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Can Hizbut Tahrir really be dissolved?

Indonesia at Melbourne - June 2, 2017

Eryanto Nugroho – Coordinating Minister for Politics, Legal and Security Affairs Wiranto set off a storm of both praise and condemnation when he announced on 8 May that the government would dissolve Hizbut Tahrir Indonesia (HTI), a societal organisation (or ormas) that aims to establish a pan-Islamic caliphate.

Wiranto listed three reasons for the ban. First, HTI does not play a positive role in national development. Second, HTI's activities violate the aims, principles and characteristics of the Pancasila and the 1945 Constitution. And third, HTI's activities have caused community unrest that could threaten the safety and security in society, as well as endanger the unity of the country.

Some advocates of religious freedom and minority rights, including Nahdlatul Ulama (NU) Chairman Said Aqil Siradj, have backed government efforts to disband the organisation, while many other rights activists and officials have condemned the move for restricting freedom of association and assembly. Others have said they face a dilemma between wanting to support firm enforcement of the law against an undemocratic and disruptive organisation, and fearing a return of political repression.

HTI's global affiliate, Hizb ut-Tahrir, was established in 1953 in Palestine. The Indonesian organisation was founded in the early 1980s in Bogor. For many years, HTI operated by supporting campus-based religious study. Although it is anti-democratic, it is non-violent. It maintains a strong presence on Indonesian campuses and has become increasingly visible in the democratic era. In 2007 and 2013, it attracted tens of thousands of people to massive rallies at the Bung Karno Stadium in Jakarta to support the establishment of a caliphate.

It is unclear why the government has targeted HTI and not other organisations like the Islamic Defenders Front (FPI) or the Islamic Community Forum (FUI). HTI has been present in Indonesia for many years, and no previous government has issued such a clear objection or strong warning. Some have suggested the government's move to ban the organisation is motivated more by political objectives, especially approaching the 2019 elections, than law enforcement.

It is also important to note that there has recently been significant tension between GP Ansor, the youth wing of Nahdlatul Ulama (NU) and HTI. The leadership of GP Ansor has openly urged the government to dissolve HTI. In April in Makassar, there were even physical clashes between GP Ansor and HTI members. If this continues, then the government will have further justification for using its third reason to move forward with a ban.

It is not hard to understand the perspectives of both those who support and those who reject plans to disband the organisation. For supporters, it is a sign that the government is finally taking a decisive response, after years of vacillation. For opponents, it is just another reason to be apprehensive about the shrinking space for freedom of expression in contemporary Indonesia.

Many have also questioned the effectiveness of disbanding the organisation. A banned organisation can just as easily set up a new entity with a different name. Many supporters of the ban recognise this, too, but consider it a necessary political gesture, to demonstrate that the government is willing to take action.

A new legal avenue

One thing that is clear is that the process for disbanding organisations is not as easy as it was in the past. Law No. 17 of 2013 on Societal Organisations (the Ormas Law) regulates the steps that must be taken before an organisation can be banned, including issuing warning letters and suspending activities. For formal legal entities, the dissolution of the organisation is decided in the courtroom. This legal phase is important to prevent arbitrary decisions by authorities and to protect freedom of association and expression.

A few days before the press conference, Wiranto complained that the legal process was "too difficult, complicated and long" compared to the process under the New Order. He complained that it could take at least four years to ban an organisation if the government followed the procedures in the Ormas Law. The government is apparently now considering issuing a government regulation in lieu of law (perppu) to override the law. Issuing a perppu is a problematic action in itself. As the power to issue perppu is a presidential prerogative, they are vulnerable to being issued in an undemocratic and arbitrary manner. They should only be issued in the event of a pressing emergency.

Despite Wiranto's grievances, taking HTI to trial is a much better option than the one-sided decision making of the past. The government seems to have jumped straight in and announced a ban without undertaking the required pre-conditions to get there. Courts are not likely to accept an application to ban an organisation if administrative sanctions have not been first applied. This is clearly stated in Article 70(4) of the Ormas Law.

Whatever happens, HTI is likely to fare better than organisations like the Indonesian Muslim Students Association (PII) or Marhaen Youth Movement (GPM) under the New Order. On 10 December 1987, the government banned the activities of both organisations. They were accused of violating the 1985 Societal Organisations Law for not adopting the Pancasila as their founding principle. This decision was made unilaterally by the minister of home affairs at the time, Soepardjo Rustam, and PII and GPM were given no opportunity to defend themselves.

The process is vastly different in the democratic era. If the government goes ahead with its plans to ban HTI, prosecutors will submit a request to the courts and HTI will then be provided with the right to defend itself in court (this is outlined under Article 70(7)).

Prosecuting acts, not thoughts

Freedom of association and assembly is guaranteed in the Constitution, under Articles 28 and 28E. It is, however, a derogable right – a right that can be limited under certain circumstances. A court hearing on disbanding HTI will no doubt devolve into a tug of war between those arguing for more or less restrictions on freedom of association.

Hizb ut-Tahrir has been banned in many Muslim-majority countries, including Egypt, Saudi Arabia, and Turkey, as well as in China, Germany and Russia. It remains legal in Australia and the United Kingdom. The government (and the Prosecutor's Office in particular) must carefully study the arguments these countries have made for and against bans, before it submits its application to the courts. The government must also remember that it has ratified the International Covenant on Civil and Political Rights (ICCPR), which defines acceptable limitations on freedom of association.

Article 22 of the ICCPR states that freedom of association may only be restricted if these restrictions are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, public order, the protection of public health or morals or the protection of the rights and freedoms of others.

If HTI is to be banned, the government must be able to prove that HTI has violated provisions in the Ormas Law. Article 59 of the Ormas Law prohibits: using the name, symbol or flag with similarities to a separatist or banned organisation; hostile acts toward an ethnic, religious, racial or societal group; separatist activities that could threaten the unity of the country; violence and disturbing public order; damaging public facilities; and embracing or promoting teachings or understandings that are contrary to the Pancasila (further described in the elucidation to the law as atheism, communism, and Marxism-Leninism). It is therefore debatable whether the government has grounds to ban the organisation. Victory in the courtroom is by no means guaranteed.

If the government does submit an application to ban HTI, hopefully this will prompt thorough and careful debate. The courts must also work independently and impartially. The role of the courts is not to judge the extent to which HTI complies with Pancasila. Their role is simply to decide whether HTI has engaged in activities that mean it should be banned.

Whatever the outcome, it is only acts, not thoughts and concepts that should be prosecuted.

[A version of this article was originally published in Bahasa Indonesia on Hukumonline.com. It has been translated into English, revised, and updated. Eryanto Nugroho is a researcher at the Indonesian Centre for Law and Policy Studies (PSHK), and a lecturer at the Indonesia Jentera School of Law (STH Indonesia Jentera).]

Source: http://indonesiaatmelbourne.unimelb.edu.au/can-hizbut-tahrir-really-be-dissolved/