Charges of 'problematic' NGOs must be proven

The government will take stern action against 32 non- governmental organizations (NGOs) it considers "problematic" and says that it will subject all NGOs, 8,000 in total, to the 1985 law on mass organizations. Yusril Ihza Mahendra argues that NGOs are not subject to the law.

Question: What do you think about the government's allegation that some NGOs are problematic?

Answer: The word "problematic" is not a legal term. It's a political term whose meaning is unclear. If NGOs are problematic, in what way are they? Up till now, there is no clear explanation about that. Whereas, in fact, such an explanation is very important, because it will be able to clarify the problem from a legal point of view.

Q: The Coordinating Minister for Political Affairs and Security, Soesilo Soedarman, said that some of the 32 NGOs had failed to specify Pancasila as their ideology, while others had engaged in illegal activities ...

A: We have to prove it first. It's okay if the government has such an assumption, but they have to prove it before the law. To do so, they need evidence to support their charges that NGOs have engaged in illegal activities. Once they get the evidence, they can label the people behind the NGO -- not the NGO -- as suspects.

NGOs are mostly established in the form of foundations. So, once an NGO has a legal problem, it's not the foundation that is brought to court, but the people responsible for it. A foundation is abstract. You cannot bring an abstract thing to court, can you?

Besides, the government has the right to warn an NGO if they suspect it of conducting illegal activities. It's more in line with the legal procedure. There's no need to dissolve it, either. For example, you cannot close down the police department simply because one of its officers happened to kill a crime suspect.

Q: So, do you think what Soesilo did -- announcing that there are some 32 NGOs with problems -- was not toeing the line in terms of legal procedure?

A: Yes. But maybe the government was making a political effort in handling what they called "problematic" NGOs. Here, what they did was put the suspected NGOs in a difficult corner. They forget that the NGOs are capable of doing the same thing. It's not difficult for the NGOs to do so. They can use the media network they have, especially the NGOs abroad, or the Internet.

If Soesilo made the statement in his own room, for example, no one will pay attention to it. In fact, he said it at a news conference. So, in my opinion, it would be better if the government didn't commit a political offense and took legal steps instead. It would increase the image of Indonesia as a legal country as well.

Q: Does it mean that the announcement was self-damaging to the government?

A: Yes, you could say that. Politically, the announcement has made the government less popular. Why didn't they take legal steps?

Q: Does the government have the right to judge that a particular NGO has broken certain rules?

A: As I said, NGOs are mostly established in the form of foundations. As a foundation, an NGO is registered at the Ministry of Justice as a legal body. It's different from a mass organization, which is registered in the Ministry of Home Affairs. To establish a foundation, you don't need members. What you have to do is go to a notary, then register your newly formed foundation with the Ministry of Justice and report it to the local court to let them know where your foundation is located. That's all.

The rule that clearly requires a certain organization to specify Pancasila as its ideology is the 1985 law on mass organizations. This doesn't apply to foundations. Up till now, there is no specific regulation for foundations. Nevertheless, after 1985, every notary document on foundation establishment mentions Pancasila as the foundation's ideology.

As far as I know, the only NGO that refuses to specify Pancasila as its ideology is the Democratic People's Party.

Q: Do you think that there is a need for a ruling to regulate foundations?

A: Yes, I think so. Up to the present time, we still use the Civil Code we inherited from the Dutch colonial government to deal with foundations.

Q: What makes a foundation different from a mass organization?

A: Its mass membership. The establishment of a mass organization is based on its members. The board of an organization is elected by its members, usually through a general assembly, while that of a foundation can simply be appointed by the previous chairman.

The problem lies with those NGOs having no legal bodies. They are mostly formed incidentally as a spontaneous reaction to an issue. They are not formally registered but, de facto, they exist. Unfortunately, they do not always see a given case eye to eye with the government. So, prejudice is rife.

Q: What is the best way to eliminate such prejudice?

A: Open dialogue between the two parties: the government and the NGOs. The government should take the NGOs as partners, not as enemies. Do that periodically. By doing so, the NGOs can criticize what they think is not proper, while the government can explain openly what the NGOs criticize.

Q: NGOs are required by the government to report all their financial contributions they receive from abroad. Your comments?

A: Once there was a ministerial decree from the then minister of religious affairs, Alamsjah, who stated that religious organizations were to report any foreign financial contributions they received. Catholic groups refused to do it at that time, for according to them, the state should not interfere in the church's affairs.

But, basically, there is no legal obligation for non-religious organizations to do so. Therefore, many NGOs do not report their financial contributions to the government. What the government is afraid of is probably that such contributions are often motivated by a supporter's political interests. But, likewise, the government cannot deny either that they are receiving foreign financial aid and that they are not completely free from any political interests.

Q: Do you think the 1985 law on mass organizations stipulates that NGOs should register themselves to the Ministry of Home Affairs?

Q: There is no such regulation. I think what is more important is to make it clear to those NGOs having no legal basis to look for one. It's up to them whether they want to opt to become a foundation or a mass organization. (swa)

Dr. Yusril Ihza Mahendra is an expert on state administration law and a lecturer at the University of Indonesia.