In the past five years, civil society organizations and the Palestinian National Authority have conducted a serious, intricate and rational dialogue over a set of principles that aim to regulate the relationship between both sides. The results of these discussions and meetings was the formulation of what is known as The Law of Charitable Societies and NGOs. Representatives from all civil society organizations, such as trade unions, clubs, charitable societies and development institutions participated in the meetings and dialogues.
We believe that the current draft law is an appropriate and effective legal framework to regulate the relationship between the civil society and the Palestinian state upon its declaration. On a methodological basis, and instead of general and abstract discussions of the rights and duties of civil society, we thought it best to focus on a particular document which is the Palestinian NGOs Draft Law in order to review its contents, in terms of rights and duties of civil society organizations towards reaching a clear concrete framework on the rights and responsibilities of civil society organizations. Towards that goal, the Palestinian NGOs network, in cooperation with the general federation of charitable societies, formulated a set of important principles that constituted the cornerstone of the current law approved by the Palestinian Legislative Council in the third reading; it was also voted on once again after feedback on it by the executive authority in the PLC session on May 24, 1999.
The standpoint document formulated by the Palestinian NGOs included the following elements:
- The freedom of establishing organizations and working within them is a human right that cannot be harmed. It constitutes the basic pillar for the participation of individuals in serving their society according to their various expertise. There will never be a democratic society if such a right is not recognized and guaranteed by law.
- To recognize the various types and patterns of Palestinian NGOs and the broadening of the definition in the law to include all types, especially popular organizations, informal groups, non-profit vocational centers, specialized development agencies, ..etc., in addition to other non-profit institutions.
- To recognize the independence of Palestinian NGOs and their right to develop their goals and programs in line with the needs and priorities of the Palestinian local community.
- To recognize, through the law, the various roles of NGOs, especially giving them opportunities to affect general policies and to empower and educate the local community; to ensure their effective participation in drafting various development schemes and programs and not to limit their work to offering services and social-charitable activities.
- To recognize the right of intellectual and developmental pluralism, as well as the right of Palestinian NGOs to set their goals, programs and decisions based upon the needs of the local community and the decisions of their reference committees.
- To recognize the right of Palestinian NGOs to contact various international NGOs and semi-official organizations and receive the required funds to implement their programs.
- To recognize the legitimacy of all existing institutions and consider them as registered ; to request from them to amend their statuses in line with the proposed law.
- The law must take into consideration the importance of transparency, accountability and professionalism in the work of NGOs through submitting regular financial and program reports, not only to the PNA, but also to the Palestinian society and the beneficiaries from their services. The Document of Principles issued by the NGOs stipulates the need to reinforce transparency, democracy and accountability in the work of NGOs.
Based on the principles stated above, three major and intertwined principles were stressed upon that constitute the solid base towards formulating the content of the law which, we believe, creates the legal, ethical and practical framework to regulate the relationship between civil society and the aspired institutions of the Palestinian state. On its own, this law cannot constitute the entire organizational framework of rights and duties of the civil society. In fact, there are other legal frameworks, such as the Basic Law, the Law of Political Parties, the Law of Publications, the Law of Higher Education, the Law on Public Meetings, the Law of the Independence of the Judiciary System and the Law of Public Freedoms and other important laws that greatly impact the efficacy and sustainability of the Palestinian civil society. The aim of approaching the Law of NGOs is merely for "concentration" and to study a case in point instead of general and public discussions.
The law adopted a broad definition for the activities of private organizations; it included all institutions, organizations or federations with "an artificial personality" that are established by an agreement between at least seven individuals to achieve legitimate objectives for the public interest, without the goal of achieving any kind of profit that can be divided among the members. In reality, this concept might exclude the political parties from its scope of jurisdictions due to the presence of the law of political parties.
In all cases, the law is relies on three major and related principles:
- The legitimacy of establishing civil society organizations and guaranteeing the continuity of their work.
- The independence of Palestinian NGOs.
- Guaranteeing the transparency and accountability of NGOs.
Those principles must be dealt with as one integral package since it forms an acceptable framework for both the civil society and the state; it also meets the interests of both sides. Legitimacy and independence are basic elements in civil society and they should be viewed as natural rights , while transparency and accountability must be considered a basic responsibility of the entire civil society; it is also a natural right of the Palestinian state under the rule of law.
- Legitimacy of establishing NGOs and their sustainability
The legitimacy of "Palestinian NGOs" springs from a "natural, civil and political right" pertaining to the rights of citizens to gather, their right to join associations and institutions to defend their rights in confronting the oppression of the state, and to find space for individuals and groups to work outside the realm of the state.
Most international conventions, international law and various human rights conventions are in agreement over this principle. To this effect, the proposed law, or the proposed set of laws, might broaden or narrow the horizon in building a strong, transparent and democratic civil society, thus reinforcing the opportunities of citizens and local community participation in formulating rules, laws and public policies. Reinforcing Palestinian citizen participation in public policy and the affairs of the state should not arise from subjective desires or good intentions, but from the nature of the "contract" arrived at between the state and the citizens, as expressed in the constitution or the Basic Law, and its reflections on the "government system and the administration of public life." Since the Basic Law has not been ratified yet, it is very difficult to define and propose a clear relationship between the civil society "the society of citizens" or "those governed" and the state or "those governing." In fact, there has been no clear relationship between the "public and private will".
According to Jean Jacques Rousseau in his book "The Social Contract." In any case, in the absence of the Basic Law, "A constitutional cadre and work counselor", abiding by the partial laws is very important and necessary to formulate the general framework for the relationship between the rulers and those ruled.
How did the articles of the Palestinian NGOs Law deal with the principle of NGO legitimacy
The NGO Law stipulates that the Ministry of Justice is the administrative term of reference for NGO activities as it is the closest to realizing the concept of justice, fairness, political, economic and social neutrality; and because of the presence of the "Attorney General" in this ministry, including his immunity and clear independence from other government apparatuses. Choosing the Ministry of Justice is a broader embodiment of the concept of "rights" and rule of law.
Registering at the Ministry of Justice will therefore encourage Palestinian citizens to establish new organizations and secure the sustainability of existing ones far from any state oppression. Proposing the Ministry of Interior, for example, is a clear threat to the concept of "legitimacy" and the natural right of citizens to join associations because this entails a broader intervention "through the security apparatuses" in the affairs of those societies.
Citizens will fear joining such organizations which may be considered as prohibited activities. The broader principle of legitimacy in this context is through registering with the judicial authority and not the executive authority. Therefore, the Palestinian NGO Network proposed to register at the "notary public" in courts and not at any ministry in the executive authority. The judiciary is the "arbiter" between the civil society and the executive authority. NGOs must never be under the administrative jurisdictions of the state. We hope that this situation will be rectified upon the establishment of the independent Palestinian state.
The second article that reinforces the legitimacy of private organizations, as stipulated in the proposed law, deals with the process of registering NGOs. Using the term "registering", that is, limiting the jurisdiction of the ministry to inspection of formal procedures, instead of the term "licensing", i.e. inspection of the application forms according to the goals, perspectives and individuals, is more appropriate towards reinforcing the rights and legitimacy of the NGOs. The authority to decide on the legitimacy of the goals and nature of the individuals establishing the organizations is that of the judiciary and courts. In addition, setting a deadline after which the ministry must give its opinion whether to register an organization or not is also a very important issue to facilitate forming such organizations. Moreover, simplifying the registration procedures will give a chance for all citizens to join associations, thus increasing the chances of building a civil society.
There is also another important issue related to legitimacy and sustainability which is the legal framework for dissolving the organizations. The law proposes a series of essential regulations that limit the power of the executive authority in dissolving these organizations, putting the matter in the hands of the judiciary system and courts. However, the current/Ottoman law and its various amendments stipulate the "right of the minister" to dissolve organizations in specific cases, these being very vague, thus allowing various interpretations. This situation gives the minister broad jurisdictions to dissolve the organization.
Moreover, there are many other items in the law that can strengthen the legitimacy of NGOs. The most important perhaps is the "broad freedom" granted to NGOs in their relationship with the local community in terms of organizing festivals, conferences and seminars to collect donations and offer services. As it is widely known, the major source of legitimacy for NGOs is gained through its local roots and relations with the citizens. The current law limits, to a great extent, the relationship between NGOs and their local and grassroots terms of reference, which can make those organizations lose one of their basic rights, legitimacy.
- Independence of Civil Society Organizations
The principle of the independence of the NGOs is a basic component for a healthy and sound relationship between the "state" and civil society. Independence is a necessary condition for a strong and effective civil society that can protect the interests of its individuals and institutions in the context of a clear contract with the state through the government administration. Independence means the right of civil society institutions to develop their own goals, strategies and activities based on the interests, needs and priorities of their popular bases and their members, and not necessarily according to the needs and priorities of the state. This concept contradicts with the widespread concept that civil society organizations must be formed only to fill the gap which the state has failed to fill; it also contradicts with the concept of state domination over all societal apparatuses "The Arab World Pattern", such as the media, press, local council and societal institutions. The principle of independence is in total harmony with the principle of democracy, where each sector in the society can have its own viewpoint.
Independence cannot be limited to distinct goals, objectives, perspectives, strategies and developmental patterns. It must go beyond this towards organizational independence from the state apparatuses and the right of individuals and groups to establish their own institutions to be able to achieve their goals, and to choose the appropriate individuals to manage and head these institutions without the interference of the state. The principle of Palestinian NGO independence is reflected in many of the articles of the NGO Law, which is ratified by the PLC.
Article 9, for example, stipulates that no organization or private institution has the right to own transferable or non-transferable funds to achieve the goals of the commission "organization." Article 23 stipulates that "the basic law of the commission or organization determines the structure of the general assembly of the commission or organization, in that it consists of members who fulfilled their commitments according to the basic law.. the general assembly is responsible for setting policies and general guidelines for the commission or the organization and for the election of the board of directors according to its basic law." The article also considered the commission or the organization as an independent personality with an independent financial trust.
It is clear that the nature of the contract existing between the state and the civil society is based on the independence of NGOs and the need to respect this independence by the executive authority.
- Transparency and Accountability in the work of Civil Society Organizations
The principle of transparency and accountability is a substantial and comprehensive principle which is the basis for a healthy relationship between the state and the civil society. The state must answer to its citizens; the state must submit to its citizens sound reports and statements about its work. The civil society is also responsible in front of its commissions and the state. We cannot talk of a comprehensive system of accountability which is implemented by one party. Accountability and transparency are among the most important issues of sound governing; they are part of the ethics of civil society. There can be no real democracy without accountability and transparency.
The civil society must submit regular reports about their activities and budgets to the reference committees and to the state in the context of an agreed upon professional, financial and administrative process. "State" monitoring of the activities, goals and budgets of the civil society does not mean a system of monitoring and inspection or a system of reward and punishment; it is a professional process that aims to review and assess if the activities of the institutions correspond to their financial and administrative plans. Monitoring also tends to ensure that no special privileges or interests arise which contradict with the goals and definition of the NGOs.
Moreover, the basic roles of civil society deal with broadening the areas of democracy and its implementation and the respect for human rights. Democratic development cannot occur without consolidating the principles of transparency and accountability.
The Palestinian NGO Law includes several legal articles pertaining to the principles of transparency and accountability. Article 6 stipulates the following: "The competent ministry will assume the responsibility of following up the work of the associations or organizations according to the provisions of this law. The ministry has the right to follow up the activities of any institution or organization according to a written decree issued by the ministry in each case to ensure that funds are spent for the purpose they were allocated according to the provisions of this law and the system of the organization ¦ etc."
The reader will notice that focus in the preceding pages was on the relationship of the civil society with the executive authority more than the relationship between the civil society and the state, which also includes both the legislative and judicial authority. For further benefit, I will include some of the paragraphs pertaining to the relationship between the civil society and both the legislative and judicial authorities.
The Relationship between Civil Society and the Legislative Authority
A special relationship has emerged in the past four years between civil society organizations and the legislative authority, represented in the legislative council. This relationship is based on the desire of civil society institutions for real participation in phrasing the set of regulations, laws and public policies that will organize Palestinian public life, and which will pave the way towards establishing the independent Palestinian state. These organizations effectively participated in the deliberations and discussions and in lobbying campaigns, thus achieving great success in this respect. They were able to develop an organized system of consultation with the PLC based on real partnership, which is expected to continue and develop after declaration of the state. This is especially in the presence of an "elected Palestinian parliament" that works on clear professional bases, after benefiting from the lessons of the past four years.
Hence, the basic responsibility of the civil society is to participate effectively in pressuring the PLC to ratify fair an democratic policies that meet the interests, priorities and needs of the local community. It is the civil society s right that the PLC respond to its interventions, suggestions and opinions and to give it an opportunity to participate in its sessions and deliberations. Such a pattern requires a proper mechanism for the "exchange and channeling of information." This allows the PLC to be informed of the problems and interests of the civil society, and to maintain its independence in confronting the traditional inclination of the executive authority to interfere in its work and activities. There is a major responsibility to be assumed by the civil society towards the PLC, pertaining to its assistance in monitoring the violations of the executive authority in the areas of public freedoms, economic, social, civil and political rights, in addition to monitoring government performance and the extent to which it conforms with the Basic Law and the agreed upon economic, social and political laws.
Having the economic and social rights movements and the political and civil rights movements, in addition to the anti-corruption committees and the teachers, students, and engineers movements, is the guarantee for the executive authority to abide by the agreed upon laws and regulations. They are the natural partner of the PLC which has the huge responsibility of monitoring and assessing the activities of the government and reinforcing its accountability.
The duties of the civil society is to maintain the principle of separation between the authorities and strengthen the PLC to confront the traditional inclination of the executive authority to marginalize the PLC role and increase its power.
Everything previously mentioned proves that a new outlook and conceptual framework are required to regulate the relationship between the civil society and the PLC, based on total partnership and the right of the civil society to question the PLC since it is one of its electoral terms of reference.
The Relationship between the Civil Society and the Judiciary Authority
We believe that a balanced and institutionalized relationship must emerge between the civil society and the judicial authority after the establishment of the independent Palestinian state. During the interim phase, no professional work relationships were formed between the civil society and the judicial authority. In terms of consultations between the civil sector and the judicial authority, the same situation persisted. In brief, there was no joint experience.
There are numerous areas in which strong relations between the civil society and the judicial authority can be established after the creation of and independent Palestinian state. These areas can be summarized in the following points:
- The civil society must work on securing the independence of the judiciary and work on strengthening and reinforcing the judiciary system.
- The civil society must ensure the existence of a professional judiciary apparatus, to be able to offer unique and quality services to the Palestinian society.
- The civil society must monitor the performance of the judiciary apparatus in a manner that corresponds with the principles of justice and human rights.
- To work with the judicial system on respecting the constitution, public freedoms, civil, political and human rights.
On the other hand, the judiciary apparatus is required to protect the civil society and intervene when the civil society is subject to violations by the executive authority in a manner that contradicts with the laws in effect.
The Palestinian NGO Law includes several articles that ensure the intervention of the judiciary in case a dispute arises with the executive authority; for example: the fourth article pertaining to the registration of organizations and societies; the article stipulates the following: "In case a decision is issued by the minister to reject registration, the decision must be supported with a sound reason and the applicant then has right to dispute the decision in the competent courts in a period not exceeding 30 days from the date he/she received the rejection in writing."
There is also the article pertaining to dissolution of the organization; article 38 stipulates that "In the case the minister issues a decision to cancel the registration of an organization, the decision must be supported with a reason and handed in writing; the organization has the right to dispute the decision before the competent courts".
Finally, a clear contractual relationship must take place between the civil society and the future Palestinian state. The essence of this relationship must be based on mutual agreement with a guarantee of legitimacy, existence and the independence of civil society institutions and their "natural and civil rights." The civil society must support the legitimacy of the state and its institutions in the context of a free, transparent, democratic and fair system.
* Director, Bisan Centre for Research and Development .
Source: ATF Shu‘un Tanmawyyeh Issue 23