LAW AND CIVIL SOCIETY IN THE SOUTH
PACIFIC Challenges and Opportunities;
International Best Practices; and Global Developments
Stephan E. Klingelhofer, President
and
David Robinson, Member of Advisory Council
The
1126 16th Street, NW, Suite 400 113
Creswick Terrace
sklingel@icnl.org david.robinson@vuw.ac.nz
(202) 624-0766 (64)
4 4759275
Global Considerations
In much of the world during the last decade
and a half, there has been a phenomenal growth in the organs of civil society.
This has resulted, in part, from the emergence of more democratic forms of
government in such areas as Central and
Justifications for the
Civil Society Sector
The first question that needs to be addressed
is whether it is worthwhile to permit and encourage the formation and
activities of formally registered civil society (or “not-for-profit”)
organizations (CSOs). There are a series of benefits that accrue to a society
in which a healthy civil society sector operates. These benefits can be
classified as either socio-political or economic.
There are four basic socio-political
benefits of a vigorous not-for-profit sector.
·
First, the
existence of civil society organizations (CSOs) gives greater meaning to
freedom of assembly by enabling individuals to participate in the work of a
group and to freedom of speech by increasing the impact of individual voices.
·
Second, CSOs
promote pluralism and, as a result, tolerance by addressing a wide variety of
interests, thus creating diversity. Conversely, the existence of such diversity
may promote tolerance as people learn to respect the divergent interests of
other people when these interests are expressed through a legal framework for
the groups.
·
Third, the existence
of this sector promotes social stability and the rule of law. Rather than
driving a group underground, for example, the laws for the not-for profit
sector allow them legal existence and the protection of the law, so long as
they meet minimal standards of legality and responsible behavior, thus
providing an essential safety valve for social pressures. By permitting,
regularizing, and protecting the expressions of different values and interests,
laws for the not-for-profit sector provide social stability and respect for the
rule of law.
·
Fourth, the
not-for-profit sector supports and encourages democracy. As discussed above, a
vigorous not-for-profit sector that is protected yet accountable helps to build
pluralism, social stability, public trust, and respect for the rule of law. All
of these are necessary for democracy to flourish.
As for economic justifications, the
not-for-profit sector can frequently provide goods and services more
efficiently than can the government. Their costs are typically lower because,
unlike the government, they can attract volunteers and donations. In addition,
competition for funding among CSOs leads to lower costs and higher quality
services. Locally based CSOs also tend to have the best information about the
needs of the people to be served. These reasons apply with particular force in
countries formerly ruled by totalitarian regimes. There is, in fact, interest
in using CSOs to break up the monolithic social and economic structures that
have dominated these societies for so long. There is now great interest in
using CSOs to accomplish similar privatization of social and cultural
organizations.
Another economic benefit of the
not-for-profit sector is its ability to address market failure. Government
employees are simply not able to anticipate and provide all the public goods
and services desired by the citizenry. Laws permitting individuals and groups
to come together to fill the gaps created by this market failure assure that
public goods and services to which individuals are willing to devote their own
resources will be provided.
The third economic justification for the
existence of the non-profit sector is the support the sector provides for the
market economy. There is a growing body of evidence that market economies flourish
best where there is pluralism, social stability, public trust of institutions
and respect for the rule of law. The non-profit sector encourages all of these
factors, thus providing significant support for the growth and sustenance of
market economies.
The Need for a Legal
Framework
Given the benefits of the not-for-profit
sector, the question arises of how best to support its growth. Establishing a
sensible legal framework for the foundation and function of these organizations
is a necessary first step. The manner a country will use to regulate the
non-profit sector will depend to a great extent upon the legal structure
already in place.
There are basic differences between the
civil law and common law systems. Civil law focuses on the structure of the CSO.
Based on Roman law concepts many civil law countries permit two organizational
forms, associations and foundations. Associations (universitas personarum) are
groups of individuals who strive for a common end. Foundations (universitas
rerum) are organizations with an endowment committed to its purposes. The
common law focuses on the purpose of the organization. The common law permits
the incorporation of various types of companies, societies, associations, etc.,
so long as the purposes of the organization are deemed to be charitable.
Various definitions of the term "charitable" have developed within
the common law countries. This is due in part to cultural variations among
common law countries, which recognize different activities as serving public benefit.
It results also from the common law system of judicial precedent. As cases
concerning charitable purposes are adjudicated, with judges deciding these
cases on the facts presented, the definition of charitable purpose will evolve.
Issues and Principles
Generally Covered by a Legal Framework
Legal frameworks for civil society
organizations generally address several particular issues. These include the
way an organization comes into existence, the regulation of their existence
(including transparency and accountability), taxation, and particular
activities of these organizations (such as economic and political activities).
Two basic types of not-for-profit
organizations are distinguished by purpose. Public benefit organizations
address needs of the public at large or significant portions of the public. By
virtue of the tasks they perform, they are permitted certain privileges.
However, in granting such privileges, the state has a strong interest in
ascertaining whether public objectives are being accomplished. Mutual
benefit organizations do not directly serve the public benefit. They
generally do not receive the same range of privileges or compliance
requirements conferred on public benefit organizations. This distinction
between public benefit organizations and mutual benefit organizations is
fundamental.
The distinction between public and private
benefit is particularly crucial for determining tax benefits conferred by the
state. The core treatment of the public benefit issues is usually found in the
tax policy and codes.
In some countries, the tax status of an
organization depends on its classification under the non-profit laws.
Authorities in these cases may have a greater right or obligation to scrutinize
the organization during the registration process. In other countries,
registration is not directly related to taxation.
The legal significance of public benefit
status is to ensure public accountability. Organizations receiving preferential
tax or other treatment usually must demonstrate their eligibility. Authorities
have a legitimate interest in ensuring that non-profit organizations that claim
to serve the public actually do so. They also have a responsibility to make
sure that tax or other benefits are not wrongfully claimed or used.
A key issue in establishing public benefit
status involves the decision making process -- what body makes the
determination of public benefit status and what procedures should be followed?
There are three models for determining public benefit status. The first involves
supervision by national tax authorities or an administrative agency. This model
is in place in the
Public benefit status can become an issue for decision-makers at various
stages in the life cycle of an NPO. The issue can be considered at the
registration stage, the stage of renewal of public benefit status, or when the
tax authorities revoke public benefit status in the event of failure to comply
with legal requirements.
Courts may be the most likely source of
apolitical and independent judgments concerning public benefit status. However,
judges have discretion, which could create uncertainty or take the law in
unforeseen directions. In addition, unless the court system is run efficiently,
with an eye to precedent based upon accessible records of previous decisions,
there is a significant chance of contradictory rulings, particularly in
local/regional jurisdictions. Local authorities may be more knowledgeable about
non-profits which they oversee and the prevailing conditions, and thus able to
make better-informed decisions. On the other hand, national authorities are
more likely to apply standard rules, and avoid bias resulting from close
personal contact. Yet national authorities may have their own predisposition towards
the major players, which could work to the detriment of the community-based
organizations that often form the backbone of the not-for-profit sector.
An important determination for the law
concerning the not-for-profit sector to make is which activities count as
public benefit activities. Some countries, such as
Common law and civil law countries diverge
concerning the types of legal forms that qualify as public benefit
organizations. Some civil law countries such as
CSOs can demonstrate their eligibility for
tax preferences at three different stages, depending upon the choice of the
government. With a priori qualification, a CSO fulfilling the specified
criteria for registration automatically gets tax benefits. In this case,
registration is the principle challenge and often requires investigation.
Certification can be independent of and subsequent to registration. In other
instances, scrutiny of public benefit status comes only when the NPO files its
taxes and claims benefits. This type of certification is usually found in
countries in a transitional state without fully developed tax procedures.
Even terminology can make the determination
of public benefit status unclear. "Public" lacks a clear definition.
Consequently, it is difficult to distinguish between organizations that qualify
for public benefit status and those that do not. Even "benefit" is
ambiguous. Employees of public benefit organizations benefit from salaries.
Usually, the terms are defined explicitly or implicitly in the governing law.
Establishment and Regulation
There are several approaches to drafting
laws governing the existence of various kinds of not-for-profit organizations.
The legal form of any non-natural entity should enable the public and the
government to determine whether it is a commercial entity or a non-profit
organization. If the entity is a non-profit, its status as a public benefit
organization or a mutual benefit organization should be made clear. Clarity
about the general purpose of an organization is necessary to enable the state to
determine easily what rights, duties, powers and immunities apply to an
organization. Ideally, the law should contain a broad statement of purposes for
which a non-profit organization may be organized. The law must also protect the
rights of citizens to establish and operate not-for-profit organizations for
those purposes.
In order for regulation to occur, an
organization first has to come into existence. To do this, it must in some
fashion notify the state of its interest in acquiring legal personality. The
state will want to determine what requirements an organization must fulfill
before it is granted the rights and benefits of legal personality. This
registration process will be the first step that the state regulates. It can do
so in a variety of ways. Basically, however, there will be a filing of certain
documents with some organ of the state. This can range from a simple
notarization of documents, as in the
With respect to registration, the civil
law's distinction between foundations (or trusts) and associations is based
primarily on the belief that foundations should be regulated more strictly than
associations. In the common law, there is often no practical distinction
between foundations/trusts and associations for registration purposes, but the
tax laws regulate foundations more strictly than membership non-profit
organizations. The state makes this distinction because many foundations/trusts
have significant endowments and their purposes are restricted to or include
grant making, creating the possibility for abuse and thus requiring strict
scrutiny.
In any case, the law should state what is
required to incorporate and/or register the organization. Relevant issues the
law should address are: legal authorities having jurisdiction over the
non-profit organization, information required in the organizational documents
and application for establishment, the time period within which the legal
authorities must act, whether registration may be rejected and for what
reasons, and administrative and judicial appeal of adverse decisions. It will
be necessary to determine whether registration is necessary for the creation of
a CSO, as is frequently the case in civil law systems, or whether certain
informal organizations will be given judicial status, as common law systems
provide private trusts.
The law on not-for-profit organizations
should address several other issues as well. Fees for establishment, the
required number of founders, and actions necessary for creation of an
organization should be specified. The law should also state whether members are
permitted or required, and should list the general rights, duties, privileges,
powers, and immunities of organizations. A registry of CSOs, accessible to the
public, should be provided for as well.
Governance
The law should also address the governance
structure of civil society organizations. Where the distinction between
associations and foundations continues, countries require associations to have
a membership governance structure while foundations must generally be governed
by self perpetuating or mixed boards. Common law systems are more flexible and
tend to let each civil society organization choose how it wishes to be governed
without imposing any particular form control.
Any law on civil society organizations must
distinguish between membership and non-membership organizations. In both common
law and civil law traditions, self-perpetuating boards guarantee independent
governance for non-membership organizations. The responsibility for
independence is reinforced by rules of fiduciary responsibility that require
such a board to act in the interests of the public and not those of any private
person such as the founders.
With respect to the board of directors or
trustees, the law should clearly describe or direct to be set out in the
organization's bylaws the rules governing the rights and obligations of the
board and the scope of the board members' liability for acts of the
organization, their responsibilities to the organization, whether and to what
extent they may be paid or receive other benefits.
The law should state or direct the bylaws to
set out rules governing what officers are required and permitted, how they are
to be elected, what their rights and duties are, how they may be removed,
whether they are to be compensated, the authority they have to execute
documents and to deal with financial and other matters. There should also be
clear rules about what constitute conflicts of interest, especially for public
benefit organizations. Self-dealing should be carefully circumscribed. The law
should also describe or direct the bylaws to set out the rules governing when,
where and how often regular meetings should be held.
Finally, the law should address dissolution,
both voluntary and involuntary. The law should provide specific rules or direct
that the bylaws set out rules governing, for example, who has the right to
dissolve an organization, what legal acts are required to execute dissolution,
and what happens to the organization's property upon dissolution. The law
should also contain provisions about involuntary dissolution, including whether
it may be accomplished by regulatory bodies or whether it requires judicial
approval. The law should settle issues about who has the right to institute
proceedings for involuntary dissolution and under what circumstances, as well
as disposition of the property of an organization in the event of an
involuntary dissolution. Upon the dissolution of an organization, if the law
prohibits particular types of civil society organizations from distributing any
of their resources to founders, members, or persons on their governing bodies,
then the law should state that none of these persons may receive property of
the non-profit organization upon liquidation. Otherwise, such persons would
have an incentive to dissolve and liquidate an organization to obtain assets to
which they are not otherwise entitled. A general rule often applied is that,
upon liquidation, a not-for-profit organization's property must be given to an
organization with similar purposes or to the state.
It is important, however, that the laws
concerning civil society organizations not over-regulate the sector. Several
factors can lead to over-restriction of CSOs. The first is the requirement of
prior approval before granting legal personality. Another restriction on the
freedom of organizations to operate is the imposition of unnecessary delays on
the registration process. To avoid this problem, the laws should clearly state
the maximum length of time for consideration of an application to register.
Excessively high fees or endowment requirements also restricts the growth of civil
society organizations. Registration fees should be set low enough so that small
organizations can be established without difficulty. It is also important not
to impose too high an endowment requirement for foundations. Restrictions on
numbers of members, forbidding juridical entities from being founders, and
requiring the naming of members all will also have a chilling effect on the
formation of CSOs. Governments frequently impose these requirements
specifically to prevent certain organizations from forming.
Finally, the law should provide for judicial
review of adverse decisions by administrative agencies. Such provision
naturally can be effective only in the context of an independent judiciary.
Transparency and
Accountability
One of the most significant regulatory needs
is to ensure transparency and accountability on the part of civil society organizations.
Transparency will maintain public trust in individual organizations as well as
in the sector as a whole. Reporting requirements will ensure that the
organization is actually using its money for the purposes claimed. It will also
be a method to ensure that any tax benefits granted to the organization are
appropriate. In short, transparency is the ability for those outside the
organization to see into its workings to guarantee its reliability.
To the extent possible, reports should be as
simple to complete and as uniform among agencies as possible. There should be
penalties for failure to file reports in a timely manner or for filing false
reports. Requiring reports is not sufficient; they must receive adequate
scrutiny. Questions arising from the reports should trigger inquiries and, when
appropriate, inspections and formal audits. The enforcement must, of course be
balanced against the interests of the sector. It is quite possible for the
government to over-regulate the sector or even use reporting and audit
requirements to harass organizations that are critical of the government or
otherwise unpopular. One of the most important reasons why every country should
have sound administrative laws that permit actions by organs of the government
to be challenged in court, and independent judges to hear those appeals, is to
provide a correction for governmental abuse and to deter future abuses.
Several kinds of reporting requirements will
help build transparency. First, there need to be internal reporting
requirements and supervision. Second, there may be an agency designated by
the government to provide supervision of the CSO sector, or, preferably, supervision
of specified subsectors (such as education, health, etc.) sectors. Any
organization with more than minimal activities or assets would be required to
file reasonably detailed reports at least annually on its operations with that agency,
particularly if the organization’s activities directly affect public health or
safety. Third, to the degree that an CSO is a public benefit organization
receiving public or state funding directly or indirectly (as through tax
benefits), tax or finance authorities may have an appropriate interest in
receiving financial reports covering the use of such funds, with appropriate
provisions to protect the privacy of donors and beneficiaries as well as
confidential information
Although it is relatively easy to pass laws,
it is frequently difficult to administer them fairly and effectively. Often
inadequate resources are available for enforce the legal requirements imposed
on the not-for-profit sector. When problems arise (such as tax abuse), the
temptation is to change the law.
Substantial donors to a CSO should be
entitled to disclosure of information adequate for the donor to assess the
suitability of the organization for receipt of donations and the uses to which
donations, or that particular donor's contributions, are put.
Any CSO with significant activities or
assets should be required to publish or make available to the public a report
of its general finances and operations. The specific rules adopted to implement
this principle should not require large or needless expenditures by these
organizations to disseminate their public reports. Public accessibility to the
reports, for example at the organization's main office, should be sufficient,
and will contribute to public trust of the sector, as well as serve as a form
of “passive enforcement.”
Transparency through reporting is one
mechanism to ensure that an organization remains accountable to both the
government and the public at large. If either discovers that an organization is
not fulfilling its stated purposes or is not using its funds in a legal and
satisfactory manner, then support in the form of government grants and
contracts and private donations can be withdrawn. However, other mechanisms are
available to maintain accountability. These should increase in severity with
the severity and length of the violation. For example, the government, upon
discovering a violation, could start with a simple notice of violation. If the
violation continues, there could be public notification of the violation, a
series of fines, and even dissolution of the organization. This final step
should be used only after a severe violation has been discovered, and the
organization has had an opportunity to correct it. Moreover, any of these
accountability mechanisms should be appealable to a judicial arbiter.
In dealing with issues of transparency and
accountability the law must carefully balance the government's need to know and
the organization's right to run its activities as is sees fit. Accounting
mechanisms are a tool the government can use to harass organizations. Excessive
fines for minor violations will severely restrict the activities of the
not-for-profit sector. Ultimately, a government could even use dissolution as a
harassment tool. The law needs to provide the government with the tools it
needs to regulate the sector and enforce the laws when necessary without
allowing it to exercise excessive control.
The sector itself can play an important part
in its own regulation, as in
Organizations with similar purposes can
develop a set of ethical standards. This will instill confidence in the public
about the organization's activities. The sector should be encouraged to form
umbrella organizations. These can provide significant resources to individual
organizations. They can promote self-regulatory goals and ethical standards,
which increases public confidence in the sector. In addition, they can police
the sector, identifying violators and implementing appropriate sanctions as
necessary.
Licensing mechanisms can also promote self
regulation. Currently under discussion in some countries are proposals for
quasi-state regulatory mechanisms that would resemble the Charity Commission
for
Regardless of the specific content of the
laws regulating the not-for-profit sector, they should be clear and simple
enough to be easily administrable. If they are not, they will not be understood
and enforced, abuse will result, and the public will lose respect for both the
sector and its regulators. There is no way to assure that an organization will
actually do what it says it will in its statement of purpose, so the principle
burden on the state will come once the organization is operational. The cost
and expense of exercising control over the sector will be reduced by imposing
sensible requirements for reporting and disclosure. Simple solutions to
regulatory problems may be better, even if more arbitrary, because they are
easier for both organizations and regulators to understand and apply.
Political Activities of
Not-for-Profit Organizations
Laws regulating the not-for-profit sector
will certainly deal with the political activities of civil society
organizations in some capacity. Political activity can be defined as supporting
or opposing candidates for office, supporting particular political parties,
lobbying for or against specific laws, engaging in public advocacy or pursuing
issue oriented litigation. While individuals clearly possess rights of freedom
of speech and association, there is some debate concerning the extent to which
these rights are extended to organizations, and particularly public benefit
organizations. The restrictions on political activities by civil society
organizations depend to a certain extent on the system of law in each country.
The primary basis for divergent treatment of
political activities of CSOs appears to be classification in common law
countries on the basis of charitable or public benefit purposes, in contrast
with the civil law classification focusing on the nature of the legal
personality. When an organization is classified as “charitable,” or “public
benefit,” in common law countries, the law tends to restrict political
activities of CSOs because these activities are perceived to be inherently
partisan, and thus in actual or potential conflict with the public benefit
purposes of the organization. Further, political activities should not be
improperly subsidized so they undermine the justification for tax and other
related benefits. When public benefit purposes of the CSO are not primary,
common law countries tend to be less restrictive.
In the majority of civil law countries,
there are few restrictions upon the political activities which may be
undertaken by CSOs. Often, obtaining legal personality is the threshold issue,
with the types of permissible activities and the tax consequences determined by
the form of organization. While the civil law approach to the concept of
charity has traditionally been more limited, most European countries now
recognize and list as "public benefit" many of the same activities as
the common law countries.
The approach taken in civil law
jurisdictions towards political activities may be due in part to their
"organic" perspective of society. Political life in civil law
countries may be viewed more as an expression of the society itself, and less
as a clash of interest groups than in common law jurisdictions. Also,
historically speaking, philanthropic organizations have played a more limited
role in civil law countries. Finally, it is possible that under a civil law
framework, regulation of the legal forms for organizations is considered to
constitute sufficient control over the not-for-profit sector.
The threshold question for emerging
democracies is whether it is necessary to impose restrictions on political
activities of not-for-profit organizations at all. These countries must
consider the possible dangers resulting from CSOs entering the political arena
and whether this would constitute an evasion of the requirements for
establishing political parties. They should also consider the potential ethical
or public confidence problems for the not-for-profit sector as a result of
political activities conducted by some of its members.
Economic Activities of
Non-Profit Organizations
The legal framework must also deal with the
issues surrounding economic activities undertaken by CSOs. The analysis involved with this issue is
complex and even subtle, and can affect ultimate sustainability of the
organization and its activities, especially in countries where the accumulation
of capital available for philanthropic giving is limited. These matters are set forth in other
materials which may be supplied on request.
Taxation Issues
The tax regime is another issue for
legislation concerning civil society organizations to address. It is very
closely related to the regulation of economic activities. A country developing
a regulatory system for the civil society sector must determine whether and
when tax benefits are appropriate for CSOs. There are several reasons for this
consideration. Tax benefits obviously provide financial help to the
organizations that receive them. In many cases, these benefits make the
difference between solvency and insolvency. Furthermore, the tax benefits
create a powerful incentive; the government can encourage desirable activity by
providing a tax benefit on organizations and contributors to organizations that
conduct the desired activity. In most cases, benefits will be exclusively for
organizations providing some sort of public service, in contrast to those with
private purposes or that exist mainly or exclusively for the benefit of
members.
Civil law countries generally recognize only
the two forms mentioned earlier for not-for-profit organizations--associations
and foundations. Associations consist of natural persons engaged in a common
activity. Foundations consist of property devoted to a particular purpose. Most
civil law countries now extend tax benefits to both foundations and
associations, although traditionally, the civil law recognized foundations to
be the form of organization designed to work in the interest of the public at
large.
Favorable tax treatment may take a variety
of forms. It can extend to local or regional as well as national taxes. The
income of the organization can be exempted from taxation. In addition, people
who make donations in cash or in kind can receive tax deductions or credits.
There are other varieties of tax
preferences. Not-for-profit organizations can be exempted from sales, property,
transfer, and excise taxes. The value added tax (VAT) is a major tax in many
countries. With no preference, a CSO must pay the tax on goods it purchases
from any other entity. In addition, purchasers of the CSO's goods or services
must also pay the tax on these items. A civil society organization does not
want to be exempt from the value added tax because it must still pay the tax on
its own purchases. The ideal situation is for a not-for-profit organization to
be subject to the tax but to have a zero rating. Governments may also consider
providing a tax preference on customs duties. Much of the work of relief
organizations involves bringing supplies into countries that need them as a
result of disaster or war. If they are required to pay duties, their operating
costs increase considerably. However, relief organizations are not the only
organization to benefit from a customs exemption. In virtually any developing
country, much of the office and other equipment will have to be imported. By
relieving these organizations of customs payments, the government can provide
these organizations with much needed assistance.
Relationship Between Law
and Practices
Having examined the need for a legal
framework for the non-profit sector and the necessary content of the framework,
it is also necessary to examine the relationship between laws and practices.
Creation and enforcement of a sensible legal framework for the non-profit
sector will have consequences for the rule of law generally.
An understanding of the meaning of
"rule of law" will enable an assessment of these consequences. Rule
of law can be defined as a social structure in which the source of guidance and
enforcement of social rules is an established legal framework rather than any
designated individual, such as a monarch or dictator, or group, such as a
ruling political party. Such a social structure would tend to provide
consistency over a period of years. Monarchs and ruling parties can change suddenly,
but the rule of law will evolve. In the common law, this evolution takes place
through individual court cases. A judge uses previous case law to make a ruling
on an individual case. Once decided, that case becomes precedent for future
cases. In the civil law, the evolution takes place through amendments to the
code.
When there is a general legal framework in
place, citizens have greater security and respect for the law. They have a
greater stake in society, and thus are willing to abide by its rules. With
respect to the legal framework specifically developed for the not-for-profit
sector, it is of great assistance in establishing a civil society in which
citizens are able to participate, often enthusiastically. The establishment of
this legal framework provides the basis for the existence of a variety of
non-profit organizations. This enables citizens to take part in organizations
whose goals are important to them. This, in turn, gives them a greater stake in
the society and thus encourages respect for and compliance with the law.
For the goal of compliance to be achieved,
not only must fair laws be enacted, but also implementation policies must be
equitable. There are numerous examples where apparently equitable laws have
been passed, but they are implemented or enforced in a discriminatory fashion.
One such example is
Different government entities would be
responsible for the implementation of the laws for the not-for-profit sector.
These would include the registering agency, the tax authorities, any oversight
agencies, and the court system. All of these entities need to establish fair
implementation policies. In order to do this, these entities must examine the
kind of regulatory structure, supervision, and training available and necessary
for fairly applying the not-for-profit laws. There must also be recourse when
any of these entities renders an objectionable decision. This would include
both appeal to the judiciary as well as administrative appeals.
Increasingly scholars and practitioners
working in the field have come to recognize the simple fact that, while the
legal framework governing civil society is not the only element in determining
the sector's health, it is an essential ingredient. In addition to protecting civic order,
people’s free exercise of government, and ability to conduct business, the rule of law serves to safeguard and
encourage "civil society."
The
term "rule of law" usually refers to the observed body of
international accords and treaties, state constitutions, and written laws which
embody the human rights traditions accepted virtually universally (at least in
form), and which protect individuals and order society in the respective
nations of the world. Perhaps most
important for civil society, the rule of law -- derived in particular from fair
and effective application of the mass of laws (international, constitutional,
and statutory) that affect civil society and its organizations -- provides a "safe" legal space in which
people may work and play together, organize, carry out their own activities,
and express their own opinions without fear of state intrusion or interference. This view of the “rule of law’ is founded
principally and most securely on the “universal rights” summarized in those
formulations popularly known as the “four freedoms” of association, speech,
assembly, and religion – perhaps most notably the first two. The way these rights are applied with respect
to civil society and its organizations in many respects characterizes the
degree to which they are effectively recognized in a nation.
Laws permitting CSOs to be established as
legal persons play a crucially important role in making the freedom of
association, protected by international and constitutional law, real and
meaningful. It is by being able to form
a tenants’ rights association, an organization to promote education for poor
women, an environmental protection organization, or any other of the myriad of
citizens’ organizations that individuals most fully realize the freedom of
association.
Further, the freedom of speech -- equally
protected by international and constitutional law -- is for most individuals a
freedom that has little meaning unless implemented through laws permitting
interest groups to be formed. Most of us
are not important enough for our individual voices to be heard, but if we can
band together to form, for example, a society for the protection of the rain
forest or the rights of a disadvantaged ethnic minority, then our collective
voice will be heard. Laws that permit
and protect CSOs and give them broad latitude to operate give real meaning to
the freedoms of association and speech.
Put differently, the absence of rules permitting formal CSOs to exist
and to operate freely would be inconsistent with international law.
International
Law[1]
Article 19 of the Universal Declaration of
Human Rights of 1948[2] states that "[e]veryone has the right to
freedom of opinion and expression," while Article 20 protects the right of
individuals to "peaceful assembly and association." Although the Universal Declaration was not
intended to bind states when it was unanimously adopted by the United Nations
in 1948, it has come to have normative effect. In addition, many of its
provisions have acquired binding legal status by being included in subsequent
multilateral treaties.
For instance, the International Covenant for
Civil and Political Rights (ICCPR) creates direct binding obligations for the
140 countries that have ratified it.
Articles 19, 21, and 22 of the Covenant guarantee the rights of
expression, peaceful assembly, and association, respectively.[3] By its terms,
The ICCPR not only explicitly guarantees rights enjoyed by individuals, but
also requires the States Party to adopt laws or other measures assuring
protection for these freedoms.
The European Convention for the Protection
of Human Rights and Fundamental Freedoms, which entered into force in 1953,
enshrines the rights of freedom of expression (Article 10), association, and
peaceful assembly (Article 11).[4] Article 25 of
the Convention establishes a complaint procedure that entertains petitions
addressed to the Secretary General of the Council of Europe from "any
person, nongovernmental organization or group of individuals claiming to be the
victim of a violation. "Thus,
juridical persons such as formal civic organizations as well as individuals may
complain of violations of the rights protected in Articles 10 and 11. Article 1 of the European Convention imposes
upon all state parties the obligation to “secure to everyone within their
jurisdiction the rights and freedoms defined in [the] Convention,” and the
Council of Europe, a membership organization, imposes obligations on its
members to respect these rights of their citizens.
Recent decisions of the European Court of
Human Rights[5] make it clear under the European Convention that
there is a right protected by international law to establish a formal civic
organization and that any such organization, once formed, is fully protected
from any interference or restriction by the state that would impede the rights
of individuals to freedom of association.
These decisions under the ECHR have global
significance, for Article 11 of the ECHR, protecting freedom of association, is
essentially the same as Article 22 of the ICCPR. Thus, decisions of the
Under both the ECHR and the ICCPR, the
freedom of association can be restricted only (i) in the interests of national
security or public safety, (ii) for the prevention of disorder or crime, (iii)
for the protection of health or morals, or (iv) for the protection of the
rights or freedoms of others. Any
restrictions must be "prescribed by law, " and they must be
"necessary in a democracy" to achieve one of the four listed
objectives. In both the Sidiropoulos and Communist Party
cases, the Court emphasized that exceptions must be "construed
strictly," that only "clear and compelling" reasons can justify
restrictions, that any restrictions must be "proportional to the
legitimate aim pursued," and that there must be "relevant and
sufficient" evidence for "decisions based on an acceptable assessment
of the relevant facts" before a restriction can be justified. [6]
Finally, the Court in the Communist Party and
ÖZDEP cases held that the freedom of association would be largely theoretical
and illusory if it were limited to the founding of an association, since the
government could immediately disband it.
"It follows that the protection afforded by Article 11 lasts for an
association's entire life and that dissolution of an association by a country's
authorities must accordingly satisfy the requirements" of Article 11 of
the ECHR.[7]
Although many questions remain, the Sidiropoulos, Communist Party, and ÖZDEP
cases provide strong international law protection for right to establish
legally recognized CSOs and the right of those CSOs to operate with a minimum
of limitations and restrictions. They
also articulate very tough rules that must be satisfied before the freedom of
association can be interfered with or restricted.[8]
Realization of the rights to freedom of
expression, association, and peaceful assembly requires, at a minimum, that
governments not impede the creation and activity of civic organizations, and
additionally, that they protect them from interference. States may impose certain narrowly tailored
restrictions on civic organizations exercising these rights. Furthermore, in countries where resources
traditionally have been concentrated in the hands of the state, a greater
obligation on those states can be inferred - they must make such resources
available on a nondiscriminatory basis to civic organizations that seek them
for lawful purposes.
In sum, laws permitting
CSOs to exist and operate freely are indispensable to the full and meaningful
implementation of the freedoms of association and speech, and international law
impose clear and strong obligations on states to enact and implement a good
enabling legal environment for civil society.
II. LAW
AND CIVIL SOCIETY IN THE SOUTH PACIFIC
ICNL review of civil society
legislation
Since
2000, the
The
current review includes an assessment of the current legal and customary
environment affecting civil society and enlisting local legal, CSO, and
government support for drafting appropriate amendments to legislation. ICNL is
also concerned with the education of the public, government officials, and
civil society leadership on the importance of civil society for economic and
social development.
Review process
An assessment visit was made
to
Current legislation affecting
civil society organizations in
Our local associate, James Duckworth, People’s Lawyer,
has reviewed the current legislation and recent reports on civil society in
Achievements
The
project has raised the level of interest and understanding of the nature and
value of relevant and effective civil society legislation among community
associations and government agencies.
For example ICNL input to
the Strengthening Civil Society Workshop in Nadave helped develop the following
workshop recommendations for action:
- Review and update the laws and regulations
governing civil society so they are consistent with best practice and
ensure an enabling environment for CSO activity;
- Develop policies to enhance CSO-Government
cooperation;
- Collect and disseminate relevant information to
CSOs to raise awareness and understanding about government laws, policies,
plans and programs.
Discussions
associated with this project have resulted in the regional NGO umbrella
organization, PIANGO, including as one
of its six key objectives:
“To raise
awareness on the role and impact of customary and introduced laws and to
promote an enabling environment
for the growth and development of NGOs.”
The Relationship Between Law and Civil Society in the South Pacific
As we have seen, ICNL uses
the term “civil society organization” (CSO) rather than the more common
“non-governmental organization” (NGO) because it more accurately reflects the
broad range of organizations, formal and informal, registered and not, which
comprise civil society around the world.
These may include “NGOs”, community-based organizations, informal
gatherings, movements, even tribal or village structures, as well as churches.
Civil society describes that element of society outside of
government and business sectors, both organized and essentially disorganized,
that represents the workings of people among, and with one another to achieve
their aspirations, meet their needs and live creative, active, healthy lives.
To define the term much more precisely actually works to limit it, when in fact
the essential character of “civil society” is its unlimited quality.
It may be more useful to envisage civil society in terms of being a
space rather than in terms of activities. ICNL is concerned with assisting
Governments and communities to develop legislation that protects this space,
rather than legislation that controls our activities. Civil society laws
provide the boundaries of this space within which people can associate of their
own free will and where this association can take place without repercussions
or sanctions for these actions.
However, in the Pacific it
would be more accurate to talk about a “constrained space” rather than a “free
or empty” space. That is, the civil society space is one in which actions are
constrained, in the main not by the law, but by culture and religion. Another
way of viewing this is to see the civil space as being both constrained and
connected with and to culture and religion.
That is, civil society (and
civil society organizations) does not exist in isolation from the other sectors
in society.
The objective of our project
is not to bring best practice in legislation to the Pacific and see how local
community structures can be amended to fit into this model but to consider how
Pacific societies organize free spaces where people can meet to identify issues
and to take action collectively to meet needs for the common good and to
explore what forms of legislation would best provide for this.
Legislation protecting the
space where CSOs can form and flourish brings reality to the rights of freedom
of speech and freedom of assembly that are written into the constitutions of
most Pacific states. After all, it is of little value to have the freedom to
speak and the freedom to associate with others if there is no accompanying
right to organize and to act.
It is important to recognize
that concern for the effectiveness of current legislation affecting CSOs, NGOs
and charitable organizations is not just an issue in the Pacific.
ICNL has offices in
As ICNL’s work has extended
around into around the world we have developed a policy of working in
partnership with regional organizations. This approach is being taken in
Another indication of the
global interest in the reform of civil society legislation is the number of
recent reviews of charity legislation in Commonwealth countries such as the
When we talk about laws and
legislation affecting civil society we do not just mean the rules concerning
registration. Our check-list of CSO legislation includes the constitutional
arrangements that guarantee the freedoms of speech, assembly, association and
religion, registration requirements and procedures, taxation of CSOs (including
customs duty, VAT, income tax etc), taxation of donors, the definition of what
is charitable, rules on ownership of property by CSOs, provisions for appeal
against refusal of registration etc.
A key issue concerning CSO
legislation in the Pacific is a legacy of
colonization. In all
It is important to note that
the countries from which much of the Pacific legislation has been adopted – the
For example current
legislation that applies in
Although in some countries
the recognition of customary law has been written into the constitution how
this customary law and the introduced law should fit together in practice has
not been specified.
A summary report on our
current review of legislation in
The inter-face with
customary law, religious organizations and with local (usually village)
government is also often unclear.
The practice of external
funding being transferred through government departments in some countries is
of concern to CSOs. Together with the frequent existence of Ministerial
discretion in collecting customs duty and in allocating funds this practice
restricts the ability of CSOs to operate independently within the free space of
civil society and to reflect the interests, concerns, and needs of their
members and beneficiaries.
Summary report on review of non-profit legislation in Fiji
Following
the assessment visit David Robinson provided input on civil society legislation
to the Strengthening Civil Society in
Fiji Workshop,
held in Nadave in November 2002 and at a regional NGO Planning Workshop in Nadi
in March 2003.
Participation
in these workshops also provided the opportunity to engage in ongoing
discussions in
Discussions were held with
officials in the Ministry of Finance and National Planning, the Attorney
General’s Office, Law Reform Commission, Human Rights Commission and the Department of Social Welfare.
Community organizations consulted include the Fiji Council of Social Services,
Pacific Concerns Resource Centre, Fiji Local Government Association, Citizens
Constitutional Forum and the Ecumenical
Centre for Research Education and Advocacy. Academics at the University of the South Pacific
Institute for Justice and Applied Legal Studies and Department of Development
Studies were also consulted.
Current legislation in
Community associations or
civil society organization in Fiji include women’s organizations, churches,
interest groups such as environmental groups, protection of animal groups,
poverty alleviation and welfare organizations and the like. Although these are
generally seen as positive activities, groups can face opposition where their
goals conflict with local custom and tradition, or with governmental policy or
bureaucracy. In these cases it is essential that the law is clear about what is
allowed in terms of different forms of association. Civil society legislation
should ensure that a safe space exists in society where community organizations
can be formed.
There are generally four
sources of law in
(1) The Constitution; (2)
Codes and Statutes; (3) Common Law; and (4) Customary Law. The Common Law has
an English heritage which means that any legislation passed in the UK before
January 1875 has binding authority; while any passed after this date has
persuasive authority as far as judicial authority is concerned.
The fundamental freedoms
inherent in any democratic state are present in the Constitutional provisions
for
·
Freedom of
assembly (Article 31 (1))
·
Freedom of
association (Article 32 (1))
·
Freedom of
speech (Article 30 (1)).
There are ten specific
pieces of legislation that apply to civil society organizations[9] in
The
Charitable Trusts Act provides for the incorporation of the trustees of
charitable and other trusts, for the extension of charitable trusts, and for
other connected purposes.
In
this Act the definition of charitable
purpose includes “any other purpose that the Minister might consider a
charitable purpose”. However, the criterion that the Minister should refer
to in order to determine whether a purpose is charitable is not outlined.
Current issues.
1. All the community and
Government agencies consulted considered that reform of civil society
legislation is required urgently. Several government agencies mentioned the
need for law reform to meet the requirements from the WTO and the EU that
Governments consult with the non-government sector. This requires clear, up to
date legislation setting out the boundaries of that sector. Some of key issues
raised include:
2. In June 2001, the
Citizens Constitutional Forum was de-registered with the reasoning that the
group had become political in its challenge to the validity of the Constitution
and support for international attempts to reinstate the Labour government.
Subsequently the UN Committee on the Elimination of Racial Discrimination
meeting in March 2003 welcomed the information given by the Fijian delegation
that CCF (which had been deregistered under the Charitable Trusts Act) should
be registered under another appropriate law, and that consultations in this
regard are under way. However CCF has not yet received information on
alternative forms of registration and they have recently registered as a
business.
3. Several other community
groups also expressed their uncertainty over the most appropriate form to
register as (charitable trust, business trust etc). The main reason for this is
the lack of clarity over what forms of advocacy are allowed under the
legislation. Some agencies mentioned their concern over whether their education
work would be considered to be “advocacy” and therefore not “charitable”. In
several cases CSOs are therefore considering establishing themselves as
business trusts.
4. A recent move by a group of five villages to join
together to form a community foundation or trust to provide funding for
community activities in the combined area has been delayed through uncertainty
over the relevant legislation.
5. The Business Licensing Act states that
a license is required in order to conduct a business and anyone in
contravention is guilty of an offence. The license issued will be determined by
the licensing authority and expires on the last day of the year in which it was
issued. Any subsequent renewal will be for a one-year period. The Act does not clarify whether CSOs or NGOs
can operate businesses from which profits derived are used for charitable
purposes. However, this does happen in practice, for example, one of the
churches operates a commercial radio network.
6. The Social Justice Act
covers affirmative action programs of which there are 29 initiatives identified
by the government that need re-strengthening. Ten are directed at Indigenous
Fijians alone, 2 for Indo-Fijians and others and 17 are for all races. While
the aspirations of the government to improve the standard of living for
indigenous people and to instill a sense of equality with the Indo-Fijians are
noted the program has been criticized because it favors the development of one
sector of Fijian society. The latest census states that Indo-Fijians are 44% of
the
General issues:
An
educational program is required to build widespread understanding of the nature
of civil society and civil society organizations as part of any consultation
over legislative issues.
The
boundaries of what is meant by civil society and what is covered by civil
society legislation is not clearly understood at present. For example, three
major areas of interaction with other sectors were raised. These are the
interface with local government, with religious organizations and with cultural
associations and activities.
The
inter-face between community organizations and local government was raised by
the Fiji Local Government Association. Many local communities face difficulties in delivering
services with limited funding from government. The leadership of many local
councils is Indo-Fijian, while the indigenous Fijian population is focused more
on forms of village governance. The Local Government Association stressed the
need to provide CSOs with the resources to help provide services in local
communities that desperately need assistance. These resources include the
recognition and mandate to engage in such activities.
In practice many religious organizations in
The role of culture.
To what extent does CSO
legislation take account of cultural issues? This includes both indigenous
Fijian culture and indo-Fijian culture. It is important that legislation should
provide a free space for each of these cultures to exist and flourish alongside
each other. The reality of Pacific culture, especially in village life, does
not fit comfortably with the basically English charity law on which the
Summary of issues.
1. There is no clear legislative provision for
groups carrying out advocacy work. As a result some organisations have
registered as companies limited by guarantee while several others are
considering this option.
2. There is no provision for the registration of
Community Based Organisations which have no formal status or structure but
which operate according to local traditions. There is consequently no record of
their number or activities.
3. Consultation with community groups showed
that the boundaries between the activities of religious and community
organisations is not clearly defined or understood.
4. Legislation does not provide for policy
dialogue or input from community organisations into public sector policy or
planning.
5. There is a need to review the definition of
charity to take the emphasis away from the charitable purpose definition
towards that of public benefit which would more accurately reflect current
needs.
6. Appropriate legislation is required to
encourage the establishment of self-help organisations, including mutual
organisations.
7. The role of the registrar needs examining
with a view to establish a new regulator to be responsible for determining the
charitable status of organisations, regulating the sector and protecting the
public interest.
8. Clear guidelines are required as to the
extent to which charities may pursue political activities and campaigning.
Suggested way forward:
The current high level of interest in the review of charity/civil society
legislation in
To be effective the current
initiative by the Department of Social Welfare in developing a protocol setting
out a positive working relationship between the government and the community
sector also requires a review of legislation.
It has been made clear by
all those consulted (government officials and community associations) that
technical assistance in reviewing and re-drafting legislation and assistance
with funding for this work will be required.
In light of the wide degree
of interest expressed in these issues it would be useful to hold a roundtable
meeting of concerned Government agencies to clarify which agency will take
responsibility for carrying out such a review and how the community would be
involved.
Next
steps.
- Establish a government
working party to review the legislation. The Government of Fiji has appointed
a lead agency to carry out this work.
- This review should
lead to drafting new legislation that takes account of (a) the specific
cultural and historic culture of
- Produce a simple
publication setting out the nature of CSOs, their linkages with and
differences from local government and religious bodies and the relevance
of legislation to their operation. This community dialogue on civil
society legislation would provide a useful input into the deliberations of
a Government review of legislation.
- Support current
community consultation exercises on civil society such as the Oxfam NZ
sponsored workshops and the FCOSS work with CIVICUS in developing a Civil
Society Index. ICNL is available to provide input into these discussions
on legal issues.
Summary report on review of non-profit legislation in
Tuvalu
Current relevant
legislation.
Tuvalu does not have any
specific law with respect to the establishment of civil society organizations
but by virtue of the statutes of general application in force in England in
1961 the Recreational Charities Act 1958 (UK) and the Charities Act 1960 (UK)
seem to apply.
The most relevant piece of
legislation which might be applied to confirm existing practice is the 1960
English Charities Act.
The Income Tax Act 1992,
which is the only tax act in
The Income Tax Act exempts
the income of an approved community service organizations and any benevolent,
religious, educational charitable, cultural or amateur sporting organization or
organization approved by the minister by regulation.
However, this exemption does
not include any income derived from business activity or passive investments
unless the annual taxable income so derived is less than A$250. This
legislation appears to penalize community organizations for gaining income from
investment of donations, for creating a foundation or for having any form of
investment income.
The definitions section to
the Income Tax Act defines “approved community service organizations” as:
“Any organization situation
is unsatisfactory with the underlying legislation that needs to be referred to
in practice being forty-year old English law while other specific legislation such
as the Income Tax Act, Customs Act and Religious Bodies Act is not adequately
cross-referenced to clear definitions of non-profit and charitable purposes.
Areas of concern.
Key issues identified in
this review include:
- There is no specific Tuvaluan legislation
relating to non-profit or charitable organizations. In general the
- There is no clear Government agency with
responsibility for relations with the community sector or with
responsibility for registration and the implementation of legislation.
The
absence of CSO legislation and the lack of clarity over the clear allocation of
governmental responsibility are reflected in uncertainty in regard to the
boundaries between community organizations and churches and between community
associations and the Falekaupule (a form of local government).
The
churches have separate legal identify and have to be registered under the
Religious Bodies Registration Ordinance. However, they play a major role in the
Tuvalu Association of NGOs with church officials holding senior positions
within TANGO. In practice the churches are treated within the community as a
form of community organization or NGO.
- There is some uncertainty as to the range of
activities, such as advocacy, that can be carried out by charitable
bodies.
- The independence of civil society organizations
is restricted through the government being the controlling body for the
transfer of funds from overseas.
Taking into account the
inadequacy of the current operative legislation with the accompanying
uncertainty concerning registration, taxation and accountability procedures we
suggest that the following action be taken.
- To review all existing charitable and non-profit
legislation in use in
This review should pay
particular attention to the following issues.
- Consider any legislation that may be applied
under the constitution and seek to get this confirmed. Any such
legislation must be assessed as to its suitability to local circumstances
and adapted to meet local needs. In particular, the 1960 Charities Act
needs to be verified as to its applicability.
- Examine the operation of taxation and customs
legislation to identify their impact on CSOs. In particular the limited
tax exemptions available for investment or business income. Does this
legislation restrict long term planning or otherwise affect the expression
of freedom of association?
- Consider the value of using a company limited by
guarantee structure to deal with the trading aspects of CSOs.
- Review the system of registration.
- Review the current system of the centralized
receipt of funds by Government to enable CSOs to directly control their
own funding.
Revision of legislation
affecting the taxation of investment and trading income and enabling direct
control of external income by CSOs would encourage the development of a more
independent community sector. A key attribute of such a sector is its capacity
to build its own funding base and to operate independently of government. This
would contribute to the ability of citizens to practice the rights of freedom
and association that are guaranteed in section 25 of the Constitution of
Tuvalu.
This is essential if civil
society is to play an effective role in building the ability of communities to
reflect and respond to the interests of citizens and in so doing to address
critical issues of social and economic justice.
The way forward.
It is clear from the lack of
specific legislation and the uncertainty over registration, and taxation
procedures that the legislation requires reviewing and updating. We suggest
that this process should take place in association with community consultation
to be carried out by the Tuvalu Association of NGOs. A formal review and the
drafting of a “model law” that responds to the issues raised in
This approach, including an
appropriate “model law” could also be useful in respect of similar small
Pacific countries including Tokelau and
Summary report on
review of civil society legislation in Vanuatu
Current relevant
legislation.
The Charitable Associations
(Incorporation) Act is the only law under which civil society organizations in
There is Ministerial
discretion in the definition of “charitable purpose” objects of a “general
social welfare and any other object the main purpose of which is charitable and
is not financial profit, which the Minister declares to be charitable for the
purposes of the Act”.
This discretionary power has
resulted in some uncertainty on the part of CSOs as to what activities they are
allowed to carry out, for example, in relation to advocacy and carrying out
business activities.
Areas of concern
In
There is considerable
discretion in applying taxation legislation to the sale of goods by CSOs. For
example, in the case of a craft shop attached to a community project it is not
clear in what circumstances tax on sales will be levied. It appears that this
is often decided at the discretion of local officials. This uncertainty is not
conducive to developing a culture of openness and accountability.
Concern was also expressed
about the level of discretion over the payment of customs duty on imported
goods.
Government
officials acknowledge that they have difficulty providing basic services beyond
the vicinity of the capital. Village leadership holds sway in the outer
islands, with only weak local Port Vila-directed government structure. A view
was expressed that the encouragement of strong, independent community
organizations based on customary forms of association would provide strong
support for the delivery of services to these outlying areas.
Current level of interest
in reform.
Government response.
The
Department of Strategic Management expressed interest in legislative review and
reform. This department was seeking CSO support for a draft “Memorandum of
Understanding” with government to establish working relations between the
sectors. This is high on the government’s priority action list. This is linked
with the government’s need to partner with CSOs in providing services in
territories distant from the capital. Community organizations of various forms
are located within the communities needing services and they can be the most
efficient and effective vehicles for provision of such services.
Some
concern was expressed by community groups over the possibility that the MOU
might lead to increased government control. It is clear that to be effective
any further action on developing such an agreement will require the involvement
of, and consultation with, the wider community.[11]
The
government officials consulted emphasized the need for strong ministry support
for any suggested changes.
Community response.
Discussions with
representatives of the CSO sector emphasized the need for consultation with the
people affected by the law including community organizations and those they
represent.
Some community groups are
cautious about the prospect of any change in the law, in case this brings more
restrictions on their activities. Caution over legal reform is based on the
fear that it may lead to increased government control, rather than seeing the
law as providing a “safe space” in
There
is some confusion in
However
the legislation does not make adequate provision for the informal customary
forms of association that are common in rural areas. It is important that
consultation involves groups outside Port Vila, especially on the outer islands
and that any changes to the legislation reflect their needs.
Next steps.
Several issues are of
immediate concern and could be clarified through amending current legislation.
These include the definition of “charitable purpose” and the enforcement of
taxation legislation to the sale of goods and payment of customs duty on
imported goods. However, this would not deal with the under-lying lack of fit
between the “introduced law” and the reality of community life in
To be effective consultation
needs to include basic information on the nature of civil society and the
positive role that can be played by appropriate legislation. Any written material
must be made available in Bislama as well as English. The initial discussions
suggest that two sets of education and discussion material are required.
- The first should cover what civil society and
the community sector is. That is, the nature of the whole sector including
customary forms of association, not just about formal NGOs and CSOs. This
would connect the idea of civil society with issues of culture, religion
and government and would include a commentary on the key “advantages” of
the community sector.
- The second set of material would be concerned
with the “rules” under which CSOs operate including registration, tax
issues, the right of appeal etc. This would include the interface between
customary and introduced legislation and procedures for implementing and
monitoring the operation of legislation.
Although
implementing a Memorandum of Understanding between government and the community
sector could provide an important step toward increasing government and
community cooperation this would only be effective if it is based on an
informative and open consultation process and that process continues into the
law reform phase of development.
Continued collaboration with the
Conclusion.
The proposed action in
each country is consistent with the policy of the
“Many
countries in the region lack a suitable legal framework for the growth and
development of the NGO sector, thus hampering the process of registration and
localization of NGOs. There is a necessity for legal frameworks to better
protect and enable NGOs to perform to their fullest potential.”
One of PIANGO’s six key
objectives is:
“To raise
awareness on the role and impact of customary and introduced laws and to
promote an enabling environment
for the growth and development of NGOs.”
In each of the countries
covered by this review action is required in both education (for government and
community leaders) on governance and sound legal framework principles, within
the local cultural context; and in the updating and refinement of legislation.
Technical assistance with
legal reform
ICNL has carried out the
first stage of this work including.
- Raising awareness of the importance of law reform
with the government and with community organizations.
- Reviewing current legislation and identifying
key areas of concern.
We have suggested procedures
for carrying out the second phase including:
- Organizing community consultation meetings with
civil society organizations both locally and nationally.
- Establishing a process for the review and reform
of legislation within government.
In
collaboration with our associates at the University of the South Pacific and
the Victoria University of Wellington Institute of Policy Studies, ICNL has the
experience and expertise to provide technical assistance with the review and
re-drafting of civil society legislation. Through our current work we have
developed contacts within Government and the community, we have collected
legislation, reports and other information on the current state of legislation
and ICNL has the world’s leading experts and other resources in this field.
Several community
organizations and government agencies have asked ICNL to provide a “model law”
which they could review and amend to suit the local situation.
We suggest that any such “model law” should be
developed alongside the proposed community consultation and government review
procedures to ensure that it does reflect the local realities.
References.
Charity Law in Fiji, Chaitanya Lakshman, Centre
of Philanthropy and Nonprofit Studies, Queensland University of Technology,
2002
The Status of Customary Law in
The
Rule of Law, Custom and Civil Society in the South Pacific: an overview, Stephan Klingelhofer and
David Robinson, Third Sector Review, ANZTSR, 2002.
Civil Society
Organizations in Tuvalu – a legal perspective of business practice for the
non-government sector in Tuvalu,
James Duckworth, 2002.