Al-Haq’s Comments on the Draft Law by Decree Amending the Law on Charitable Associations and Non-governmental Organisations No. 1 of 2000 as Amended

Monday, 29 October 2018 17:30
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Introduction

The Palestinian Authority’s executive power continues to tighten its grip on non-governmental organisations (NGOs) and non-profit companies (NPCs) through continuous efforts to amend the Law on Charitable Associations and Non-governmental Organisations No. 1 of 2000 (hereinafter ‘NGO Law’). The executive has already amended the Regulation on Non-profit Companies No. 3 of 2010 (‘NPC Regulation’) to control NPCs, who work towards achieving the same goals pursued by NGOs. These efforts demonstrate the executive’s underlying attempt to control and undermine the role NGOs play in monitoring public performance. It also indicates the executive’s mistrust towards official oversight bodies, which are governed by various laws and regulations aimed at monitoring the performance of NGOs and NPCs. These efforts also point to an attempt by the executive to create alternative oversight bodies and to exercise control over the financial resources of charitable associations and NPCs, in violation of the Basic Law and relevant international treaties and standards.

Control over NPCs

On 7 July 2015, the Palestinian Council of Ministers promulgated a regulation amending the NPC Regulation, dated 15 February 2010. The amending regulation provides for subjecting NPC funding sources to control and prior approval by the Government as a prerequisite to accessing funding. NPCs are also required to state the purpose behind the funding being sought. Contrary to the Council of Ministers’ NPC Regulation, the Basic Law, and relevant international standards, NPC funding is then subjected to the approval of Palestinian security agencies.

In practice, a NPC must fill in an application form to the Ministry of National Economy (MoNE) to access funding. The application is then forwarded by the MoNE Company Controller to the Preventive Security and the General Intelligence agencies for approval. If approved by both security agencies, the application is referred to the Council of Ministers for discussion and endorsement. If rejected by the said agencies, the application process is halted and the request is not submitted to the Council of Ministers. In this case, the NPC cannot access funding. Al-Haq has received complaints against security agencies, which have rejected NPC requests for funding, and has published detailed comments on the NPC Regulation, showing how it violates the provisions of the Basic Law and relevant international standards, how it is inconsistently applied on the ground and yet remains in force.

Al-Haq notes that Palestinian NGOs can be registered by the Ministry of Interior under the NGO Law as amended. NGOs can also be registered by the MoNE as NPCs in accordance with the NPC Regulation, which was amended in 2015. Under this Regulation, NPCs are considered companies without a profit-making aim. Financial revenues, if any, may not be distributed to respective shareholders. These are used to accomplish the company’s goals and objectives, namely, to provide economic, social, cultural or developmental services, which seek to improve citizens’ social, health, artistic, cultural or educational conditions. These are the same goals pursued by NGOs, which explains the continued attempts made by the executive to assert control over both NGOs and NPCs by placing constraints on their activities, programmes, and funding sources.

Continued Attempts to Control NGOs

In May 2015, a presidential decree established the Advisory Committee to the President for Charitable Associations Affairs. The Committee was tasked with drafting a “comprehensive detailed report” on charitable associations operating in Palestine. The committee would also implement any tasks assigned to it by the President. This was preceded by an earlier presidential decree of December 2012, when the President promulgated Presidential Decree on the Establishment of the Commission for NGO Affairs. Reporting directly to the President and submitting an annual report to the President, the Commission was tasked with coordinating the work between all Palestinian and foreign NGOs and Governmental bodies.

In July 2013, the Presidential Decree on the Establishment of the Commission for NGO Affairs was amended. Accordingly, although it became financially and administratively independent, the Commission was to report directly to the President. The structure of the Commission was in breach of the NGO Law as amended and the NGO Bylaw, and as such violated the Palestinian Basic Law. At the time, Al-Haq published detailed comments on the Commission’s illegal nature; yet, it continues to be in operation as of the time of writing.

In April 2011, the Law by Decree on the Amendment of the Law on Charitable Associations and Non-governmental Organisations was promulgated. The amendment targeted Article 39 of the NGO Law of 2000, which originally addressed how NGO assets are to be disposed of after their dissolution. Instead, the amendment provides that NGO assets will be transferred to the “Public Treasury”, amounting to a seizure of NGO assets without a judicial warrant, which is inconsistent with the Basic Law, which provides that “confiscation shall be in accordance with a judicial ruling.” The amendment is also in violation of international treaties, particularly Article 22 of the International Covenant on Civil and Political Rights (ICCPR), to which the State of Palestine has acceded. Al-Haq has published comments on this amendment, which remains in force.

On 20 June 2007, during the state of emergency, the President passed a decree vesting the Minister of Interior with a broad discretion to review all licences of associations and organisations, including NGOs, which were issued by former Ministers of Interior or any other Government agency. The Decree obliges all existing associations and NGOs to correct their legal framework within one week as of the date of notification. According to the decree, the Minister of Interior or the body he authorises may, as they deem fit, take measures against associations and NGOs, such as closure, legal correction, or other measures. On the same date and in reference to this decree, the Council of Ministers issued forth a decision, mandating the Minister of Interior to immediately take proper measures including ceasing the activities of associations and NGOs which were involved in illegal activities. Over a hundred NGOs were dissolved on the basis of the presidential decrees and Council of Ministers’ decisions issued during the state of emergency. These NGOs continue to be dissolved as of the time of writing.

In addition, the General Directorate of Public Affairs and Non-governmental Organisations at the Ministry of Interior has taken action against NGOs in violation of the provisions of the NGO Law as amended and the relevant NGO Bylaw. For example, the General Directorate requires the prior approval of the Ministry of Interior for “any financial transfer” wired by NGOs abroad in coordination with the Palestine Monetary Authority (PMA). This condition applies even if the transfer is to pay the salary of an NGO’s employee, to purchase books for the NGO’s library, or if it is needed to carry out an activity abroad in the context of the organisation’s advocacy work. Such measures taken by the Ministry of Interior have no reliable basis in the NGO Law or NGO Bylaw and violate the provisions of the Basic Law and the basic international human rights treaties, which safeguard the right to freedom of association, notably under Article 22 of the ICCPR, to which the State of Palestine acceded without reservations.

 

To read the full comments on the draft law please click here