
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 the 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-Zarifi 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 |
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) |
Director The
Centre for Civil and Political Rights (CCPR-Centre) |
|
Gerald Staberock Secretary-General World Organisation Against Torture (OMCT) |
|
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.
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