society Organization or its explanation does not specify rigidly on Civil Society Organization (CSO), but it is regulated more specifically inside the Instruction of 6 Article 7 number (5) Law No. 40/1999 7 Article 5 line 1 and 2 Law No. 21 of 2000
Home Minister No. 8 of 1990, which also comprises CSO as part of Ormas. The Instruction states that Civil Society Organization (CSO) is:... organization/institution which is formed by society of Citizens of the Republic Indonesia voluntarily on the will of their own and interested in and work in certain field of activity, which is determined by the organization/institution as an embodiment of society s participation in the effort of improving living standards and people s welfare, which focusing on voluntary dedication. This Instruction also regulates single principle that must be obeyed; such organizations can be established based on interest, hobby and profession. In addition to emphasizing that such organization is a nonprofit or voluntary, the Instruction also only acknowledges right of an organization to conduct certain activities, such as meeting, workshop, seminar, and other meetings; organize education activity and skill training; commit community service in the form of charity and the like. There are two regulations that can be applied for organization establishment, i.e.: regulation on Organization in the Form of Association, which is ruled in Stb.1870-64 on Associations with Legal Status (Rechtpersoonlijkheid van Verenegingen), and Organization in the Form of Foundation, which is regulated in Law No. 16 of 2011. In Stb.1879-64 the requirements to be fulfilled are relatively simple. i.e.: Statute and other rules that contain purposes, basic principles, scope of works and rules of work (Article 2). The Government, in particular, Ministry of Law and Human Rights, shall only check whether the statute or other rules of the association do not threaten or harm public interest. If in fact a stipulation is found as threatening or harming public interest, the Government can execute refusal of acknowledgement that must be conducted in written along with the reasons. The Government cannot arbitrarily disperse an Organization in the Form of Association. The dispersion can only be executed by the Government if there is a Court verdict (Article 6) Regulation for Organization in the form of Foundation only requires three material requirements that must be fulfilled, i.e.: 1) separation of assets; 2) statement of purposes; 3) statement/structure of Organization, and authentic statute. In Indonesia, mostly civil society organizations are established based on legal status of Foundation or Association. 9. Law No. 8 of 1985 on Civil Society Organization provides direct authorization to the Government to freeze and disperse any civil society organization without going through trial (Article 14). The Government has the authority to disperse a civil society organization if it professes, develops and propagates communism/marxism-leninism and other ideologies that contradicted with Pancasila (Article 16). The Government can freeze up the management of civil society organization if it conducts activity that disturbing
public security and interest, and receives foreign aid without Government s approval and provide assistance to foreign party that detrimental to the interests of nation and state (Article 13). After that, public security and interest are defined in the Government Regulation No.18 of 1986, Article 19 states, among others, (a) propagating hatred among tribes, religions, races and groups. (b) Dividing unity and totality of the nation (c) activity that can disturb political and security stabilities. From its historical perspective, Law on CSO was utilized for political interest of the New Order regime and for avoiding the occurrence of criticism and opposition, so as to maintain political stability. Therefore, various elements of civil society urge the Government /House of Representative to revoke/annul this legislation. In addition, the law also has never been applied on civil society organizations that committed violence and propagate hostility or hate speech based on religion, particularly violence that had been imposed against minority groups such as Ahmadiyah Congregation, and LGBT groups. 14. In the last few years, one of religious organizations that frequently suffered violence acts is the Organization of Indonesian Ahmadiyah Congregation (Jamaah Ahmadiyah Indonesia). The organization of Jamaah Ahmadiyah Indonesia had been authorized by the Minister of Justice (Minister of Law and Human Rights) R.I No. JA/5/23/13 of 13 March 1953, and registered in the Supplemental State Gazette No.26 of March 31, 1953. The organization repeatedly faced various violence acts and threats of dispersion from other civil society organizations such as Front of Islamic Defender (FPI) and even from the Organization of Indonesian Ulema Council (MUI). In several regions in Indonesia, many Regional Regulations have been enacted to freeze up the organization s activities. By the end of 2011, there were 23 regional regulations and a National legislation, (i.e.; Joint Decree of 3 Ministries on the prohibition of Ahmadiyah congregation s activity. Therefore, although the right to freedom to associate and to assemble is guaranteed in the Constitution of Indonesia, however in practice, those rights still cannot be enjoyed by minority groups such as LGBT groups and Ahmadiyah congregation in Indonesia.