Restrictions to Freedom of Association, Assembly, and Spreading Opinion Post Changes to Community Organizational Law

Abstract


A. Introduction
The concept of the rule of law is characterized by the existence of statutory rules which are positioned as limits on the free actions of state administrators to avoid arbitrary acts of power. In addition, the law also binds the people as a guide for behavior to create order and security. 1 In such an understanding of the rule of law, in essence it is the law itself that determines everything in accordance with the principles of nomocracy and the doctrine of 'the rule of law, and not of Man'. 2 Therefore, the legal basis of existence is control over the actions of the rulers and the people.
It has been explained that the term rule of law does not just want to emphasize the difference between Machtstaat and Rechtstaat, but the most important thing is that the concept of a state will not be run by using power but must be carried out by law. 3 As a state of law, Indonesia has unique legal characteristics. These characteristics can be seen in applying the rule of law concept adopted under the context of the condition of the State of Indonesia, namely as a legal state based on the five precepts of Pancasila. Pancasila is the nation's soul and the philosophy and source of law for the State of Indonesia. Therefore, Pancasila is positioned as a barometer of all state and social activities. Therefore, Pancasila is positioned as a barometer of the constitutional framework. Pancasila is the first consensus-based on constitutionalism which positions Pancasila as the ideology of all state and social activities.
The concept of a state of law Pancasila is the concept of a state of law developed in Indonesia which is based on the Pancasila legal system. 4 As a constitutional state of Pancasila. in Indonesia, the protection of freedom of association, assembly, and expression of opinion is an acknowledgment of human rights and a prerequisite for the operation of democracy. 5 The state must protect human rights, but not all the existence of rights becomes absolute to be fulfilled, and the state can make restrictions on the use of these rights. Some of the limited rights are the right to express opinions, the right to move, the right to assemble, and the right to speak. These rights are limited because they are derogable rights. 6 The characteristics of the Pancasila state law in limiting the freedom of association, assembly, and expression of opinion must be based on the values contained in Pancasila. P-ISSN 2723-2492Volume 3 Issue 1, January-June 2022E-ISSN 2745 In the Indonesian context, the right to associate, assemble, and express opinions have a solid legal guarantee, as evidenced in the 1945 Constitution of the Republic of Indonesia (UUD NRI 1945), which accommodates these freedoms. Thus, the rights of association, assembly, and expression are constitutional rights of citizens. Rights are normative elements that function as behavioral guidelines to protect freedom, immunity and guarantee opportunities for humans to become their dignity. 7 Submission of opinions in accordance with applicable rules is the basis for the rights of citizens in conveying the complaints of their citizens for the sake of prosperity. 8 This constitutional right is contained in Article 28, which reads: "Freedom of association and assembly, expressing thoughts verbally and in writing, is stipulated by law." Then, the same intention is also stated in Article 28E paragraph (3) of the 1945 Constitution of the Republic of Indonesia, which affirms that: "Everyone has the right to freedom of association, assembly, and expression." The phrase "everyone" in a quo article means that anyone in Indonesia is guaranteed the right to freedom of association, assembly, and expression by the constitution. If rights protection is guaranteed constitutionally, restrictions on those rights are also regulated. The constitutional rules can be seen in Articles 28 and 28 J of the 1945 Constitution of the Republic of Indonesia, which regulates association freedom rights and assembly and its relation to the human rights respect of others as stipulated by law.
In principle, rechtsstaats or rule of law aims to limit the authorities (government in the broadest sense) in every attitude and action based on the laws and regulations that apply at a certain place and time to their people. 9 The power to run the government is based on the rule of law (law) and aims to maintain legal order. The administration of government power must be based on law, not orders from leaders or heads of state. The state and other institutions must be based on law and can be legally accounted for in any action. 10 This condition emphasizes that the concept of the rule of law provides a concrete limit that no action or policy will occur or be issued without being based on law because the law is in power.
Then Freidrich Julius introduced a theory about the concept of the rule of law known as "rechsstaat," which explains the elements of the rule of law in the classical sense, namely a) Protection of human rights, b) Separation or division of powers to guarantee rights. that right, c) Government based on statutory regulations, and d) Dispute administrative courts. Then, at almost the same time, the concept of the rule of law emerged, according to A.V. Dicey, who was born under the Anglo Saxon system. As A.V. Dicey stated in his Introduction to the Law of the Constitution, namely, a) supremacy of the law; the absence of arbitrary power (adsence of arbitrary power), in the sense that a person may only be punished if he violates the law. b) equality before the law, c) This argument applies to ordinary people and officials. Guaranteed human rights by law and court decisions. In his opinion, W. A state of law that is side by side with a democratic system has a relationship or shows the understanding that law formation must be carried out democratically. On the other hand, democracy is practiced with the agreed rule of law. Therefore, the rule of law with a democratic system must go hand in hand by instituting the basic principles of democracy and adding the principles of the rule of law. This action is taken so that democracy does not lose its form and direction, and on the other hand, the law does not lose its meaning because it is not democratic. 12 In democratic political ideas there are several elements, including: 13 a) The people become the source of the implementation of the administration of power; b) The implementation of power will be held accountable by the people; c) The people in the exercise of power can be carried out directly or indirectly; d) Every person or group has the opportunity to fill power which is held regularly by peaceful means; e) Changes in leadership through elections in a democratic system are carried out periodically by guaranteeing political freedom to choose or be elected. Democracy allows citizens to freely express opinions, assemble and associate, and so on. To maintain a balance in protecting rights without neglecting social responsibilities, the state issued the Community Organization Law. The balance is arranged to maintain the sovereignty of the country. The existence of the Community Organization Law can strengthen national consensus because it positions Pancasila and the Constitution as the foundation in the life of the nation and state. The philosophical values of Pancasila are agreed upon as arrangements for freedom of association, assembly, and expression. This is intended to create spaces of freedom that are in line with the values of Pancasila, as the philosophical basis for the formation of laws and regulations, the philosophy of national culture, cooperation, and kinship.
Based on the problems above, it is determined that the object specifications in this article will discuss two legal issues. The legal issues include:: How are the concepts of freedom of association, assembly, and expression of opinion in a state of law and Pancasila democracy? How are the rights to freedom of association, assembly, and expression of opinion restricted in the Community Organization Law?
The author examines the concept of limiting freedom of opinion, association and assembly in a democratic legal state that is limited by the law on community organizations. This research is expected to contribute to the concept of implementing, protecting, and enforcing laws on community organizations. The novelty of this research is expected to make a significant contribution to the community, especially the government, to understand the mechanism of law enforcement applied in a democratic rule of law.
The author's research approach is a) conceptual approach, namely by looking at the concepts of law and democracy that are relevant to the research problem. b) Statute approach, namely the analytical normative juridical research approach, research-based on critical thinking by looking at the laws and regulations, especially those relating to freedom of association, assembly, and expression. Which are sourced from the 1945 Constitution of the Republic of Indonesia and Law Number 16 of 2017 concerning Social Organizations. Legal materials used, namely a. primary legal materials consist of statutory regulations, namely the 1945 Constitution of the Republic of Indonesia and Law Number 16 of 2017 concerning Social Organizations; b. secondary legal materials originate from publications on the law in the form of scientific works, books, mass media, journals, and others, and c. tertiary legal material, which is additional data obtained from several sources related to research in the form of the Great Indonesian Language Dictionary, legal dictionary, encyclopedia or web or online journal related to this research. Furthermore, the data obtained were analyzed using qualitative methods and presented descriptively.

B. Discussion
The conception of Freedom of Association, Assembly, and Expression of Opinion in a Democratic State of Pancasila Law. Law and democracy are the two main pillars supporting the state's life. The law is a collection of concepts, principles, principles, rules, and regulations that regulate people's lives. Democracy is a concept that requires that the source of government legitimacy comes from the people and is run by the people (directly or representatively). The government is run for the benefit of the people. Thus, a democratic rule of law avoids administering a government based on the law. This law originates from the aspirations of the people and the needs of the people.
The logical consequence of a country claiming to be a democratic legal state is (should) have the protection of human rights, and one of its protections is the freedom of association, assembly, and expression of opinion. Freedom of expression, association, and assembly provides space for people who want to establish organizations/associations as a medium for self-development and channel aspirations to participate in nation-building.
Freedom of association and Freedom of assembly will grow and develop because of the space for freedom of expression; these situations are part of the dynamics of a democratic society. 14 Even though there is a guarantee of freedom, this freedom is not an absolute right, meaning freedom is still subject to several restrictions set out in the law.
The state system of law and the Indonesian democratic system implements the provisions in the Preamble to the 1945 Constitution, which was born from the identity and life principles of the Indonesian people, known as Pancasila. Furthermore, limiting freedom also uses noble values as the basis for reference.
The statement of a country that uses the concept of a democratic Pancasila legal state certainly requires the existence of Pancasila values in it. s In principle, in a constitutional state, Pancasila positions Pancasila as a normative and constitutive belief framework. The normative nature of Pancasila lies in making Pancasila the source that underlies every legal formation. In that position, Pancasila is domiciled as the basic norm of the Indonesian state (grundnorm). Then the constitutive nature of Pancasila is related to the guiding function in directing the law to goals that will be achieved jointly by the entire Indonesian nation as stated in the Preamble to the 1945 Constitution. 15 Based on certain aspects, the concept of a democratic Pancasila state law is similar to the concepts adopted by countries. However, the difference lies in the five essential elements contained in Pancasila as Indonesian values. 16  The life or lifestyle of the Indonesian people has a distinctive characteristic, namely freedom that is harmonized with social responsibility so that individual freedom is not absolute. 17 Every human being exercising human rights gets justified restrictions if these rights and freedoms injure the rights and freedoms of others. These restrictions are necessary to maintain the stability of national security or public safety, public order, protection of public health or morals, and protection of the rights and freedoms of other parties. Such a lifestyle is certainly very appropriate for the context of Indonesian society, considering that Indonesia is a plural country, 18 This means that collectivist values must be maintained in the living personality of the Indonesian nation.
As a legal state, Indonesia upholds the rule of law. Thus, the laws in Indonesia should ideally guarantee integration for the integrity of the nation. Thus, the procedures for the formation and substance of the law up to the stage of implementing law enforcement must be based on the Pancasila law's principles, which contain elements of diversity. The goal is to maintain the integrity of the nation and state, both territory and ideologically (MD, 2007: 12). One of the primary things that must be avoided in maintaining the nation's integrity is avoiding discriminatory actions based on primordial ties. The attitude of primordialism can lead to the division of ethnicity, religion, race, and inter-group or Suku, Agama, Ras, dan Antar Golongan (SARA) so that it can damage the integrity of the Unitary State of the Republic of Indonesia or Negara Kesatuan Republik Indonesia (NKRI).
The method of formulating the Preamble of the Constitution has demonstrated and taught the freedom of association, assembly, and expression of opinion, which is carried out based on the noble values of the Indonesian nation. The nation's founder showed the spirit of tolerance for the nation's integrity in formulating the first precepts through deliberation. Initially, some groups did not agree with the formulation of the first precept, "Divinity with the obligation to carry out Islamic Syariah for its adherents," Disagreements are conveyed correctly and adequately. In the end, the first precept was canceled and changed to "Divinity of God Almighty ."The result is that the basis of the state is Pancasila which is a state understanding of a religious nation-state, not a religious state (which adheres to one particular religion) and not a secular state (which is devoid of religion).
The noble values of the Indonesian people are crystallized in Pancasila, which contains the premise that deliberation is the best solution and mirrors the Indonesian people's attitude to life. Deliberation is an agreement with an obligation to obey the results of a joint decision. Deliberations indirectly allow the community to participate and express their aspirations in a sympathetic, persuasive manner and are not allowed to impose their will on others and even act anarchically. Deliberations put forward common interests on the basis of Bhinneka Tunggal Ika. If you cannot participate directly in deliberation activities, you can give trust to trusted representatives to carry out deliberation. In other words, the result of deliberation from the democratic process is binding law and demands obedience so that it can build unity and integrity.
National (community). The values above show that there is recognition and protection of individual rights in the concept of a democratic Pancasila legal state. Still, in practice, individual freedom to the fullest is not justified because the Pancasila state law seeks to build harmony and balance between individual interests and the interests of the individual. The state can 17  intervene in national issues under the principles of Pancasila. This empirical-sociological basis is proof that Pancasila has a characteristic that contains the noble values of the Indonesian nation because its existence is not forced to be adapted to Indonesian lives. Thus, these values continue to develop in the nation's culture.

Restrictions in Law Number 16 of 2017 concerning Stipulation of Government
Regulations in Lieu of Law Number 2 of 2017 concerning Amendments to Law Number 17 of 2013 concerning Community Organizations to Become Laws The democratic system is realized by the existence of people's sovereignty as evidenced by the open space for people's involvement and participation in enjoying their fundamental rights freely. As a state of law, the people's freedom to participate and enjoy fundamental rights must be regulated by the constitution. These rights consist of freedom expressed by the community, such as the right to express opinions and assemble and associate. Community organizations are a forum for implementing freedom of association, assembly, and opinion. In exercising this freedom, there are restrictions on rights to respect the rights of others. If rights protection is guaranteed constitutionally, then restrictions on those rights are also regulated. This can be seen in Article 28 J of the 1945 Constitution, namely the obligation to respect the human rights of others and the obligation to comply with the restrictions stipulated by law.
The reason behind the issuance of the Government Regulation in Lieu of Laws to replace Law Number 17 of 2013 concerning Social Organizations is because of limitations regarding teachings that are contrary to Pancasila and the 1945 Constitution, which in Article 59 paragraph (4) is only limited to atheism, communism/marxism-Leninism. Whereas in its development, there are mass organizations that do not understand atheism and communism/Marxism-Leninism but openly in public take actions or actions that lead to efforts to replace/change the ideological basis of Pancasila and the constitutional basis of the 1945 Constitution.
After issuing the new Community Organization Law, the content of Article 59 of the Community Organization Law has stronger control regarding the prohibition of mass organizations to carry out hostile actions against ethnicity, religion, race, and class. The article regulates restrictions on freedom of thought, expression, and action against individuals/groups to harmonize with social responsibility and maintain the value of the third precept, namely the unity of Indonesia. Community Organizations are also not allowed to carry out acts of violence that disturb the peace and public order. This violence includes destructive actions, carrying out activities that are the duties and authorities of law enforcement regulated by law, carrying out separatist actions that threaten the sovereignty of the Republic of Indonesia, and adhering to, developing, and spreading the teachings of the Republic of Indonesia. or understanding that is contrary to Pancasila.
Limitations in the previous law may result in changes to the ideal basis of Pancasila and the constitutional basis of the 1945 Constitution. They can disrupt the unity and integrity of the nation in maintaining the integrity of the nation and the Unitary State of the Republic of Indonesia. Limitations in the previous law may result in changes to the ideal basis of Pancasila and the 1945 Constitution. Disruption of the constitution means damage to the unity and integrity of the Republic of Indonesia. After all, the procedure for imposing sanctions on mass organizations declared to have violated Pancasila and the 1945 Constitution is considered ineffective and inefficient because the judicial mechanism takes a long time.
Through Community Organization Government Regulation in Lieu of Law, the government seeks to take practical steps by incorporating the consrarius actus principle in responding to the actions of mass organizations that have the potential to cause social conflict The contrarius actus principle is the principle regarding the cancellation of state administrative decisions made by state administrative officials in issuing the state administrative decisions. Article 61 paragraph (3) of the Community Organization Law states that administrative sanctions in the form of registered certificates and legal entity status revocations are direct sanctions and can be immediately implemented by the Minister of Home Affairs or the Minister of Law and Human Rights. The article shows that full authority is given to the executive agency to revoke the legal entity status of a Community Organization without going through a judicial mechanism first. This is different from the previous rule that the sanction of revocation of legal entity status is imposed after a court decision that has obtained permanent legal force regarding the dissolution of a community organization's legal entity.
The prohibition or dissolution of mass organizations, as regulated in Law Number 16 of 2017 concerning Social Organizations, is a form of limiting the right to freedom of association. The mechanism for restricting freedom of association, assembly, and expression of opinion shifts from the previous one through the judicial process to a judicial process that can be carried out after using the contrarius actus principle or after the revocation of the legal entity status of the organization concerned. This mechanism is in line with elements of the European Continental and Anglo Saxon versions of the rule of law, namely the existence of administrative justice and the protection of human rights. Administrative justice aims to resolve disputes between rulers and their people or State Administration (TUN) officials and their citizens so that human rights are protected from arbitrariness. These two mechanisms are instruments for enforcing the rule of law, equally well applied in a democratic rule of law. Restrictions on freedom of association, assembly, and expression of opinion are carried out under the principles of a democratic rule of law because the authority to dissolve a mass organization still involves the role of other state institutions. So that this can prevent and avoid authoritarian government actions or attitudes and, at the same time, avoid the existence of community organizations whose missions or movements can disrupt stability or threaten the integrity of the nation.

C. Conclusion
Pancasila seeks to build harmony and balance between individual interests and national (society) interests based on the discussion above. Therefore, Freedom in Indonesia is not an absolute right, meaning freedom is subject to some restrictions set out in the law. to the 1945 Constitution, which was born from the personality and philosophy of life of the Indonesian people, commonly known as Pancasila.
Then the widespread understanding that has principles and activities that are contrary to Pancasila and the 1945 Constitution of the Republic of Indonesia triggers the birth of Law Number 16 of 2017 concerning Stipulation of Government Regulations in Lieu of Law Number 2 of 2017 concerning Amendments to Law Number 17 of 2013 concerning Community Organizations Becomes Law. There are limitations regarding teachings contrary to Pancasila and the 1945 Constitution, which in Article 59 paragraph (4) is only limited to atheism, communism/marxism-Leninism. Whereas in its development, there are mass organizations that do not understand atheism, communism/Marxism-Leninism but openly in public take actions or actions that are intended to replace/change the ideological basis of Pancasila. That's why the government expanded the prohibition on mass organizations to change the ideological basis of Pancasila and chose to make changes in the mechanism for revocation of legal entity status by using the contrarius actus principle to make it more effective and efficient in taking action.

Suggestion
First, freedom of association, assembly, and expression of opinion must be directed under the values of Pancasila and the living personality of the Indonesian nation. Freedom must be an intermediary that can lead to the goals achieved together within the framework of a unitary state.
Second, Restrictions on Freedom of association, assembly, and expression of opinion do not close the control mechanism through the judiciary. Although it does not close the control mechanism through the judiciary, namely by suing the KTUN through the State Administrative Court, the Government Decree regarding the dissolution of the Community Organization remains valid before a judge's decision has permanent legal force (presumption of legality). Therefore, the government must conduct an in-depth study that shows the abuse of freedom that is contrary to Pancasila, which has the potential to threaten national security and order. On the other hand, the state must guarantee the protection of freedom of association, assembly, and expression of opinions for mass organizations that can comply with all rules and restrictions following the functions of mass organizations as contained in the Community Organization Law.