Indonesia

Last updated: 1 October 2019

Update

There are reports of repression by Indonesian security forces against protesters and activists in Papua, where serious civil unrest over discrimination, racism, and self-determination efforts has been taking place since mid-August 2019. An additional 6,000 police and military personnel were flown to Papua to reinforce an already heavy military presence in the region, while the government cut off internet access in the region’s two provinces on August 22 and has long restricted access to Papua for foreign journalists and rights monitors. The government maintains that the internet blackout was necessary due to the “the spread of hoax information, lies, expressions of hatred, [and] provocations related to Papuan issues.”

Potentially more than 40 Papuans have died during the recent unrest, including during a protest on August 28 in which uniformed police shot live ammunition into a crowd of Papuan protesters. Multiple activists have been arrested for flying or traveling with the Papuan Morning Star flag. Indonesian police have further charged Veronica Koman, a prominent Indonesian human rights lawyer, with “spreading fake news and provoking unrest” regarding the recent protests under the country’s controversial electronic information and transactions law. Papua and West Papua provinces, the resource-rich western part of the island of New Guinea, were a Dutch colony and incorporated into Indonesia after a widely criticised UN-backed referendum in 1969. Reports have emerged that supporters of West Papuan self-determination in other Pacific countries, such as Fiji, the Solomon Islands, and Vanuatu have come under pressure and had their free expression restricted by local authorities responding to diplomatic ties with Indonesia.

Introduction

Civil society as an academic discourse is considerably new in Indonesia but the concept of having organized groups that strive for social and/or political purposes has been well recognized in Indonesia since the colonial time as a part of the independence movement. The struggle for independence started with the establishment of organizations, based on regions, religions and labor unions. The importance of such organizations continued after the nation’s declaration of independence on August 17, 1945.

From 1966 to 1998, however, civil society organizations (CSOs) were restricted by the authoritarian Suharto government. Freedom of association and freedom of expression were constrained by the regulatory framework. Law No. 8 of 1985 regarding Societal Organizations (in Indonesian: Organisasi Kemasyarakatan, often shortened as “Ormas” and often loosely translated as “Mass Organizations”) was set up by the Suharto administration to control civil society, together with other laws in a package known as the “Political Law Package of 1985.” The concept of “societal organization” introduced by this law was designed to create one organizational status for all types of interests – activity, profession, function or religion – so that it would be easier for the regime to control them. Given its background, the Law on Societal Organizations has strong controlling aspects. Based on the law, the government may dissolve a societal organization that conducts any activities that disturb security and order; receives donations from foreign institutions without the Government’s consent; or provides assistance to foreign institutions that may “harm the nation.” Furthermore, extra-legal measures, such as kidnappings and torture, targeting those who actively challenged the government put CSOs at great risk. [1] Few CSOs were active during that period.

The situation changed significantly after Suharto stepped down in May 1998. The freedoms of association and expression are now better protected. As Indonesia underwent constitutional amendment in 1999-2002, a set of human rights provisions mirroring the Universal Declaration of Human Rights was inserted in the second amendment in August 2000. Further, on October 28, 2005, Indonesia ratified the International Covenant on Civil and Political Rights (ICCPR), which provides clear protection of fundamental freedoms. Since 1998, many important reforms have been introduced and supported by civil society, including the constitutional amendment of 1999-2002 and the ratification of ICCPR. After 1998, CSOs have also entered another phase in their relationship with the state. Beyond the ‘traditional’ way of being in opposition to the state, some CSOs work together with certain state institutions, such as the Supreme Court and the police, in conducting institutional reform projects.

Apart from the legal basis regarding the freedom of association and the freedom of expression that provides space for CSO activities, the status of legal entities or organizational forms for CSOs are regulated in different laws. There are two types of organizational forms for CSOs, namely the Association (Perkumpulan), which is membership-based, and the Foundation (Yayasan), which is not membership-based.

In addition, there is now Law No. 17 of 2013 on Societal Organizations (Organisasi Kemasyarakatan) replacing Law No. 8 of 1985 on Societal Organizations. Law No. 17 was enacted on July 22, 2013 and is intended to reinforce the role of the Ministry of Home Affairs to control CSOs, as this role was weakening after 1998. This Law regulates “all organizations founded and formed by the society voluntarily on the basis of shared aspiration, will, needs, interest, activity and purposes in order to participate in the development with the intention to achieve the objective of the Unitary State of the Republic of Indonesia based on the Pancasila” (Article 1). Both Foundations and Associations fall under the category of “societal organizations with legal entity status,” while all other CSOs are categorized as societal organizations without legal entity status.” Law No. 17 of 2013 then stipulates a set of obligations and prohibitions for societal organizations, such as prohibition from propagating an ideology that conflicts with state principles (Pancasila) and from conducting activities that disrupt public order and well-being. Violations of such provisions might lead to the dissolution of the CSO. Furthermore, this Law provides discriminatory and excessive bureaucratic controls over international CSOs.

Two petitions were made by CSOs to the Constitutional Court to review the law in the fall of 2013. Both cases were decided on December 23, 2014. The Court ruled that the law is not too excessive in nature in light of Article 28J of the Constitution.  However, some provisions in the Law would harm the principle of freedom of association. They include provisions regarding:

  • the goals of societal organizations;
  • the types of organizations according to the number of members and locations of the organizations and the registration procedures for such organizations;
  • the procedure to select personnel for organizational structures;
  • the rights and obligations of the members of organizations;
  • the government’s role to empower societal organizations; and
  • the prohibition on the use of the Indonesian flag and symbol for organizations’ flags and symbols. (For more information on the Court’s ruling, please see “National Laws and Regulations Affecting Sector.”)

As some provisions were struck down, there are gaps in the law that the government still needs to address, such as which government institution will be responsible for registering societal organizations. The government has yet to address these gaps or issue any implementing regulations. Besides the Constitutional Court’s decision, another factor delaying the issuance of implementing regulations is the change of government in October 2014. The change in government led to some adjustments in the relevant ministries as well as the national development plan, which has had an impact on the government’s priorities.

[1] Amnesty International, “Indonesia: Power and Impunity: Human Rights under the New Order“, 1 September 1994, ASA 21/017/1994.

Organizational FormsAssociationsFoundationsSocietal Organizations (without legal entity status)
Registration BodyMinistry of Law and Human RightsMinistry of Law and Human RightsIt is not clear which government body is responsible for registering societal organizations. Article 8 of Law No. 17 of 2013 on Societal Organizations, which specified the registration authorities based on the geographical level of an organization, was struck down by the Constitutional Court in December 2014. The government has not provided a Government Regulation on this matter.
Approximate Number48,886 organizations registered at the Ministry of Law and Human Rights. However, these numbers do not reflect the type of the organization.48,886 organizations registered at the Ministry of Law and Human Rights. However, these numbers do not reflect the type of the organization.65,577 organizations registered at the Ministry of Home Affairs.
Barriers to EntryComplex procedures for foreign organizations seeking to operate in Indonesia.Barriers to establishment of foreign foundations, including required “safe” partnership with local foundation.Barriers to establishment of foreign foundations, including an additional requirement to refrain from activities which “disrupt the stability and the unity” of Indonesia or “disrupt diplomatic ties.”
Also, excessive bureaucratic controls for foreign foundations, including requirements on residency and minimum assets allocated for the establishment of the organization (USD1 million for a foreign legal entity and USD100,000 for a foreign individual).
Barriers to ActivitiesInsufficient legal and judicial protection for CSO human rights activists.
Establishment of GONGOs.
Insufficient legal and judicial protection for CSO human rights activists.
Establishment of GONGOs.
Insufficient legal and judicial protection for CSO human rights activists.
Establishment of GONGOs.
Barriers to Speech and/or AdvocacyNo legal barriers specifically against CSOs. Libel charges, however, have been brought against CSO activists.No legal barriers specifically against CSOs. Libel charges, however, have been brought against CSO activists.No legal barriers specifically against CSOs. Libel charges, however, have been brought against CSO activists.
Barriers to International ContactNo legal barriersForeign foundations must have “diplomatic relations” with” Indonesia.None.
Barriers to ResourcesAssociations not permitted to engage in economic activities.Foundations permitted to engage in economic activities only through corporate subsidiary.Societal organizations permitted to engage in economic activities only through corporate subsidiary..
Barriers to AssemblyAdvance notification requirement, assemblies prohibited at government sites and transport stations, and excessive criminal penalties.Advance notification requirement, assemblies prohibited at government sites and transport stations, and excessive criminal penalties.Advance notification requirement, assemblies prohibited at government sites and transport stations, and excessive criminal penalties.
Population255,993,674 (July 2015 est.)
CapitalJakarta
Type of GovernmentRepublic
Life Expectancy at BirthMale: 69.85 years;
Female: 75.17 years (2015 est.)
Literacy RateMale: 96.3%
Female: 91.5% (2015 est.)
Religious GroupsMuslim 87.2%, Christian 7%, Roman Catholic 2.9%, Hindu 1.7%, other 0.9% (includes Buddhist and Confucian), unspecified 0.4% (2010 est.)
Ethnic GroupsJavanese 40.1%, Sundanese 15.5%, Malay 3.7%, Batak 3.6%, Madurese 3%, Betawi 2.9%, Minangkabau 2.7%, Buginese 2.7%, Bantenese 2%, Banjarese 1.7%, Balinese 1.7%, Acehnese 1.4%, Dayak 1.4%, Sasak 1.3%, Chinese 1.2%, other 15% (2010 est.)
GDP per capita$10,400 (2014 est.)

Source: The World Factbook. Washington, DC: Central Intelligence Agency, 2015.

Ranking BodyRankRanking Scale
(best – worst possible)
UN Human Development Index113 (2016)1 – 182
World Bank Rule of Law Index13(2016)100 – 0
World Bank Voice & Accountability Index18 (2016)100 – 0
Transparency International90 (2016)1 – 168
Freedom House: Freedom in the WorldStatus: Partly Free
Political Rights: 2
Civil Liberties: 4 (2018)
Free/Partly Free/Not Free
1 – 7
1 – 7
Foreign Policy: Fragile States Index94 (2017)177 – 1
0-10

International and Regional Human Rights Agreements

Key International AgreementsRatification*Year
International Covenant on Civil and Political Rights (ICCPR)Yes2006
Optional Protocol to ICCPR (ICCPR-OP1)No
International Covenant on Economic, Social, and Cultural Rights (ICESCR)Yes2006
Optional Protocol to ICESCR (OP-ICESCR)No
International Convention on the Elimination of All Forms of Racial Discrimination (ICERD)Yes1999
Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW)Yes1984
Optional Protocol to the Convention on the Elimination of Discrimination Against WomenNo2000
Convention on the Rights of the Child (CRC)Yes1990
International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families (ICRMW)No
Convention on the Rights of Persons with Disabilities (CRPD)Yes

* Category includes ratification, accession, or succession to the treaty

Constitutional Framework

The prevailing Constitution of Indonesia is the 1945 Constitution, which was amended in 1999-2002. The second amendment to the 1945 Constitution guarantees the freedom of association (Article 28) and freedom of expression (Article 28E section (3)). These provisions read as follows:

Article 28. The liberties of association and assembly, the freedom of thought expressed verbally or in writing and similar rights, are to be determined by law.

Article 28E.

  1. Each person is free to worship and to practice the religion of his choice, to choose education and schooling, his occupation, his nationality, his residency in the territory of the country that he shall be able to leave and to which he shall have the right to return.
  2. Each person has the right to be free in his convictions, to assert his thoughts and tenets, in accordance with his conscience.
  3. Each person has the right to freely associate, assemble, and express his opinions.

National Laws and Regulations Affecting Sector

Relevant national-level laws and regulations affecting civil society include:

Constitutional Review of Law No. 17 on Societal Organizations
In September 2013, a number of CSOs submitted a petition to the Constitutional Court to review Law No. 17 on Societal Organizations (Case No. 3/PUU-XII/2014, hereinafter “Decision 3”). In November 2013, Muhammadiyah Association, one of the two biggest Muslim organizations in Indonesia, submitted another petition to the Constitutional Court on different articles (Case No. 82/PUU-XI/2013, hereinafter “Decision 82). Both cases were decided on December 23, 2014.

In essence, the Court held that Indonesia’s Constitution, Article 28J, provides that all human rights provisions shall be implemented in relation with the duty to accept the restrictions established by law for the purpose of guaranteeing the recognition and respect of the rights and freedoms of others. The Court viewed the Law on Societal Organizations as not too excessive in light of Article 28J and therefore deemed it constitutional.

However, there are provisions in the Law that are so detailed that they would harm the principle of the freedom of association. They include provisions regarding the goals of societal organizations; types of organizations according to the number of members and locations of the organizations and the registration procedures for such organizations; the method to select personnel for the organization structure; the rights and obligations of the members of organizations; the government’s role to empower societal organizations; and the prohibition on using the Indonesian flag and symbol for the organizations’ flags and symbols. The details on these provisions are as follows:

1.           On Article 5 regarding the 8 goals of Societal Organizations, the Court ruled that the 8 goals must be understood as cumulative and/or alternative (putting “and/or” instead of “and”). In other words, societal organizations do not have to pursue all 8 goals. According to the Indonesian Constitutional Court, this provision is “conditionally unconstitutional,” which means it is constitutional as long as the provision is interpreted the way the Court suggests. [Decision 82]

2.            Article 8 on the types of societal organizations based on the administrative level of government (national, provincial, and district) is unconstitutional because it limits the work of societal organizations and thus violates the principle of freedom of association. The Court held that societal organizations can choose whether or not to register with the government. If a societal organization opts to register, it can register at any level it prefers. The level of registration should only affect services that the government provides to CSOs. An organization might not be able to enjoy certain services because of the place of registration, but the government cannot declare that an organization’s activities are illegal based on the level or location of registration. [Decision 82]

3.           Because the provision on the typology of societal organizations is unconstitutional, related provisions are also unconstitutional: Article 16(3), Article 17, and Article 18 on the registration procedures of and data collection on societal organizations without legal entity status; and Article 23, Article 24, and Article 25 on the membership requirements for each type of societal organization. [Decision 82]

4.           Article 29(1) on the method to select the personnel for the organizational structures is conditionally unconstitutional. The Article provided that selection can only be done by “consultation and unanimity.” To be constitutional, the Article must provide that the selection shall be done “through consultation and unanimity (musyawarah dan mufakat) or through voting (dengan suara terbanyak).” [Decision 3]

5.           Article 34 providing that “the rights and obligations of members are equal and shall be regulated in the articles of associations” is unconstitutional as this provision would harm the freedom of societal organizations to determine the content of their articles of associations. [Decision 82]

6.           Article 40 on the government’s role to empower societal organizations in order to increase their performance and guard their sustainability is unconstitutional as it can be an entry point for the government to intervene in societal organizations and to set up “red-plated” organizations (organizations created by the government). [Decision 82]

7.           Article 59 on the prohibition of societal organizations using flags or symbols similar to the flag and symbol of Indonesia as unconstitutional.

As some provisions of the Law were struck down, the government needs to address current gaps in the law, such as which government institution will provide the registration certificate for societal organizations. The government has not yet issued any implementing regulations.

[2] Article 1653 of Chapter 9 of the Third Book of the Civil Code is generally regarded as the source of Indonesia’s non-profit legal forms — the foundation and association.

Pending NGO Legislative / Regulatory Initiatives

1. In March 2015 Indonesia’s National Counterterrorism Agency (BNPT) urged the government to revise laws governing freedom of assembly and speech in a bid to undercut supporters of the extremist group Islamic State (IS). The Inspector General, Arief Dharmawan, cited the 1998 Law on Free Speech and 2013 Law on Mass Organization as laws that should be revised. Specifically, he said, “We have stated that the mass organizations law must be revised and expanded because it only regulates the registered mass organizations… What about those unregistered groups, how do we regulate how they should be disbanded? We need a clear legal basis… Can you imagine if pro-IS people made a speech at a public event like the Car Free Day and then declared that the government were infidels and killing them should be justified?”

2. The Perpua Ormas is a “Government Regulation in Lieu of Law” that amended the Ormas Law (Law on Mass Organizations). The Perpua Ormas contains one major change to the Ormas Law: once three Ministers decide that a CSO, NGO, association or organization is a “threat to the government” or that it is “anti-Pancasila”, the organization is immediately dissolved after which the now dissolved organization can challenge that decision in court. In contrast, the Ormas Law provided groups the ability to challenge a dissolution order in court before being dissolved. CSOs are concerned that the Perpua Ormas gives the government too much power, violates both international human rights norms and Indonesia’s Constitution, and may be used in the future to dissolve CSOs that are critical of government policies or officials.

3. In February 2018, Home Minister Tjahjo Kumolo voided a regulation aimed at screening research projects that were deemed to have “negative impacts” on the country in an about-face that came only hours after he had defended the regulation. Issued on Janury 17, 2018, Home Ministry Regulation No. 3/2018 on the research information letter (SKP) allowed authorities to assess the “potential negative impacts” of a particular research project, a mechanism that resembled the Environmental Impact Analysis (Amdal) requirement for businesses that could harm the environment. The regulation obliged researchers – individuals or groups – to report their research results to the Home Ministry, replacing a 2014 regulation that only obliged researchers to report to local administration officials, which would then issue a research recommendation. Academics were not involved in drafting the regulation, nor had the Home Ministry disseminated the controversial regulation among academia. Despite that the regulation is reportedly voided, there was still some speculation among civil society about its status in March 2018 as well as concern about the way the regulation would chill research projects if it is indeed still pending.

Other pending legislative initiatives include the following:

  • The Bill regarding Associations was initiated by the Ministry of Law and Human Rights and is backed by CSOs and scholars. The Bill is on the list of the National Legislation Program of 2010-2014, but the House of Representatives and the Government have not set the date for deliberation. [In Indonesia bills are deliberated by the House of Representatives and the government mutually to reach “joint approval.” The deliberation is based on the five-year National Legislation Program set up in the beginning of the House members’ terms of office. The actual deliberation date would be decided each year in the Annual Legislation Program based on the long list of bills on the five-year program.]
  • The States Secrecy Bill has since 2009 been discussed in parliament, and in late 2014 it was reportedly again being discussed. The State Secrecy Bill is seen to pose a threat to civil liberties and the freedom of information for the following reasons: first, the term state secret is so broadly defined that it covers information, objects and activities; second, state secrets are largely under the management and supervision of executive bodies, which causes concern about the difficulties that parliament will face in ensuring the checks and balances of executive bodies; and, third, there is concern about the bill being manipulated as an ‘instrument’ to criminalize the public, primarily the mass media.
  • The Bill on Civil Society Organizations has been prepared to replace the Law on Societal Organizations. The Bill was presented by the Ministry of Home Affairs to the House of Representatives Committee, but the Committee, backed by CSOs, rejected the proposal. Nonetheless, as the new house members started their work in 2009, the Bill has been placed back on the list of the National Legislation Program of 2010-2014, although the starting date for its deliberation has not been decided.
  • The Bill on the Protection of Human Rights Defenders was proposed by a coalition of CSOs working on human rights issues and adopted by the House of Representatives as a House-initiated Bill. It has been put in the National Legislation Program of 2010-2014, but the deliberation date has not been determined.
  • The Ministry of Law and Human Rights is preparing the draft Government Regulation (Peraturan Pemerintah) on the Implementation of Social Welfare (Penyelenggaraan Kesejahteraan Sosial). The draft Government Regulation is intended to help implement Law No. 11 of 2009 on Social Welfare (Kesejahteraan Sosial). In the draft Regulation, CSOs that engage in social welfare activity are required to register with the Ministry of Social Affairs. Foreign CSOs are also required to obtain permits from the Minister of Foreign Affairs before applying to the Ministry of Social Affairs.
  • In order to implement Law No. 17 of 2013 on Mass Organizations (the Ormas Law, enacted in July 2013), the Government of Indonesia must issue six sets of implementing regulations.The government must also do so in light of the recent Constitutional Court decision regarding certain provisions of the law. None of the six regulations have yet been issued. They include:
    • On the Registration of Societal Organizations without Legal Entity Status;
    • On the Empowerment of the Societal Organizations;
    • On the Procedure to Issue Permit for Societal Organizations Founded by Foreigners;
    • On the information management system;
    • On the procedure to supervise societal organizations; and
    • On the procedure to sanction Societal Organizations.
  • In March 2015 Indonesia’s National Counterterrorism Agency (BNPT) urged the government to revise laws governing freedom of assembly and speech in a bid to undercut supporters of the extremist group Islamic State (IS). The Inspector General cited the 1998 Law on Free Speech and the 2013 Law on Societal Organization as laws that should be revised.

Organizational Forms

There are two types of legal entities for CSOs, namely the association and foundation.
Foundations are regulated by Law No. 16 of 2001, as amended by Law No. 28 of 2004 (“Law on Foundation”). A foundation is defined as a non-membership legal entity, established based on the separation of assets, and intended as a vehicle for attaining certain purposes in the social, religious, or humanitarian fields.

Associations are governed by the Dutch Colonial Government inherited law that is still valid, namely Staatsblad 1870-64 (Dutch Colonial State Gazette) on Associations with Legal Person Status. There are two types of associations in Indonesia: (1) incorporated associations, which possess legal personality; and (2) ordinary associations, which do not. An important characteristic of an association that is distinct from a foundation is membership. An association is a member-based organization, whereas a foundation does not have members but is required by the Law on Foundations to have three organs: the Governing Board (Badan Pembina), Supervisory Board (Badan Pengawas), and Executive Board (Badan Pengurus).

Law No. 17 of 2013 on Societal Organizations provides that there are two types of CSOs, namely (1) the ones with legal entity, which consist of Foundations and Associations; and (2) societal organizations without legal entity status, which include any organizations set up by civil society. The registration status as a Societal Organization is obtained automatically by a Foundation or an Association when the legal entity status is granted by the Ministry of Law and Human Rights, so that they are not required to undertake additional registration at the Ministry of Home Affairs. However, because of the status of Societal Organizations, Foundations and Associations now have an additional layer of operational guidelines and are subject to the close supervision of the Ministry of Home Affairs.

Public Benefit Status

Both foundations and associations may be public-benefit organizations. Public benefit status, however, does not entail any tax or other benefits.

The Law on Foundations provides that “social” foundations might operate to benefit only their stakeholders, which would be inconsistent with public benefit status. The broad term of “social” in this definition might cause a problem in practice, because it is applicable to any not-for-profit activity. Consequently, there is no overall requirement that a foundation must provide public benefit, as opposed to serving only its stakeholders. It depends on the foundation’s statutory purposes.

Based on Staatsblad 1870-64, associations can be public benefit or mutual benefit organizations.

Barriers to Entry

Registration requirements

Societal Organizations stipulates a category of “societal organizations without legal entity status.” Although this might seem to provide more space for CSOs, this category is intended for the government to be able to control any type of CSO.

Law on Foundations and Staatsblad 1870-64 require registration in order for foundations and associations to obtain legal entity status. Registration here requires the deed of establishment to be in the form of a notarial deed and to be registered at the Ministry of Law and Human Rights. If the registration is accepted by the Ministry, the deed of establishment will be published in the Supplemental to the State Gazette (Tambahan Berita Negara).

Any natural person (not including a minor) or a legal entity can found a foundation or association. The Law on Foundations provides that one person or more can found a foundation. There is no specific rule for associations, but Law No. 17 of 2013 regulates the societal organizations (which include associations) must be set up by minimum 3 persons, except for foundations. There are no minimum assets required to found a foundation or an association.

To register a foundation or an association, the notary must submit a request to the Director of General Administration of the Ministry of Law and Human Rights along with two copies of the Deed of Establishment with stamp duty, the foundation’s tax payer’s number (Nomor Pokok Wajib Pajak or NPWP) and the foundation’s certificate of domicile.

According to the Law on Foundations, the Ministry must respond within 30 days after the request for registration of a foundation is received. In case a confirmation from a relevant ministry/ institution is needed, the Ministry must respond within 14 days after the confirmation is received or 30 days after the request for a confirmation is submitted. The Ministry may deny a registration request for a foundation in writing on the ground that the request is not according to relevant laws and regulations. An appeal of such denial is not regulated by the Law. By contrast, the registration of associations is not regulated in detail.

In addition to the general procedure above, the Ministry also issued a Minister of Law and Human Rights Regulation No. 5 of 2014 regarding Validation of Foundations to further elaborate the procedures and requirements for securing approvals for names of foundations and their validation by the Minister. According to this regulation, all applications for the establishment of foundations will be processed electronically via the Legal Entities Administration System (Sistem Administrasi Badan Hukum or “SABH”) under the Directorate General of Law Administration. This technical regulation, however, is intended for notaries authorized to submit applications for the validation of foundations to the Minister through SABH, and is not applicable when members of the general public wish to establish a foundation.

As for CSOs without legal entity status, Law No. 17 of 2013 stipulates that such CSOs can be established by a minimum of three persons. A Registration Certificate (Surat Keterangan Terdaftar) shall be provided by the government. However, there is no clear provision regarding which authority shall provide the registration certificate because Article 8, regarding the designated registration authority based on geographical level of organization, was struck down by the Constitutional Court (Case No. 82/2013, decided in December 2014). The government has not provided a Government Regulation on this matter.

Foreign Organizations

TLaw on Foundations permits foreign citizens together with Indonesians or otherwise to establish a foundation under Indonesian law, and foreign foundations, i.e. foundations established under foreign laws, to operate in Indonesian territory, provided that the operation is in partnership with an Indonesian foundation and only in the areas of social, religion and humanity.

The Law on Foundations and relevant regulations outline a set of rules regarding foundations established by foreign individuals or entities. The Law mandates a minimum contribution to the foundation’s assets of 100 million IDR (USD 10,000). For registration, the minimum contribution must be documented, the foreign individual/entity must provide identification, and there must be a statement that the foundation will not be detrimental to the Indonesian society, nation and country. Activities must be undertaken in partnership with foundations established by Indonesian citizens/entities that have the same goal and purpose as the foreign foundation. Further, such partnership must be “safe” from a political, legal, technical and security perspective, terms which the Law does not define.

Foundations established by foreign individuals or entities must have a minimum of one Indonesian member on the executive board; that member must serve as the foundation’s chair, secretary or treasurer. In addition, all members of the executive board must be residents of Indonesia. Members of the executive board, governing board and supervisory board who are not Indonesian citizens must have work and temporary residence permits (KITAS or Kartu Izin Tinggal Sementara).

Law No. 17 of 2013 stipulates that foreign CSOs can only be set up as foundations, not associations or societal organizations without legal entity status. The Law has a special category of “societal organizations established by foreign citizens” (Chapter 13 of Law No. 17 of 2013; in this report, this category is referred to as ‘foreign CSOs’). There are three types of foreign CSOs, namely: (1) Foreign Foundations (foundations established in foreign countries), (2) Indonesian Foundations founded by foreign individuals, and (3) Indonesian Foundations founded by foreign legal entities (Article 43).

Foreign foundations are obliged to obtain Government permits, namely a principle permit and operational permit. An operational permit can only be obtained when the principle permit is granted. (Article 44) The principle permit is issued by the Ministry of Foreign Affairs based on considerations of the Permit Issuance Team, which shall be established by the Ministry of Foreign Affairs. To obtain a principle permit, the foreign foundation must fulfill minimum requirements: that it was established in a country that has diplomatic relations with Indonesia and that its governing principle, purposes and activities are not-for-profit. The permit is issued by the Ministry of Home Affairs or the local government according to the level of work of the foreign foundation only after the foreign foundation signs a written agreement with the Indonesian government regarding its scope of activities. The duration of the principle permit is three years and can be extended, while the duration of the operational permit cannot be more than the duration of the principle permit.

In addition to the regulations set forth in the Law on Foundations elaborated above, Law No. 17 of 2013 provides that Indonesian Foundations founded by foreign individuals and foreign legal entities may only be granted legal entity status by the Ministry of Law and Regulations after the Ministry obtained consideration from the Permit Issuance Team. Furthermore, Law No. 17 of 2013 states that a foreign individual founding an Indonesian foundation must have resided in Indonesia for five consecutive years and hold permanent residency (Izin Tinggal Tetap). The minimum amount of assets of the Indonesian foundation founded by foreign individuals is IDR 1 billion (USD 100,000). There are also other regulations for Indonesian foundations founded by foreign legal entities. The foreign legal entity must have operated in Indonesia for five consecutive years and the minimum amount of assets of the foundation is IDR 10 billion (USD 1 million) (Article 47). In their operations, Indonesian foundations founded by foreign individuals or foreign legal entities are obliged to have a partnership with the government and Indonesian CSOs. (Article 48).

Barriers to Operational Activity

The government does not have the right to interfere with the internal self-governance of a CSO. The Law on Foundations, however, stipulates that the organizational structure of a foundation must consist of three organs: the Governing Board (Badan Pembina), Supervisory Board (Badan Pengawas), and Executive Board (Badan Pengurus). Law No. 17 of 2013 on Societal Organizations does not provide detailed requirements on the organizational structure. It only regulates that the executive of societal organizations shall be selected based on consensus and deliberation and shall consist of minimum one chairperson, one secretary, and one treasurer. (article 29). The Law does not provide further on the different levels of organization.

The Law on Foundations requires every foundation to publish the abridged version of its annual report on an announcement board in its office. Furthermore, foundations that have received donations from the state, overseas parties, or third parties totaling 500 million Indonesian rupiah (IDR) or more, or that possess assets other than endowed assets of over 20 billion IDR, must be audited by a public accountant and have their annual report summaries published in an Indonesian-language daily newspaper. The Societal Organizations Law requires societal organizations collecting public funds to maintain financial reports according to standards of accountancy and publish them regularly (Article 38). With regard to geographical location to operate, Societal Organizations Law provides that CSOs may have organizational structure abroad and may operate in all parts of Indonesia according to relevant laws and regulations (Articles 26 and 27).

Although the law does not restrict the activities of CSOs, the government has been accused by CSOs of not providing adequate protection to CSO representatives in the face of threats and violence. A report by a Jakarta-based human rights CSO ‘Imparsial’ showed that between 2005 and 2009 the condition of human rights defenders deteriorated. There were 46 torture cases reported; 29 cases of defenders being arrested with no clear reason; and 25 cases of intimidation, threats and terror against university students, farmers, journalists and CSOs activists. [4] Therefore, Imparsial and a coalition of CSOs for the protection of human rights defenders have proposed a Bill on the Protection of Human Rights Defenders.

There are CSOs that are linked to local governments or ministries. They are usually called “red-license-plate CSOs” as government-owned cars in Indonesia have red license plates. They are allegedly created to facilitate corrupt practices and control over government-funded projects as well as to disseminate an opinion countering CSOs that criticize the government actions or policies.

[4] Camelia Pasandaran, “More Protection Needed For Human Rights Defenders: Komnas HAM,” Jakarta Globe, August 17, 2009. See Imparsial’s report in Indonesian language: Imparsial, “Laporan Kondisi Pembela Hak Asasi Manusia 2005-2009” [Report on the Condition of Human Rights Defender 2005-2009], August 2009.

Barriers to Speech / Advocacy

In general, Indonesian law does not hamper the ability of CSOs to criticize the Government or to advocate for politically unpopular causes. However, there is concern that the 2011 Intelligence Law contains several articles open to multiple interpretations, which CSOs claim violate and override the Law on Public Freedom of Information of 2008. For example, the Intelligence Law defines “intelligence secrets” as “information that could jeopardize national security,” but provides no further explanation about the definition of “national security.” This is problematic for journalists and CSO activists because the provision could be interpreted in a way which would criminalize the spreading of public interest information.  Interestingly, the Constitutional Court, in November 2012, rejected a motion from a coalition of civil society groups to amend the 2011 Intelligence Law, saying that the law neither violated the Constitution nor threatened freedom of expression.

There is generally no limit on the ability of CSOs to engage in political or legislative activities. However, the Government can use the penal code against CSOs as well as media outlets that strongly criticize the Government. In 2009, three activists were suspected of libel due to statements they made in the media regarding corruption and human rights cases. [5]

There is generally no limit on the ability of CSOs to engage in political or legislative activities. However, the government can use the penal code against CSOs as well as media outlets that strongly criticize the government. In 2009, three activists were suspected of libel due to statements they made in the media regarding corruption and human rights cases. [5]

There is also a growing concern about the use of the Law No. 11 of 2008 regarding Electronic Information and Transactions (EIT) as the basis for defamation. The Law actually provides a legal basis for internet-based commerce in Indonesia and codifies a number of internet-based offenses. However, it also contains a provision that criminalizes internet-based insults and defamation, with noticeably stronger penalties than those regulated in the Criminal Code. The Law provides a maximum punishment of 6 years of imprisonment and a fine of up to Rp.1 billion (approximately USD 100,000). Between 2008, when the Law was passed, and October 14, 2014, more than 70 people had been charged under the EIT, with 40 of those cases brought in 2014. Although to date there has not been any case of defamation filed against activists using the EIT, the law is seen generally as a threat to freedom of expression.

[5] They are Usman Hamid of Kontras (The Commission for the Disappeared and the Victims of Violence) and Illian Deta Artasari and Emerson Yuntho of Indonesia Corruption Watch (ICW). See “Libel Suspects to Disregard Summons,” Jakarta Post, October 14, 2009.

Barriers to International Contact

Foreign foundations face a requirement to refrain from activities which “disrupt the stability and the unity“ of Indonesia or “disrupt diplomatic ties.” Excessive bureaucratic controls also require them to have residency and minimum assets for their establishment (USD1 million for a foreign legal entity and USD100,000 for a foreign individual).

Barriers to Resources

The Law on Foundations requires foundations that have received donations from the state, overseas parties, or third parties totaling 500 million Indonesian rupiah (IDR) or more to be audited by a public accountant and to have their annual report summaries published in an Indonesian-language daily newspaper. Foundations are allowed to engage in commercial activities to support the attainment of their objectives through setting up commercial enterprises and/or participating as shareholders in commercial enterprises. Associations, on the other hand, are not allowed to do so. If a foundation sets up its own commercial enterprise, the activities of the enterprise must relate to the foundation’s statutory purposes. These activities are defined broadly, including the fields of human rights, art, sport, consumer protection, education, environment, health, and the pursuit of knowledge. Shareholding by a foundation is allowed, provided that it does not exceed 25 percent of the total value of the foundation’s assets. In order to maintain good corporate governance, no member of the governing, supervisory, or executive board of a foundation can simultaneously serve as a manager, supervisor, member of the Board of Directors, or member of the Board of Commissioners of any commercial enterprise that a foundation establishes or in which it invests.

In October 2011, the House of Representatives passed the zakat (Islamic mandatory alms) management bill into law (Undang-undang tentang Pengelolaan Zakat). According to the new law, individuals are still allowed to establish zakat collection agencies under the supervision of the government-owned National Alms Agency (Baznas), provided that they meet all administrative requirements, including having a recommendation from Baznas and technical ability to run their alms collection and distribution programs. During the House discussion before the bill was passed, a number of legislators questioned some provisions that provide that alms collection and distribution can only be carried out by a societal organization with legal entity status. The legislators said that the new law will force community-based alms management groups to stop their alms collection and distribution activities since they have no resources or capacity to establish a societal organization with legal entity status.

Barriers to Assembly

Law No. 9 of 1998 on Freedom to Express an Opinion in Public governs various kinds of assemblies, including demonstrations, rallies, public meetings and open forums.

Advance Notification
According to Law No. 9 of 1998, the organizer of an assembly shall submit information regarding the assembly in writing to the police at least 24 hours before the event, unless the assembly relates to academic activities on campus or to religious activities. (Article 10)

The advance notification shall contain the following information:

  1. purpose of the assembly,
  2. venue/location/route,
  3. time and duration of the assembly,
  4. form of the assembly,
  5. name of the person in charge, and
  6. name and address of the organization/group/individuals, any equipment that will be used, and number of participants. (Article 11)

The police may dismiss the assembly if they find equipment used in the assembly that is harmful for public safety or if the organizer fails to fulfill the information requirements in Article 10 and 11.

The law does not allow spontaneous demonstrations, unless it is in the form of an academic forum and held on a campus.

Time, Place and Manner Restrictions.
Article 9 of Law No. 9 of 1998 lists places and times that are not allowed for assemblies, including: the presidential palace, religious places, military installations, hospitals, seaports and airports, train stations, land transport terminals, and vital national objects. Assemblies are not allowed on national holidays.

On October 28, 2015, the Governor of Jakarta issued Gubernatorial Regulation No. 228/2015 on the control of free speech in public spaces. The regulation provides that public protests can only be conducted in three designated areas in Jakarta. All three are located in Central Jakarta and reportedly in venues that are rarely used as protest sites. Public protests also can only take place between 6 a.m. and 6 p.m. and the noise level of the sound system should not exceed 60 decibels. Sixty decibals is about as loud as a conversation in a restaurant. Convoys would also be prohibited in demonstrations. CSOs widely criticized the measure. The Governor subsequently stated that he made a mistake in the regulation, specifically that the regulation should not limit demonstration to only those three locations, and he would revise it.

In mid-November 2015, the Governor issued the more lenient Gubernatorial Regulation No. 232/2015 to replace the previous regulation. While the previous regulation allowed only three locations in Jakarta for demonstrations, the new regulation provides that the three named locations are provided by the city administration for demonstrations. Protesters can demonstrate in other public spaces, so long as they do not damage public facilities, litter, or violate human rights. Convoys are no longer prohibited during demonstrations. However, the regulation still requires that public protests take place only between 6 a.m. and 6 p.m. and the noise level of the sound system does not exceed 60 decibels.

In addition, days before the start of the Peoples’ Global Conference (PGC), which is a civil society-led movement that opposes the International Monetary Fund-World Bank (IMF-WB), the Indonesian government ordered a ban on all forms of public assembly and gatherings in Bali. The Bali Intelligence Police, for example, denied a permit to the PGC to assemble, and the administrators of Radio Republik Indonesia Auditorium, which was going to host a PGC event, disallowed the PGC’s use of its venue at the last minute, claiming it needed to undergo “urgent renovations.” The IMF-WB Annual Meetings in Bali from October 11-14, 2018 were considered to be one of the year’s most significant world economic events.

Responsibilities of Organizers
For every 100 participants in a demonstration or rally, organizers must designate at least five persons in charge. (Article 12(2))

Criminal Penalties
Law No. 1/PNPS/1965 on The Prevention of Misuse and/or Defamation of Religions, which regulates religious defamation or blasphemy, imposes criminal penalties of up to five years’ imprisonment on individuals or groups that “deviate” from the basic teachings of the official religions. This law may be used against organizers and participants of assemblies promoting religious freedom.

In addition, the Indonesian Criminal Code (inherited from the colonial period) contains provisions on criminal defamation and libel (Article 310, Article 311, Article 316, and Article 207), which may be applied to organizers and participants of assemblies. The use any separatist movement’s symbols, such as a flag, is treason according to articles 104-107 of the Criminal Code; these articles have been used against assemblies in Papua against the West Papua Separatist Movement.

Enforcement
An assembly involving a separatist movement or land dispute may be subject to harsher regulatory treatment. For example, many protests in West Papua (where demonstrators are believed to represent separatist groups) have been broken up with the use of weapons. In addition, on August 2, 2017, the government disbanded the Muslim hard-line group Hizbut Tahrir Indonesia (HTI) for conducting activities that contradict state ideology of Pancasila and the principle of a unitary state of the Republic of Indonesia. The decision was taken following the issuance of a regulation in lieu of the Law on Mass Organizations, which has sparked concerns over potential violations of the right to assemble because it grants the government the power to disband mass groups without due process.

Reports of repression by Indonesian security forces against protesters and activists resurfaced in Papua, where civil unrest over discrimination, racism, and self-determination efforts began taking place anew in mid-August 2019. An additional 6,000 police and military personnel were flown to Papua to reinforce an already heavy military presence in the region, while the government cut off internet access in the region’s two provinces on August 22, 2019 after restricting access to Papua for foreign journalists and rights monitors. The government maintained that the internet blackout was necessary due to the “the spread of hoax information, lies, expressions of hatred, [and] provocations related to Papuan issues.”

At least 10 Papuans died during that period of unrest, including during a protest on August 28, 2019 in which uniformed police shot live ammunition into a crowd of Papuan protesters. Multiple activists were also arrested for flying or traveling with the Papuan Morning Star flag. Indonesian police further charged Veronica Koman, a prominent Indonesian human rights lawyer, with “spreading fake news and provoking unrest” regarding the protests under the country’s controversial electronic information and transactions law.

UN Universal Periodic Review ReportsUniversal Periodic Review: Indonesia (2008)
Reports of UN Special Rapporteurs