International Commission of Jurists: 13 December 2017
H.E. Mr. Thongloun Sisoulith, Prime Minister
Prime Minister’s Office, Vientiane, Lao People’s Democratic Republic
H.E. Mr. Bounnhang Vorachith, President
President’s Office, Vientiane, Lao People’s Democratic Republic
H.E. Mr. Xaysi Santivong, Minister of Justice
Ministry of Justice, Vientiane, Lao People’s Democratic Republic\
13 December 2017
Dear H.E. Mr. Thongloun Sisoulith, H.E. Mr. Bounnhang Vorachith and H.E. Mr. Xaysi Santivong,
RE: REPEAL OF DECREE ON ASSOCIATIONS No. 238 of 2017
The International Commission of Jurists (ICJ), Amnesty International, Human Rights Watch, the International Federation for Human Rights (FIDH), the Asian Forum for Human Rights and Development (Forum-Asia), ASEAN Parliamentarians for Human Rights (APHR), the International Service for Human Rights (ISHR), The Centre for Civil and Political Rights (CCPR-Centre) and World Organisation Against Torture (OMCT) express deep alarm about the issuing and coming into force of the Decree on Associations (No. 238 of 2017) (‘the Decree’) in the Lao People’s Democratic Republic (Lao PDR).
We call on the Government of Lao PDR to repeal or significantly amend the Decree to bring it into line with international human rights law and standards. We also call on the government to fundamentally reform the legal framework for the regulation of associations in Lao PDR and bring it into accord with international human rights law and standards. Repeal or amendment of the Decree must come as part of this fundamental reform of the framework of regulation of associations.
The Decree on Associations, dated 11 August 2017, came into force on 15 November 2017.[1] Pursuant to its article 81, this law supersedes the Decree on Associations (No. 115 of 2009) dated 29 April 2009 (‘2009 Decree’).[2] The 2009 Decree had already included imprecise and overly broad terms that led to arbitrary restrictions on the rights to freedom of association, freedom of opinion and expression and the right to privacy in Lao PDR. The new Decree appears to make things even worse.
The current Decree gives government authorities in Lao PDR sweeping powers that enable arbitrary restriction or denial of fundamental rights, including the power to unreasonably control and/or prohibit the formation of associations; arbitrarily broad powers to inspect, monitor and curtail the activities and finances of associations; the power to order the dissolution of associations on arbitrary grounds and without right of appeal; and powers to discipline associations and individual members on arbitrary grounds. The Decree also includes measures to criminalize unregistered associations and allow for prosecution of their members.
As a party to the International Covenant on Civil and Political Rights (ICCPR), Lao PDR has a legal obligation to respect, protect and guarantee, among others, the rights to privacy (article 17), freedom of opinion and expression (article 19) and freedom of association (article 22). Rights to form and to join associations are inherent components of the right to freedom of association.[3] Only restrictions that meet the requirements[4] of the ICCPR are permitted: restrictions must recognize the purposes of the ICCPR and “conform to the strict tests of necessity and proportionality.”[5]
The UN Declaration on Human Rights Defenders also affirms the rights of persons to freely form and join associations – non-governmental or otherwise – and asserts States’ duties to implement necessary legislative, administrative or other measures for effective promotion and protection of these freedoms.
New Provisions of Particular Concern
The current Decree imposes on associations and individual members more explicitly restrictive limitations than had been imposed under the 2009 Decree.
Under the current Decree, government authorities have wider arbitrary powers to prohibit activities by associations, dissolve and suspend associations, and “discipline” or criminally prosecute associations or their individual members who violate the law.[6] Restrictions on associations’ activities have also been expanded under article 31 of the current Decree, and key terms in the law delineating restrictions are not defined, allowing for arbitrary decision-making by government authorities.
Violation of prohibitions listed under article 31 of the current Decree now makes an association explicitly subject to dissolution under article 48. Article 48.1.4 also explicitly allows for dissolution if an association “does not apply for registration”. This further expands the grounds for dissolution that were set out in the 2009 Decree – “expiry of operating terms”, “failure of associations to operate over 12 months” or “attainment of objectives stipulated in an association’s charter” – which had already allowed for arbitrary restrictions on the right to freedom of association. These restrictions are retained in article 48 of the current Decree.
The current Decree also maintains other restrictions on fundamental rights which had been codified in the 2009 Decree, namely,
- Requiring prior approval by government agencies, at various stages of establishment, for the formation of any association;
- Apparently disallowing formation of groups on grounds such as “political or other opinion”, “religion” or “social origin”, which violates article 2(1) of the ICCPR and article 2(2) of the International Covenant on Economic, Social and Cultural Rights (ICESCR), which Lao PDR has ratified;
- Imposing an extensive and time-consuming process of government scrutiny of all members, functions and funds of associations prior to registration and renewal of registration of an association, requiring individuals to submit unjustifiably intrusive personal information to government authorities for approval, which could amount to “arbitrary interference” on the right to privacy under article 17 of the ICCPR;
- Maintaining stringent monitoring and inspection at village, provincial and central levels of almost all operations of associations, including their organizational structure, activities and use of resources.
In the attached legal brief, these limitations have been detailed with reference to relevant provisions of the law
Recommendations
We call upon the Government of Lao PDR to immediately repeal or significantly amend the Decree on Associations, to respect its obligations under international law, and to conduct a fundamental reform of the framework of regulation of associations. Arbitrary, overbroad and discriminatory elements of the current framework must be entirely removed.
In particular:
- The law should make clear that individuals are free to form private unincorporated associations without needing to notify or register the association with the State.
- For those individuals who wish to incorporate an association so that it acquires separate legal personality, we recommend that the law provide for automatic registration upon notification by individuals where simple administrative requirements are met, rather than a system requiring prior permission of State officials. This is pertinent given that legal provisions are likely, in the context of Lao PDR, to be applied in practice in a discriminatory manner to prevent the formation or operations of associations perceived by the authorities as inconsistent with the ideology or political policies of the Lao People’s Revolutionary Party.
- Discretion of authorities to refuse to register an association should be eliminated or at least be very narrowly defined, and applicants should have the right to appeal or review, by an independent and impartial court, of any refusal or other measures that could negatively impact the association. If authorities retain any authority to dissolve registered associations, the grounds for such dissolution should be explicitly and narrowly defined. This is to preclude dissolution based on discrimination on grounds of political opinion or other grounds protected by international human rights law and standards: for example, grounds for dissolution could be limited to situations where the association has been directly used to commit acts properly characterized as criminal in accordance with international human rights law and standards. The law should also provide that dissolution may only be ordered by an independent and impartial court, after a fair hearing for affected persons and associations.[7]
Please do not hesitate to contact us if you have any comments or questions. We stand by to provide any assistance required.
We appreciate your urgent attention to this matter.
Yours faithfully,
Saman Zia-Zarif, Secretary-General, International Commission of Jurists
Phil Robertson, Deputy Director, Asia Division, Human Rights Watch
James Gomez, Regional Director, South East Asia and the Pacific, Amnesty International
Dimitris Christopoulos, President, International Federation for Human Rights (FIDH)
Hon. Charles Santiago, MP, Chairperson, ASEAN Parliamentarians for Human Rights (APHR)
Phil Lynch, Director, International Service for Human Rights (ISHR)
John Samuel, Executive Director, Asian Forum for Human Rights and Development (Forum-Asia)
Patrick Mutzenberg, Director, The Centre for Civil and Political Rights (CCPR-Centre)
Gerald Staberock, Secretary-General, World Organisation Against Torture (OMCT)
Open Letter and Legal Analysis
Cc.
H.E. Mr. Saleumxay Kommasith, Minister of Foreign Affairs
Ministry of Foreign Affairs, Vientiane, Lao People’s Democratic Republic
H.E. Mr Khammanh Sounvileuth, Minister of Home Affairs
Ministry of Home Affairs, Vientiane, Lao People’s Democratic Republic
H.E. Mr. Phoukhong Sisoulath, Director-General, Department of Treaties and Law
Ministry of Foreign Affairs, Vientiane, Lao People’s Democratic Republic
[1] This Decree only applies to local non-profit associations (NPAs) and does not govern international non-governmental organizations (INGOs) in Lao PDR, which are instead regulated by the Decree on International Non-Governmental Organizations (INGO) (No. 013 of 2010).
[2] Reference was made to the unofficial English translations of the 2017 Decree, published by the Ministry of Home Affairs, available on the Lao Civil Society Knowledge and Information System at http://laocs-kis.org/resources/decree-association-2017-unofficial-english-translation/ and the 2009 Decree, made available by the International Center for Not-for-Profit Law (ICNL) at http://www.icnl.org/research/library/files/Laos/associationsdecree.pdf.
[3] Report of the Special Rapporteur on the rights to freedom of peaceful assembly and of association, Maina Kiai (2012) UN Doc. A/HRC/20/27 (‘A/HRC/20/27’), §53.
[4] Articles 17(1), 19(3) and 22(2) of ICCPR.
[5] See e.g. UN Human Rights Committee (HRC), General Comment No. 34: Article 9 (Freedoms of Opinion and Expression) (2011) UN Doc. CCPR/C/GC/34, §22.
[6] Articles 31, 48, 77 and section 12 of the Decree.
[7] Although beyond the scope of the current letter and memorandum, courts in Lao PDR are not currently independent or impartial and broader institutional and other reforms are urgently required in that regard. See for reference: Joint Submission to UN Human Rights Committee 121st session by FIDH and Lao Movement for Human Rights (LMHR) for adoption of the List of Issues.