Ambiguous Deliberation

TEMPO.CO, Jakarta - The House of Representatives (DPR) has finally passed Government Regulation in Lieu of Law (Perpu) No. 2/2017 into law despite widespread objection from civil society organization. This only happened because several political parties have taken an ambiguous stance on passing the law: they accepted it, whilst at the same time, asked for revisions on several articles. 

This duplicity was shown by the Democrat Party, the National Awakening Party (PKB) and the United Development Party (PPP). Other parties supporting the government-the Indonesian Democratic Party of Struggle (PDI-P), NasDem, Golkar and Hanura-accepted the bill in full. The Gerindra Party, the Justice and Prosperity Party (PKS) and the National Mandate Party (PAN) explicitly rejected it.

The proposals from several parties for revisions seem little more than empty words. According to the law, the only options for responding to the perpu are to accept it or reject it. In the voting, 314 DPR members accepted it and 131 rejected it, and thus the perpu was passed into law. If they were consistent with their statements, the Democrat Party, the PKB and the PPP should immediately draw up revisions to the law.

This perpu, that is now a law, is clearly at odds with the principle of freedom of assembly and human rights guaranteed by the Constitution. When it was issued, the government gave the impression that its sole purpose was to disband Hizbut Tahrir Indonesia, which was seen as an organization that challenged the state philosophy Pancasila and the principles of democracy. Hizbut Tahrir has since dissolved because this perpu removed the provision to ban organizations through the courts as laid down in the previous Law No. 17/2013 on Mass Organizations.

Instead of using the court, now the Minister of Justice and Human Rights can revoke the legal entity status of any mass organization whenever the government wishes to. Therefore, this regulation is very dangerous and could lead to arbitrary actions. The legal principle of contrarius actus-the official who issues the ruling also has the right to revoke it-is not relevant in this case because it views the granting of legal entity status as merely a formality. Indeed, the government could revoke any organization's legal status, but banning them entirely should be a different matter.

The penalties laid down in the perpu also breach human rights. A member or leader of a mass organization can be jailed because of wrongdoing by the organization. The punishments are severe: jail sentences of between five and 20 years.

Because of the large number of flaws, the Mass Organization Perpu should not have been passed into law. Many people have asked the Constitutional Court for a judicial review. But after being passed by the DPR, these requests will automatically be rejected by the Court because there is no longer a perpu to rule on. Now, appellants should ask for a material review of the Law on Mass Organizations once it has been enacted.

These efforts for a material review are very important for restoring the right to freedom of assembly. The previous provision in Law No. 17/2013 was sufficient since it stated that the banning of organizations has to be decided through the courts, and the judges' rulings could be challenged until the final appeal stage. This seemingly long-winded legal process is a consequence of democratic principles.

A simpler way would be to copy the mechanism of banning political parties, namely through the Constitutional Court. This is less complex but still involves the judiciary. This type of solution should have been considered by the duplicitous parties opposing the perpu. The DPR could pass a simpler mass organizations law that does not breach the Constitution.