Decree’s ‘Big Brother’ Powers Undermine Groups’ Independence
The Correa administration has damaged free speech, expending a lot of its energy focusing on the media, and now it’s trying to trample on independent groups. Officials can now essentially decide what groups may say or do, seriously undermining their role as a check on the government.
(Washington, DC) – Ecuador should revoke a presidential decree that grants far-reaching powers to the government to oversee and dissolve nongovernmental organizations, Human Rights Watch said today.
On June 4, 2013, President Rafael Correa adopted a decree that creates new procedures for Ecuadorean nongovernmental organizations to obtain legal status and requires international organizations to undergo a screening process to seek permission to work in Ecuador. The decree also grants the government broad powers to intervene in groups’ operations. It gives the government authority, for example, to dissolve Ecuadorean groups for “compromis[ing] public peace.”
“The Correa administration has damaged free speech, expending a lot of its energy focusing on the media, and now it’s trying to trample on independent groups,” said José Miguel Vivanco, Americas director at Human Rights Watch. “Officials can now essentially decide what groups may say or do, seriously undermining their role as a check on the government.”
Correa presented a draft proposal of a similar decree in December 2010, but it was shelved after criticism from local and international groups.
Under the decree, the authorities are creating an electronic Unified System of Information of Social Groups, which would store documentation from organizations. Ecuadorean organizations are required to file a series of documents to obtain legal status and approval of their by-laws. Groups have one year from the publication of the decree on June 20 to present the required paperwork.
Government officials from ministries related to the work done by the group – for example, the Health Ministry if the group works on health-related topics – review the documentation and have the authority to grant or deny the group legal status. Once they obtain legal status, groups must inform authorities when they select directors and a legal representative and if they add or remove members. They must also provide the government with information about projects with international funding, and get government authorization to revise their by-laws.
The decree limits groups’ ability to choose who can be a member or participant, undermining their right to free assembly, Human Rights Watch said. The decree imposes on Ecuadorean groups an obligation to respect the “right” of anyone who “due to their place of residency or having a specific labor, institutional, union, occupational, or professional qualification directly related to the objective or nature and/or purposes of the organization, is interested in participating in it.” Groups with certain territorial coverage or those that are “the only ones in their location” may not reject people with a “legitimate interest” in participating.
The government officials who grant a group legal status have broad monitoring powers to make sure that it only carries out ‘authorized’ work. Officials may dissolve a group if they consider the organization is “mov[ing] away from the objectives for which it was created,” or if it is involved in activities that “compromise public peace” or “interfere with public policies that undermine national or external security of the state.”
International groups seeking to work in Ecuador must request permission from the Technical Secretariat of International Cooperation, providing information on the “purposes and work they wish to carry out in the country.” They have to provide documents that “demonstrate [their] legal existence,” including their by-laws in Spanish. The government will then ask Ecuadorean embassies and consulates in countries where the international group operates for information about the “legality, solvency, and seriousness” of the organization. Based on this information, it will decide whether to sign an agreement with the international group to authorize it to work in Ecuador.
The decree also imposes vaguely defined prohibitions on international groups – for instance, they are not allowed to conduct activities that “undermine security and public peace.” It also allows government officials to monitor a group’s activities “to ensure the true fulfillment of its obligations” and to revoke the international agreement if they decide the group violates it.
On August 7, a lower court judge rejected a constitutional challenge filed by Fundamedios, an organization that monitors freedom of expression, against the decree. The group has filed an appeal, which remains pending before the courts.
Under international law, however, as part of their duty to promote and protect human rights, governments must ensure that human rights defenders are allowed to pursue their activities without reprisals, threats, intimidation, harassment, discrimination, or unnecessary legal obstacles. The Inter-American Court of Human Rights held in 2003 that “[r]espect for human rights in a democratic state depends largely on human rights defenders enjoying effective and adequate guarantees so as to freely go about their activities, and it is advisable to pay special attention to those actions that limit or hinder the work of human rights defenders.”
The rights to freedom of expression and association may be subject to limitations, but the limitations must adhere to strict standards so that they do not improperly impede the exercise of those rights. Any restrictions should be “prescribed by law, necessary in a democratic society, and proportionate to the aim pursued” and should not “harm the principles of pluralism, tolerance and broadmindedness.”
Article 16 of the American Convention on Human Rights states that the right of freedom of association “shall be subject only to such restrictions established by law as may be necessary in a democratic society, in the interest of national security, public safety or public order, or to protect public health or morals or the rights and freedoms of others.”
In 2012, the UN special rapporteur on the rights to freedom of peaceful assembly and of association has called on countries to ensure that these rights “are enjoyed by everyone and any registered or unregistered entities” and that no one is subject to “harassment, persecution, intimidation or reprisals” for exercising them. Moreover, the rapporteur has stated that, “[s]uspension or involuntary dissolution of associations should be sanctioned by an impartial and independent court in case of a clear and imminent danger resulting in a flagrant violation of domestic laws, in compliance with international human rights law.”
Human Rights Watch has documented similar restrictions in other countries. For example, in December 2012, the government of Russia adopted a law that bans Russian nongovernmental organizations that either engage in “political” activities and receive funding emanating from the US, or engage in activities that threaten Russia’s interests.
In Bahrain, a law prohibits nongovernmental organizations from “engaging in politics” and lets authorities dissolve organizations more or less at will. In Uganda, a Board for Nongovernmental Organizations, overseen by the Internal Affairs Ministry, has the authority to grant or refuse registration and to revoke registration if the board decides it is “in the public interest.” In Venezuela, a 2010 law blocks organizations that “defend political rights” or “monitor the performance of public bodies” from receiving international funds. It imposes fines and sanctions on organizations that receive such funds, and allows the government to expel foreigners who “offend institutions of the state, top officials or attack the exercise of sovereignty.”
“Instead of adopting reasonable measures to facilitate the work of nongovernmental organizations, the Correa administration is following the lead of countries such as Russia, Bahrain, Uganda, and Venezuela, which have imposed unjustified restrictions that violate fundamental rights and limit spaces that are critical to democratic society,” Vivanco said.