Informe en el que el Comité pide que se le mantenga informado de la evolución de la situación - Informe núm. 374, Marzo 2015

1. 436. The complaint is contained in communications from the International Trade Union Confederation (ITUC) dated 17 December 2013 and 4 December 2014.
2. 437. The Government forwarded its response to the allegations in communications dated 28 February and 9 May 2014.
3. 438. Indonesia has ratified the Freedom of Association and Protection of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. The complainant’s allegations

1. 439. In its communication dated 17 December 2013, the complainant organization alleges that, on 31 October 2013, an organized attack by paramilitary organizations was carried out against workers participating in a peaceful national strike to demand an increase of the minimum wage, the implementation of health insurance by January 2014, the passing of the domestic workers bill and to protest against outsourcing particularly in state-owned enterprises, and the adoption of the Mass Organizations (Ormas) Act No. 17 of 2013 (Mass Organizations Act) in front of PT. Abacus in EJIP Industrial Estate, Cikarang Bekasi.
2. 440. The complainant alleges that, according to available information, police officers in Bekasi District who were deployed to the site during the national strike did not take any measures to stop the attacks or to protect the workers, allowing the acts of violence to continue.
3. 441. The complainant organization indicates that 28 workers from Abacus, Chaolong, Duta Laserindo, Tsuang Hine, Tristar, Gunze Furindo, Enkei, Fatasarana, Cheil Abrasive, Kyungsin, Titian Indah, Nusahadi and Tatalogistic companies were injured by the thugs who were armed with knives, iron rods and machetes, with 17 severely injured and admitted to hospital. Three were in critical condition as a result of the physical attack.
4. 442. According to the complainant, the authorities have arrested nine people in connection with the attacks; however, those arrested, pursuant to its information, do not include those responsible for planning the attacks nor do they represent the totality of those who participated in the attacks. In the complainant’s view, the Government should take all measures necessary to arrest and prosecute those responsible for planning and carrying out these attacks and to discipline those police officers who allowed these attacks to continue. The Government must also ensure that the police respond appropriately in the future to safeguard the right of workers to strike over such matters.
5. 443. Additionally, the complainant organization states that the controversial Mass Organizations Act was enacted on 2 July 2013, in spite of overwhelming and well grounded concern over the law’s impact on fundamental human rights. In its view, several of its provisions infringe unquestionably the rights to freedom of association and expression enshrined under various international human rights instruments and should be denounced on that basis. However, the law is ambiguous as to whether it applies to trade unions. The complainant expresses its deep concern that such ambiguity could be exploited by the Government to apply the law to trade unions at its discretion.
6. 444. Should the Government confirm that the Mass Organizations Act does in fact apply to trade unions, the complainant considers the following provisions as in breach of Convention No. 87 (analysis limited to publicly available excerpts in English), and wishes to request the Committee to undertake a full study of the law (enclosed with the complaint in Bahasa) for other potential violations of the Convention:
   • – Section 2: Imposes the requirement that the basic principles of any registered organization should not be at odds with Pancasila, the official State philosophy which requires the belief “in the One and Only God”, a “just and civilized humanity”, “unity of Indonesia”, “democracy” and “social justice”.
   • – Section 5: Restricts the activities of organizations to eight limited purposes including maintaining the value of religion and belief in God; preserving and maintaining the norms, values, morals, ethics and culture; or establishing, maintaining, and strengthening the unity of the nation.
   • – Section 21(b): Requires organizations to “protect the unity and integrity of the Unitary Republic of Indonesia”.
   • – Section 52: The law curtails the activities of foreign organizations, which must obtain a permit from the Ministry of Foreign Affairs to operate. The activities of foreign organizations must not disrupt the “stability and oneness” of Indonesia, and they may not carry out “practical political activities” or fundraising or activities “which disrupt diplomatic ties”.
   • – Section 59(2): Provides that the objective of an organization is to “preserve religious values and belief in God” and the law prohibits “abuse, blasphemy or defamation against any religion acknowledged in Indonesia”.
   • – Section 59(4): Bans the spreading of teachings and beliefs that are at odds with the Pancasila, such as “Communism/Marxism-Leninism” and “atheism”.
7. 445. The complainant alleges that these provisions could easily be invoked to interfere, for example, with the right of trade unions to free expression, to freely organize their own activities and to formulate their programmes, to strike or engage in other concerted activity (as potentially contrary to Pancasila). Further, section 52 could be used to prohibit the activities of international trade union organizations to which Indonesian unions are affiliated to undertake legitimate union activities. If confirmed that the law does apply to unions, these and other provisions must be amended or repealed.
8. 446. In its communication of December 2014, the complainant provides new allegations of recent attacks by the police on trade unionists engaged in peaceful protests for the increase of the minimum wage rates in Bekasi District, East Java, Batam and Bintan on Rican Island.

B. The Government’s reply

1. 447. In its communication dated 28 February 2014, the Government first responds to the allegations of violence against strike participants during workers’ action in front of the PT Abacus at East Jakarta Industrial Park (EJIP) area, Cikarang, Bekasi, West Java on 31 October 2013. The Government considers it necessary to clarify the form of the action undertaken by the trade union, whether defined as a strike or a demonstration.
2. 448. The national demonstration conducted by the Confederation of Indonesian Trade Unions (KSPI) in the industrial area which is located in the district of Bekasi, has involved around 30,000 people. Based on the KSPI letter No. 387/DEN-KSPI/X/2013 dated 24 October 2013 concerning the Notification of Demonstration, the police has issued the Receipt of Notification Letter (STTP) No. STTP/YANMAS/312/X/2013/Baintelkam dated 30 October 2013 with the provisions to be implemented by the demonstration participants. The Government states that, accordingly, in their demonstration action, the trade union should not have recourse to sweeping, blocking the road, carrying weapons and other things that may harm others and not commit acts of anarchy. However, according to the Government, the KSPI has ignored these provisions (they swept workers other than KSPI members and blocked the road).
3. 449. In the Government’s view, clashes between community and the workers were triggered by the actions of the workers who had recourse to sweeping into the factories to force workers who did not want to demonstrate, made a convoy to the residential area, and closed access or blocked public roads. The Government believes that these actions provoked the emotion of the community because the workers had promised by way of agreement to limit their activities to strike or production stoppage and had broken their promise. According to the Government, the mass mobilization conducted by the community which led to clashes was basically caused by their fear of previous experiences and information of other actions performed by workers that interfere with the imposition of the will of peace and public service. The community was concerned that the workers’ activities would disrupt the investment climate or would make investors leave the district of Bekasi, which would certainly have a direct impact on community members who depend on the existence of the companies in that area, such as small enterprises or owners of waste management services, housing rental services, catering services and ojeg (motorcycle used for public transport).
4. 450. The Government then raises the question as to whether the workers had recourse to a strike or a demonstration. The Government indicates that Act No. 13 of 2003 concerning manpower regulates strike action. Section 1 of the Manpower Act defines strike as a collective action of workers, which is planned and carried out by a trade union to stop or slow down work; in its implementation, the workers should comply with the requirements of sections 137 and 140. Section 137 provides that strike is a fundamental right of workers and trade unions that shall be staged legally, orderly and peacefully as a result of failed negotiation. Under section 140(1) and (2), workers and trade unions intending to stage a strike are under an obligation, within a period of no less than seven days prior to the actual realization of a strike, to give a written notification of the strike intention to the entrepreneur and the local government agency responsible for manpower affairs. The notification shall at least contain: (i) the time (day, date and the hour) at which they will start and end the strike; (ii) the venue of the strike; (iii) the reasons for the strike; and (iv) the signatures of the chairpersons and secretary of the striking union and/or the signature of each of the chairpersons and secretaries of the unions participating in the strike who shall be held responsible for the strike. In the case of a strike conducted by workers who are not members of the trade union, the notice must be signed by the representatives of the workers who are designated as the coordinator and/or responsible for the strike. In the case of a strike that does not comply with the provisions of section 140, the employer can take action to save the production tools and the company’s assets as follows: (i) prohibiting the workers to strike in locations where there are production processes; or (ii) if necessary, prohibit workers to strike at the company location. The Government recapitulates the legal requirements for a strike, namely prior negotiations held between the trade union and employers without reaching an agreement (failed negotiation) and subsequent delivery of strike notice.
5. 451. The Government further states that, according to section 1, number 3 of Act No. 9 of 1998 on Freedom of Expression in Public, demonstration is an activity undertaken by one or more than one person to express their opinion (orally, in writing, etc.) demonstratively in public, that is, a place that can be visited and or seen by any person. Section 10 stipulates that the implementation of such protests or demonstrations shall be notified in writing by the relevant person, leader, or person in charge of the group to the local police department, at least three times, 24 hours before the activity starts.
6. 452. The Government stresses that the implementation of a strike requires notification by the workers or the union to the institution responsible for labour issues as well as to the employer, while the implementation of a demonstration requires written notification to the local police department. According to the information obtained from the Bekasi Regional Police Office and Manpower Regional Office: (i) no negotiations had failed between the worker or trade union and employers concerning industrial relations issues; and (ii) no strike notice was submitted to the Bekasi Manpower Regional Office. Based on the above, the Government concludes that the action undertaken by the KSPI does not constitute a strike but rather a demonstration.
7. 453. The Government underlines that, pursuant to the Freedom of Expression in Public Act, if acts of violence are committed by the civil society/mass organizations against workers outside the enterprise, the police take action. Accordingly, the Metro Jaya Regional Police have investigated into 11 public complaints received against the abovementioned events at the time of the demonstration (four complaints in Bekasi police and seven in the Indonesian National Police Headquarters). The police have taken law enforcement measures through investigation based on the Indonesian Criminal Code (Act No. 8 of 1981), Act No. 2 of 2002 on the Indonesian National Police and the Indonesian National Police Chief Regulation No. 14 of 2012 on the Management of Investigation, which consist of the following: (i) drawing up the police report; (ii) investigation of the victims; (iii) investigation of the witnesses; (iv) publication of the written physician reports from the hospital where the victims were treated; (v) conduct of the seizure and examination of evidence related to a criminal offence; (vi) determination of ten suspects and arrests within 18 hours after the incident; (vii) investigation of the suspects; (viii) drawing up allegations against the suspects; and (ix) submission of five cases to the High Court (Bandung, West Java). Currently, the prosecutor is examining the case files submitted by the investigator for the purpose of trial. The remaining matters are still being investigated by the police; if the supposed case breaches Indonesian criminal law, determination and examination of the suspect will be conducted, which will be followed by the filing of the case with the attorney office; during the investigation process, the complainant is always notified of developments.
8. 454. Furthermore, in its communications dated 28 February and 9 May 2014, the Government responds to the complainant’s allegation that, if applied to trade unions, several sections of the Mass Organizations Act are contrary to Convention No. 87, as they interfere with trade union rights. The Act replaces No. 8 of 1985 concerning civil society organizations, which was not considered to be in line with the current state system, and is based on the Indonesian Constitution of 1945. According to the Government, the Mass Organizations Act was drafted by Parliament (in close cooperation with the Government the process of drafting not only involved the House of Representatives and the Government but the discussions of the draft also involved various elements from the Indonesian community, including civil society organizations and professional organizations.
9. 455. The Government considers that the Act provides sufficient space for civil society organizations to develop and grow properly which should be in accordance with the constitution and the principles of civil society organization governance. According to section 1 of the Mass Organizations Act, the civil society organization is defined as an organization which is established voluntarily by society, based on similar aspirations, will, needs, interests, activities and purposes for participating in the development process for the achievement of the goals of the Republican Unitary Nation of Indonesia according to Pancasila.
10. 456. The Government indicates that, in the Indonesian legal system, it is possible to submit a Judicial Review to the Constitutional Court, if the content of a law, including the Mass Organizations Act, is considered to be contrary to the Indonesian Constitution. Several civil society organizations in Indonesia, including the KSPI, have filed Case No. 3/PUU XI1/2014 (enclosed with the complaint) with the Constitutional Court on 9 January 2014, alleging that certain provisions of the Mass Organizations Act violate the Indonesian Constitution. The examination of the Act is still ongoing. The Government therefore concludes that the Mass Organizations Act does not restrict the constitutional rights of citizens, including trade unions, in Indonesia.
11. 457. The Government states that the Mass Organizations Act does not intend to restrict or impede the rights of workers or employers to organize. The Act recognizes that civil society organizations are development partners of the Government to implement national development programmes. In this connection, the Government welcomes the cooperation with civil society organizations as long as it does not contradict with the main principles of the State, as stipulated in the 1945 Constitution. Its article 28E.3 stipulates that “(e) very person shall have the right to the freedom to associate, to assemble and to express opinion”, and article 28 provides that “[t]he freedom to associate and to assemble, to express written and oral opinions, etc., shall be regulated by law”. With regard to the concerns that the Mass Organizations Act would eliminate or restrict the freedom of association of workers, the Government highlights that it guarantees and respects the rights of workers to associate and express their opinion as stipulated in Convention No. 87, ratified by Indonesia in 1998. It adds that the right of workers to organize has been further regulated by Act No. 21 of 2000 concerning trade unions.
12. 458. With respect to the specific provisions of the Mass Organizations Act invoked by the complainant (sections 2, 5, 21(b), 52, 59(2) and 59(4)), the Government states the following. Section 2 provides that the principles of civil society organizations must not contradict Pancasila and the 1945 Constitution of Indonesia. The Government indicates that it has consistently endeavoured to adhere to the humanitarian precepts and basic human rights and freedoms embodied in Pancasila - the official philosophical foundation of the Republican Unitary Nation of Indonesia, the 1945 Constitution and national laws and regulations. Indeed these precepts, rights and freedom, as embodied in the constitutional and legal system, derive from age-old traditions, customs and the philosophy of life of the Indonesian people. The philosophical basis of Indonesia, Pancasila, which are “Five Moral Principles” of Indonesian life, embrace humanitarian ideals that are mutually interlinked and inseparable. The Indonesian Constitution, which is based upon the national philosophy, Pancasila, also contains humanitarian precepts and basic principles of human rights. These principles have been incorporated into a number of national laws and regulations that serve to protect and promote the well-being of the Indonesian people. Moreover, the Government underlines that the 1945 Constitution enshrines many principles that are similar to those contained in the 1948 Universal Declaration of Human Rights.
13. 459. According to section 5 of the Act, civil society organizations aim to: (i) promote participation and empowerment of society; (ii) serve the society; (iii) uphold religious values and faith in God Almighty; (iv) conserve and preserve norms, values, morale, ethics and culture within society; (v) conserve natural resources and the environment; (vi) develop social tolerance, mutual aid and tolerance within society; (vii) uphold, preserve and strengthen the nation’s unity and integrity; and (viii) realize the purposes of the country. In this regard, the Government states that Indonesia’s national objectives as mandated by the 1945 Constitution are to protect the whole people of Indonesia and the entire homeland of Indonesia, and in order to advance general prosperity, to develop the nation’s intellectual life, and to contribute to the implementation of a world order based on freedom, lasting peace and social justice. To achieve these objectives, the Government expects all components of the nation, including civil society organizations to support the national objectives as mandated by the Constitution.
14. 460. Section 21(b) of the Act stipulates the obligation to uphold the unity and integrity of the nation as well as the integrity of the Republican Unitary Nation of Indonesia. The Government indicates that the preservation of the unity and integrity of the Indonesian nation and State is the obligation of all Indonesian people. In this context, civil society organizations, through their activities, are also required to contribute to the preservation of the unity and integrity of the Indonesian nation and State.
15. 461. Section 52 of the Act provides that civil society organizations established by foreign citizens as referred to in section 43(2) are prohibited from: (i) conducting any activities which contradict prevailing laws and regulations; (ii) disrupting the stability and integrity of the Republican Unitary Nation of Indonesia; (iii) conducting intelligence activities; (iv) conducting political activities; (v) conducting any activities that may disrupt diplomatic relations; (vi) conducting any activities contrary to the purpose of the organization; (vii) raising funds from the Indonesian community; and (viii) using facilities and infrastructures of government agencies and institutions. The Government indicates that it welcomes foreign civil society organizations that wish to participate in the implementation of its national development programmes. For this purpose, foreign civil society organizations are required to acquire a Government permit and to cooperate with the Government and local civil society organizations. This provision is not intended to restrict foreign civil society organizations’ activities in Indonesia, but to promote transparency, partnership and transfer of knowledge and technology to local civil society organizations. The registration of foreign civil society organizations before being able to conduct activities is a common practice in many other countries.
16. 462. Section 59(2) of the Act prohibits civil society organizations from: (i) performing hostile activities towards any tribe, religion, race or group; (ii) abusing, defaming or desecrating the religious beliefs in Indonesia; (iii) performing separatist activities which threaten the sovereignty of the Republican Unitary Nation of Indonesia; (iv) undertaking acts of violence, disturbing peace and public order, or damaging public and social facilities; or (v) performing activities which fall under the duty and authority of law enforcement agencies in accordance with the prevailing law and regulations. The Government indicates that, with a view to achieving the objectives of national development to realize prosperity and well-being for all people of Indonesia, all stakeholders should be able to maintain harmony and public order.
17. 463. Section 59(4) of the Act prohibits civil society organizations from embracing, developing and spreading teachings or doctrines which contradict Pancasila. The Government states that the right to freedom of expression is guaranteed. In its view, the exercise of the right to freedom of expression entails responsibility to respect the rights of others and the applicable laws and regulations.
18. 464. In conclusion, the Government of Indonesia assures that the Mass Organizations Act does not restrict the constitutional rights of all citizens, including trade unions, to associate, to assemble and to express opinions in Indonesia.

C. The Committee’s conclusions

1. 465. The Committee notes that, in the present case, the complainant denounces: (i) an organized attack by paramilitary organizations against workers participating in a peaceful national strike in October 2013; and (ii) the possible negative impact of the Mass Organizations Law enacted in July 2013 on the exercise of workers and their organizations rights to freedom of association and expression.
2. 466. With respect to the events of 31 October 2013, the Committee notes that, according to the complainant: (i) workers participated in a peaceful national strike in front of an enterprise in the Bekasi District, in order to demand an increase of minimum wages, the implementation of health insurance and the passing of the domestic workers bill, and to protest against outsourcing particularly in state-owned enterprises and the adoption of the Mass Organizations Act; (ii) despite an organized attack by paramilitary organizations against the workers, police officers who were deployed to the site during the national strike did not take any measures to stop the attacks or to protect the workers, allowing the acts of violence to continue; (iii) 28 workers from several companies were injured by armed individuals, with 17 severely injured and admitted to hospital (of which three in critical condition); and (iv) while the authorities have arrested nine persons in connection with the attacks, those arrested do not include those responsible for planning the attacks nor do they represent the totality of those who participated in the attacks. The Committee also notes the recent allegations of further attacks by the police on trade unionists engaged in peaceful demonstrations and requests the Government to reply in detail.
3. 467. The Committee notes the Government’s indication that: (i) based on the KSPI letter of 24 October 2013 concerning the Notification of Demonstration, the police issued the Receipt of Notification Letter (STTP) dated 30 October 2013 with the provisions to be implemented by the demonstration participants (including prohibition of recourse to sweeping, blocking roads, carrying weapons and acts of anarchy), but the KSPI has ignored these; (ii) clashes between the community and the workers were triggered by the actions of the workers who had recourse to sweeping into the factories to force workers other than KSPI members to demonstrate, made a convoy to the residential area and closed access or blocked public roads, although they had promised to limit their activities to strike or stoppage of production, as well as concerns of the community that the workers’ activities would disrupt the investment climate in the district of Bekasi; (iii) the national action undertaken by the KSPI in the industrial area in the Bekasi District involving around 30,000 people, does not constitute a strike but rather a demonstration, because the legal requirements for a strike under sections 1, 137 and 140 of the Manpower Act (prior failure of the negotiations held between the trade union and employers and delivery no less than seven days prior to the actual realization of the work stoppage or slowdown of a written strike notice to the entrepreneur and the local government agency responsible for manpower affairs) have not been fulfilled (according to the information obtained from Bekasi Regional Police Office and Manpower Regional Office, no negotiations had failed between the trade union and employers concerning industrial relation issues, and no strike notice was submitted to the Bekasi Manpower Regional Office); whereas the legal requirements for a demonstration under sections 1 and 10 of the Freedom of Expression in Public Act (notification in writing to the local police department at least three times, 24 hours before the activity undertaken by one or more persons to express their opinion in a public place starts) have been met; and (iv) the police have investigated into 11 public complaints against the acts of violence occurred at the time of the demonstration (police report; investigation of the victims and witnesses; examination of physician reports and other evidence; arrests within 18 hours after the incident and investigation of ten suspects), with five cases having been submitted to the High Court, the Prosecutor currently examining the case files submitted by the investigator for the purpose of trial, and the remaining matters still being investigated by the police.
4. 468. The Committee notes the diverging views of the complainant and the Government as to the qualification of the activity undertaken by the KSPI as a national strike or demonstration, respectively. While recalling that the right to strike should not be limited solely to industrial disputes that are likely to be resolved through the signing of a collective agreement and that workers and their organizations should be able to express in a broader context, if necessary, their dissatisfaction as regards economic and social matters affecting their members’ interests [see Digest of decisions and principles of the Freedom of Association Committee, fifth (revised) edition, 2006, para. 531], the Committee considers that it is irrelevant for the present case whether the KSPI activity is ultimately qualified as a national strike or a national demonstration. Noting that the Government, while invoking actions such as sweeping of factories and blocking of roads, does not claim that the workers committed acts of violence and, at the same time, does not deny the allegation that the deployed police officers did not take any measures to stop the attacks or protect the workers, allowing the acts of violence to continue, the Committee recalls that the rights of workers’ and employers’ organizations can only be exercised in a climate that is free from violence, pressure or threats of any kind against the leaders and members of these organizations, and it is for governments to ensure that this principle is respected [see Digest, op. cit., para. 44]. The Committee expects that the Government will make every effort to ensure that this principle is fully respected in the future. Furthermore, the Committee notes the conflicting positions of the complainant and the Government as to whether the measures taken by the police following the events were sufficient. Emphasizing that it does not have the elements at its disposal to enable it to assess the appropriateness of the law enforcement measures adopted, the Committee wishes to generally recall that, in the event of assaults on the physical or moral integrity of individuals, the Committee has considered that an independent judicial inquiry should be instituted immediately with a view to fully clarifying the facts, determining responsibility, punishing those responsible and preventing the repetition of such acts [see Digest, op. cit., para. 50]. The Committee trusts that this principle will be fully respected as regards all perpetrators and instigators of the alleged acts of violence, as well as in respect of the allegations of inaction by the police in response to the violence, and requests to be kept informed in this regard.
5. 469. With respect to the Mass Organizations Act, the Committee notes, as regards the ambiguity of its scope of application alleged by the complainant, that the Government does not deny the applicability of the Act to trade unions, and that there is a divergence of views between the parties as to whether or not the relevant provisions of the Mass Organizations Act restrict trade union rights, in particular the right to freedom of expression.
6. 470. First and foremost, the Committee notes that section 2 of the Mass Organizations Act requires that the principles of civil society organizations be in line with Pancasila, which according to the Government is the official philosophical foundation of the country enshrining as a first principle the belief in the one and only God, and that the complainant alleges that, for instance, communism/Marxism and atheism would be banned as being considered at odds with Pancasila. In this regard, the Committee also observes that, under section 59(4), civil society organizations are prohibited from embracing, developing and spreading teachings or doctrines which contradict Pancasila.
7. 471. The Committee recalls that freedom of association implies not only the right of workers and employers to form freely organizations of their own choosing, but also the right for the organizations themselves to pursue lawful activities for the defence of their occupational interests. It reiterates that the full exercise of trade union rights calls for a free flow of information, opinions and ideas, and to this end workers, employers and their organizations should enjoy freedom of opinion and expression at their meetings, in their publications and in the course of other trade union activities; nevertheless, in expressing their opinions, trade union organizations should respect the limits of propriety and refrain from the use of insulting language. The Committee emphasizes that the freedom of expression which should be enjoyed by trade unions and their leaders should also be guaranteed when they wish to criticize the Government’s economic and social policy [see Digest, op. cit., paras 154, 157 and 495].
8. 472. In view of the above, the Committee trusts that the broad and general wording used in the above provisions containing prohibitions will not be used in a manner that would restrict the exercise of trade union rights, including the right of trade unions to express their opinions freely and exercise their freedom of belief. The Committee requests the Government to provide detailed information on any penal and administrative sanctions (including fines, dissolution or deregistration) imposed in law and in practice for the violation of the above sections. The Committee also invites the complainant to supply any information at its disposal in relation to the manner in which these provisions may have been used to restrict trade union rights.
9. 473. Furthermore, the Committee notes that section 5 enumerates an exhaustive list of eight purposes to be pursued by civil society organizations and that the Government expects all components of the nation, including civil society organizations, to support the national objectives as mandated by the Constitution. The Committee also observes that section 21(b) stipulates the obligation to uphold the unity and integrity of the nation as well as the integrity of the Republican Unitary Nation of Indonesia and that, according to the Government, civil society organizations, through their activities, are required to contribute to this goal.
10. 474. The Committee recalls that it previously held that a law obliging leaders of occupational associations to make a declaration “to uphold democracy” could lead to abuses, since such a provision does not include any precise criteria on which a judicial decision could be based were a trade union leader to be accused of not having respected the terms of the declaration. With regard to legal provisions under which “the trade unions shall mobilize and educate workers and employees so that they ... respect work discipline”, they “shall organize workers and employees by conducting socialist emulation campaigns at the workplace” and “the trade unions shall educate workers and employees ... in order to strengthen their ideological convictions”, the Committee has considered that the functions assigned to the trade unions by this body of provisions must necessarily limit their right to organize their activities, contrary to the principles of freedom of association. It has considered that the obligations thus defined, which the unions must observe, prevent the establishment of trade union organizations that are independent of the public authorities and of the ruling party, and whose mission should be to defend and promote the interests of their constituents and not to reinforce the country’s political and economic systems [see Digest, op. cit., paras 506 and 507].
11. 475. The Committee considers that the above provisions confer, owing to their vagueness, wide discretionary powers upon the authorities in assessing whether or not the goals of the relevant organization are compatible with those stipulated under section 5 or whether or not the obligation contained in section 21(b) is respected, and might thus be invoked to refuse the request for or cancel the registration of trade unions. The Committee requests the Government to provide any information available on the manner in which these stipulations may or have been used with the respect to the registration or cancellation of registration of a trade union. The Committee also invites the complainant to supply any information at its disposal in this regard.
12. 476. Lastly, the Committee notes that, under section 52, civil society organizations established by foreign citizens are prohibited in particular from conducting political activities or any activities that may disrupt diplomatic relations and from raising funds from the Indonesian community, and that, according to both parties, foreign civil society organizations are required to acquire a Government permit before being able to conduct activities. The Committee recalls that provisions imposing a general prohibition on political activities by trade unions for the promotion of their specific objectives are contrary to the principles of freedom of association, and that any assistance or support that an international trade union organization might provide in setting up, defending or developing national trade union organizations is a legitimate trade union activity, even when the trade union tendency does not correspond to the tendency or tendencies within the country [see Digest, op. cit., paras 500 and 739]. The Committee considers that section 52 could be used to prohibit international trade union organizations to which Indonesian unions are affiliated from undertaking legitimate union activities and support to its affiliates, and to thus interfere in the internal functioning of such organizations. It requests the Government to provide detailed information on any application in practice of this provision with respect to the activities of the ITUC in Indonesia. The Committee also invites the complainant to supply any information at its disposal in this regard.
13. 477. The Committee expects that its considerations will be taken into account in the application of the law in practice and any future review of the Mass Organizations Act. It requests the Government to keep it informed in this respect as well as concerning the outcome of the Petition for Judicial Review of certain provisions of the Mass Organizations Act filed by national civil society organizations on 9 January 2014 and currently pending before the Constitutional Court.