FPI and the limits of freedom of association

There have been numerous voices demanding the banning of the Islam Defenders Front (FPI) in society recently. Despite many allegations of crime conducted by this mass organization, from an institutional aspect, it appears that the human rights law is working on a paradox of tolerance to inherent intolerance.

On the one hand, the law acknowledges the right and freedom to create an association and on the other hand, there are also possible interferences by the government upon this freedom.

This article attempts to scrutinize some legal justifications in international human rights law on how the government could conduct legitimate interferences on the freedom of association.

First, it is worth mentioning that freedom of association is not limitless legally speaking. In Article 22 paragraph 2 of the International Covenant on Civil and Political Rights (ICCPR), the restriction on the right to freedom of association may be placed within two criteria; prescribed by law and necessary in a democratic society. In implementing these two criteria, the government should take into account the general considerations of the limitation clause interpretation and the principle of proportionality and non-discrimination.

However, these restriction criteria are not always easy to implement. Despite the fact that there is a room of margin of appreciation left to the government, human rights discourse in public regarding the restriction criteria are important indeed to enhance the human rights-based paradigm.

It is therefore important for us to initially interpret the two criteria of restriction. Here, I mainly base the interpretation on the finding of a group of 31 distinguished international law experts in the examination of the limitation and derogation in the ICCPR, which is known as the Siracusa Principle 1984.

First, prescribe by law means that “no limitation on the exercise of human rights shall be made unless provided for by national law of general application which is consistent with the Covenant and is in force at the time the limitation is applied.”

In relation to this, the government could actually legally delimit the freedom of association under the 1985 Civil Organization Law. It is thus the duty of the government to actively control and manage the establishment and engagement of an organization. Moreover, as the principle furthers that through this law, “adequate safeguards and effective remedies against illegal or abusive imposition or application of limitations on human rights” are also recognized.

Second, democratic society refers to “a society which recognizes respects and protects the human rights set forth in the Charter of the United Nations and the Universal Declaration of Human Rights.”

Nonetheless, I am of the opinion that such interpretation is still very broad.

Article 22 paragraph 2 of the ICCPR, however, discerns the term democratic society into several important — and relevant — clauses: (1) public order (ordre public), could be interpreted “as the sum of rules which ensure the functioning of society or the set of fundamental principles on which society is founded.

Respect for human rights is part of public order [ordre public].” (2) public safety refers to “the danger to the safety of persons, to their life or physical integrity or serious damage to their property.

The need to protect public safety can justify limitations provided by law. It cannot be used for imposing vague or arbitrary limitations and may only be invoked when there exists adequate safeguards and effective remedies against abuse.” (3) national security refers to the territorial integrity of a state as a whole, thus it “cannot be invoked as a reason for imposing limitations to prevent merely local or relatively isolated threats to law and order.” and (4) the protection of the rights and freedoms of others.

This means that the government has a legitimate duty to delimit the freedom of association if such freedom is in conflict with others’ human rights.

Having interpreted the limitation clause stated in the ICCPR, we should now be able to draw a nexus between the program or activities of a mass or civil organization, and in this case the FPI, and the applicability of legitimate limitations that could be exercised by the government.

If the risk of disturbance or damage in either public order, public safety, national security or the protection of the rights and freedom of others is well-founded by any state’s organ (for example, through fact finding in a judicial decision), it is by no way that the government acts ultra vires in banning the FPI.

In sum, a democratic society is built upon pluralism, tolerance and broadmindedness. And it is the (legal) duty of the state to diminish all the “anti-democratic activity” organizations in society.(source:thejakartapost.com)

Harison Citrawan,( The writer is a law faculty graduate from Rijksuniversiteit Groningen, the Netherlands.)


Find It