1126 16th Street, NW, Suite 400 113
Creswick Terrace
sklingel@icnl.org david.robinson@vuw.ac.nz
(202) 452-8600, ext. 226 (64)
4 4759275
LAW AND CIVIL SOCIETY IN THE SOUTH PACIFIC
IN THE 21ST CENTURY
Challenges and
Opportunities
Stephan E.
Klingelhofer
President,
ICNL
A Presentation at the
The University of the
South Pacific
What is “Civil Society?”
The relationship of law and “civil society” begs an
important question: What is “civil
society” anyway? There have emerged over
the past three centuries a variety of responses. In recent years, Ford Foundation executive
and scholar Michael Edwards points out[1], at least three significant definitions have taken
center stage:
- Civil society as part of society – in the form of associations, groups of
people operating within society at large;
- Civil society as a kind of society – value-based, creating “good;”
- Civil society as the public sphere – the arena for public debate and argument, a
public space in which differences community, cultural identity, and public
policy are debated.
As
we look at it, “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, not by the law, but by culture and religion.
Another way of viewing this is to see the civil space as being both constrained
by 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.
Legislation
protecting the space where CSOs can form and flourish brings reality to the
rights of freedoms of speech, association, 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.
Laws permitting civil society organizations (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, a voters’ rights group, 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.
Moreover, it is also by choosing not to be associated, not being
compelled to join or remain a member of an association, that the freedom of
association is realized.
The
objective of improving the legal environment for CSOs 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.
Rather, it is intended to focus on 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 achieve this goal.
ICNL’s Work
Founded
in 1993, 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.
The Pacific Legacy
A key issue concerning CSO legislation
in the Pacific is a legacy of colonization. In all Pacific Island states civil
society legislation has been introduced or adopted, upon independence, from the
former colonial powers, whether they be Australia, New Zealand, UK, France, or
USA. The intention was that these laws would be reviewed and revised to take
account of the local situation, including recognition of customary law.
However, the lack of legal capacity within the region has meant that even when
there has been a review this has generally been a “paper review” by outside
experts.
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.
The Rule of Law
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 sound 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 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. To those of us who are
fearful of law as an instrument of control, it is well that we be reminded of
the observation of Thomas More in the play A
Man for All Seasons, when he noted that, in the absence of the forest of
trees that comprises the laws that protect
society, there is nothing that can protect us from the “winds of injustice”
that will sweep unimpeded across the land.
Moreover,
people have come to understand that institutions, governments, and
organizations – society itself – must be governed honestly to succeed. Trustworthy “good governance” is required at
all levels. A strong civil society,
protected by law, is an essential guardian of “good governance.”
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 belief -- in particular
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.
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 more likely 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.
[A note on International Law[2]. Article 19 of
the Universal Declaration of Human Rights of 1948[3] 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.
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 imposes clear and strong obligations on states to enact and
implement a good enabling legal environment for civil society.]
Application to the South Pacific
It
must be remembered that the very concept of "nation state," on which
the rule of law as commonly understood is based, is extremely recent in the
Pacific Islands (with a very few notable exceptions[4]). In fact,
most of the nations in the region achieved political independence only within
the past thirty years.[5] Much of the
introduced law in those states has been carried over from laws enacted during
the time of political dependency and either replicated or modeled after the
"Western" laws of one or more of the colonial powers. While these nations have subsequently adopted
laws of their own, in many instances these adopted laws have been built on
existent structures imposed by colonial rule.
Accordingly,
though the legal framework governing and affecting civil society in the
Moreover,
the normative value of the “rule of law,” or of the laws that are in force in a
particular jurisdiction, may be significant as a measure of the society’s goals
and expectations. At the same time, as
spelled out below, the relationship between effective power and law may be less
definitive in terms of the written
laws in communities in which tradition better reflects the actuality of
relationships. For example, ownership of
land, with the appurtenant bundle of rights and power, is largely determined by
tradition and custom in the South Pacific, not by property law as commonly
understood in the West.[6] Similarly, in
the South Pacific traditional practices encourage disputants to settle their
differences through a process of “acknowledgement and forgiveness” rather than
through a legal remedy or sentence, and often no offence is recognized even
under criminal law without a willing complainant.
In
fact, civil society organizations, in all degrees of formality and legal
status, represent an essential power function – the right of people to
assemble, organize, and act collectively, participating in the matters that
affect their lives. Written laws governing
CSOs provide mechanisms through governance provisions whereby such collective
action can be carried out in an orderly fashion. Similarly, custom and tradition in many
societies provide much the same function.
In either case, rights conferred by law/tradition recognize power, and
confer the ability to act.
Knowledge
of the Law
The absence of any clear common
understanding of introduced or adopted law or its purposes is an unfortunate
consequence of both the widely dispersed lands that comprise most of the
nations in the region, and the complex and segmented population groupings
within and among them.[7]
Even a significant legal development in a country, such as
Such
a state of distrust or even ignorance of the written law reinforces the
tendency in the region to rely on “customary” or “traditional” law to ensure
order in social transactions.
Religious
Bodies
While not strictly considered “CSOs,” the “Church” (whether
Roman Catholic or Protestant) and other religious groups like the Muslims
represent an extremely powerful independent force, at both national and
community levels. In fact, even village
leaders generally exercise little or no direct influence over the Church and
its governance. Churches provide
numerous essential public services, often staffing and even housing schools,
furnishing training programs for youth, medical and emergency care facilities,
and many other activities in addition to their pastoral and religious
functions.
Throughout the region, written law, usually a simple
registration process, governs the establishment and operation of churches. At both local and national levels, in
addition to providing social services, religious bodies may take positions on
critical issues affecting the welfare of the community, and their influence as
independent agencies can be decisive.
Categories
of Laws Applicable to Civil Society Organizations
The following categories of laws are among the most
significant that affect CSOs globally:
·
Constitutional
provisions on freedom of speech, peaceful
assembly, association;
·
Laws
and regulations governing establishment
and legal status of CSOs, domestic and foreign, as well as international
NGOs -- registration, reporting/supervision, transparency;
·
Laws
governing taxation of CSOs – company
profits/income taxes, VAT, property, excise, customs, etc.;
·
Laws
governing taxation of donors –
individual profits/income taxes, gift taxes, testamentary taxes, etc.;
·
Laws
governing economic activities of CSOs
– consent, taxation, etc.
·
Licensing
laws for providing public services –
education, health, science, sports, culture;
·
Laws
governing endowments;
·
Laws
or regulations on assemblies;
·
Laws
governing fundraising activities;
·
Laws
governing ownership of property by
CSOs.
In the Pacific, some or all of these laws and regulations
may apply, notably the first four categories.
The legal framework for civil society in most of the nations in the
region is characterized by relative simplicity (as compared with other parts of
the world), and written laws that apply are mainly derived from the former colonial
powers or influential neighbors (notably
In
addition, most of the independent countries have expressly “saved” existing
colonial laws, in various ways, depending on specific provisions of constituent
law in the country.[8]
In some of the countries, the existing laws, as of a date certain, are
“swallowed whole” (adopted through the force of the constitution or otherwise,
without amendment); in others, they are adopted subject to localization, or to
the degree they are “not inconsistent with” locally adopted law.
The practical effect of this practice has been the
existence on the statute books of various regulatory systems and procedures
that conformed to the needs of other societies (often at quite distant times)
but which may or may not have contemporary relevance to the island communities
in which they are in force. “Saving” the
laws was initially intended as a short-term solution to a larger problem,
namely, the need to have a legal
structure in place upon independence. It
was anticipated that the legal systems of each country would soon be adapted
through acts of their own legislatures.[9] While such adaptation has
occurred, it is far from universal, and a systematic, formal law review and
reform process has never been undertaken in the region, except to a limited
extent in
In
addition, tax provisions apply to CSOs as legal entities: exemptions from
income taxes, real and personal property taxes, in some cases customs duties,
and deductions or exemptions for contributions to CSOs, particularly those with
charitable or public benefit purposes.[10] In most countries, special laws apply to the
registration of religious bodies.
It
should be emphasized that, in the end, charitable or public benefit status is
not a trade-off between tax relief and serving the government agenda. It is a framework that enables citizens to
contribute to the public good on their own initiative.
Conclusion
The laws currently in place in some ways reflect at least
primordial versions of contemporary regulatory principles governing appropriate
legal frameworks for the CSO sector.
However, they clearly do not represent the best in contemporary legal
thinking in the field. As noted at the
outset, during the past ten years, the most significant advances have been
taken in new thought about the role of civil society and its place within the
legal environment nationally and internationally. Any review of legislation must take account
of the role that CSOs play in building social capital, contributing to public
debate on national and international policies, and forming civil society as
well as their functional role in the delivery of services. Because most of the
received or even adopted laws are directly taken from older Western models,
substantial upgrading efforts are clearly in order.[11]
Next
Steps
It is clear that certain steps can
and should be taken to improve the legal infrastructure affecting CSOs in the
Pacific.
·
Public education on the nature of
civil society and the rule of law, and the applicability of certain specific laws (such as
those affecting CSOs), is a necessity throughout the region. This can be carried out through simple
publications in the popular languages for the literate, and oral campaigns
where literacy is lacking. ICNL has
agreed to work with local partners in the
·
Introduced
or adopted statutory law must be updated to conform to the culture in which it operates as well as update the laws to conform to current
international standards wherever possible.
It is necessary that the law reflect what is real and true “on the
ground” in order for it to be respected and effective, and to advance the rule
of law generally. At the same time, to
assure that the local law is recognized by international partners, it must
reflect international standards. The Fiji model of a commission to reform the
laws on a systematic basis is useful.
However, many of the
In the
meantime, ICNL has been asked to assist the Fiji Law Reform Commission and the
CSO community in the scheduled 2005 review of laws affecting civil
society. We expect that this review
presents a clear opportunity to set a positive standard for future reforms in
the region, providing consistency with international principles as well as
enlightened consideration of the valued place of traditional practices in the
life of the community.