Charges of 'problematic' NGOs must be proven

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.