Ulma Haryanto – Former Indonesian Constitutional Court chairman Jimly Assidique said on Tuesday that an imperfect legal foundation should not stop the country's leaders from taking firm action against mass organizations deemed to have disrupted public order.
The 1985 Law on Mass Organizations has been criticized by human rights watchdogs for containing articles that are incompatible with the Constitution, while law enforcers generally dismiss the regulation for being frustratingly convoluted, giving any organization in question plenty of legal leeway to avoid being disbanded.
Under the law, the state is required to issue warnings to the leaders of an organization and summon them for clarification before any steps can to be taken to freeze the organization.
It is only possible to freeze an organization following a recommendation to do so by the Supreme Court.
Once a freeze is in place, the organization faces two options. It must either conform to recommendations made by the government or risk being disbanded and officially outlawed.
Jimly, a professor of law at the University of Indonesia and former presidential adviser, said that although the law was imperfect, that should not dissuade the government from taking the appropriate legal steps against organizations that flaunt the country's laws.
"The government has to act. The 1985 Law gives law enforcers strong authority to act against organizations that use violence. Prompt reactions from the state will discourage repeated violations and stop the public from undermining the law. The state also has the power to take an organization to court," Jimly said.
"My point is this – there is no such thing as a perfect regulation. In any case, an imperfect regulation should not mean that the state ends up sitting back and doing nothing."
However, another constitutional law expert, Irman Putra Sidin, has said the 1985 Law should be applied with caution as the impact of invoking such a law could have serious consequences.
"The law is valid, but some of its articles are not compatible with the Constitution. It was also drafted during the New Order [regime under former President Suharto]," Irman said.
He added that implementing the law would require following the technical procedures laid out in a separate government regulation in 1986.
The technical procedures, Irman pointed out, included "undermining authority and/or discrediting the Indonesian government" as a act of disrupting public order.
"So if we want to use this law to disband one organization, we have to be careful about the possible impact for other organizations," Irman said.
Human rights activist Asfinawati suggested that the implementation of the 1985 law should refer to the 2005 Law on the Ratification of the International Covenant on Civil and Political Rights.
"Because of the potential human rights violations within the 1985 law, it is legally logical for it to be succeeded by a newer regulation," she said.
President Susilo Bambang Yudhoyono has instructed legal authorities to disband any organization that urges its members to resort to violence, following recent attacks against minority groups in Pandeglang, Banten and Temanggung, Central Java.
Three members of the Ahmadiyah sect in Cikeusik, Banten, for instance, were murdered during an attack involving more than 1,500 demonstrators fueled by anti-Ahmadi sentiment. Asfinawati added that the police and the prosecutor's office should work harder to ensure the intellectual actors behind such violent incidents are jailed.
"Disbanding an organization is one approach, but the same people may form a new organization under a different name later on. However, if we take on the leaders, it would set a precedent for the public," she explained.
In cases of extreme hard-line organizations, such as cleric Abu Bakar Bashir's Jamaah AnshorutTauhid, Asfinawati said that once the leader is convicted, the organization that person founded could subsequently end up being outlawed.