Al-Haq Position Paper on
The Law by Decree No. 7 of 2021 Concerning the Amendment of the Law No. 1 of 2000 on Charitable Associations and Civil Society Organisations and its Amendments
Published in the Palestinian Official Gazette on 2 March 2021, President Mahmoud Abbas promulgated the Law by Decree No. 7 of 2021 Concerning the Amendment of the Law No. 1 of 2000 on Charitable Associations and Civil Society Organisations (Law by Decree Amending the CSO Law). The Law by Decree is in keeping with the persistent flow of laws by decrees, which maintain an approach of complete secrecy. It was passed after the Presidential Decree on the Call for Legislative, Presidential and Palestinian National Council Elections, dated 15 January 2021, and against the backdrop of a major and rapid decline of the Palestinian political system at large. Having reviewed the overall context as well as relevant substantive and formal aspects, Al-Haq pronounces its position on the Law by Decree Amending the CSO Law.
I. The Context of Promulgating Amendments to the CSO Law
The Law by Decree Amending the CSO Law was passed in the context of the state of emergency, which has been in place for a whole year. Declared on 5 March 2020, the ongoing state of emergency constitutes a grave violation of the Basic Law. Article 110 of the Basic Law clearly provides that the state of emergency may only be extended for a period exceeding 30 days if a two-thirds majority of members of the Palestinian Legislative Council (PLC) vote in favour of the extension. This is the majority vote also needed to amend the Basic Law (Constitution) itself. The officially stated purpose for the year-long emergency is to combat and prevent outbreak of the coronavirus (COVID-19) pandemic. However, with a firm hand on the reins of the situation on the ground, neither the President’s Office nor the government has presented a publicly available plan on how to respond to COVID-19 and its increasingly catastrophic consequences on health, socioeconomic, and psychological conditions. Furthermore, unconstitutional as it is, the objective of the state of emergency is unjustified since it is already addressed in full detail under ordinary legislations, particularly the Public Health Law, Consumer Protection Law, Civil Defence Law, Penal Law, Anti-Corruption Law, among others. A novelty in the emergency legislations is that more restrictions are being imposed on the right to freedom of expression and digital rights, as well as invasion of privacy. It appears as well, that the elections will also be held under emergency legislations.
The PLC-approved Law No. 1 of 2000 on Charitable Associations and Civil Society Organisations (CSO Law) is a well-developed Palestinian legislation. It is as the Judicial Authority Law No. 1 of 2000, also passed by the PLC and deemed to be of the best of Arab judicial legislations. Like the Judicial Authority Law, the CSO Law has been similarly targeted by laws by decrees. Following a series of Persistent efforts made over the past years, these attempts have managed to undermine both laws shortly before the elections.
Al-Haq is of the opinion that the Law by Decree Amending the CSO Law finishes off what remains of a Palestinian political system. Targeting Palestinian CSOs with a solid heritage of community action, it coincides with an unceasing attack launched by Israel, the colonial occupying Power, against these CSOs. This assault is maintained both at the official level in Israel and through domestic and international institutions that support the longstanding occupation grounded in pervasive apartheid system across the occupied Palestinian territory (oPt). Israel’s offensive takes on various forms. In addition to death threats, attempts have been made to discredit CSO staff and threaten, intimidate, and disrupt partner financing institutions with a view to cutting off funding to Palestinian CSOs. This has been designed to cripple CSO capability of defending Palestinian rights in the face of systematic international crimes, which fall within the jurisdiction of the International Criminal Court. To this end, Israel initiated efforts to influence international treaty and non-treaty bodies. However, all these incessant attempts have so far failed to overturn the resolve and firmness of Palestinian CSOs and their noble mission in defence of rights.
The Law by Decree Amending the CSO Law comes in a context where Palestinian CSOs operate under extremely complex circumstances to monitor and expose crimes and abuses committed by the Israeli occupying authorities. Besides mounting violations in within the Palestinian context, CSOs are further challenged by broader variables across the Middle East, resulting in scarce financing needed to ensure regular or sustainable achievement of CSO goals and programmes. These changes have been triggered by armed conflicts, victims, and major shifts on the map and priorities of funding. Additionally, CSO functions are affected by onerous financing conditions, which infringe on the Palestinian Basic Law, CSO Law, and rules of international law. Prohibitive requirements have imposed tighter financial constraints on the already dwindling resources of Palestinian CSOs, ultimately putting at risk sustainable civil society action in Palestine.
II. The Law by Decree Amending the CSO Law and Undermining Civil Society Action
On 28 February 2021, President Abbas promulgated the Law by Decree Amending the CSO Law, based on a recommendation made by the Council of Ministers, headed by Dr. Mohammad Shtayyeh, on 11 January 2021. It was published in the Official Gazette on 2 March 2021. A review of the Law by Decree Amending the CSO Law demonstrates large-scale flagrant violations of the Palestinian Basic Law and international conventions, which the State of Palestine acceded to without reservations, particularly the International Covenant on Civil and Political Rights (ICCPR) and international standards of the fundamental right to freedom of association. Contrary to the National Policy Agenda 2017-2022 and good governance requirements, the Law by Decree also infringes on the pillars of transparency and openness to civil society. It reflects a consistent approach of absolute secrecy in the making of laws by decrees, which have undermined the Palestinian political system.
Al-Haq Main Comments on the Law by Decree Amending the CSO Law
- The Law by Decree Amending the CSO Law aligns with the dominant approach since the Palestinian Authority (PA) was established. From its inception, the PA has dealt with CSOs with an eye of mistrust and suspicion, rather than as partners and monitors of the human rights situation to promote rights, freedoms, and principles of transparency and good governance. This approach fits an all too familiar pattern of a rapid collapse of the political system, particularly over the past two years. It flies in the face of obligations set by the international conventions, to which the State of Palestine acceded. Also premised on emergency regulations, the Presidential Decree of 20 February 2021 on the promotion of public freedoms is factually irrelevant, like the international conventions’ reality on the ground. It reflects nothing but an utter disregard of the public, Basic Law, and natural rights enshrined in the Constitution.
- This is not the first time the PLC-approved CSO Law is targeted. In past years, although it failed at times, the executive authority has managed to distort the CSO Law. Eventually, the latest amendment has seriously compromised the CSO Law. Earlier, also based on the Presidential Decree on the Declaration of the State of Emergency, dated 14 June 2007, President Abbas enacted Presidential Decision No. 8 of 2007, mandating the Minister of Interior to immediately take proper measures against associations and CSOs which carry out illegal activities. Without any standards or controls, these provisions were made in overbroad and loosely defined terms. The decision vested the Minister of Interior with an open-ended mandate to suspend those associations and CSOs and submit a weekly report on this matter to the Council of Ministers. Consequently, more than 100 CSOs were, and continue to be, dissolved. As at the time of reporting, these CSOs have not been redressed, forewarning that more CSOs would be dissolved.
- President Abbas promulgated the Law by Decree No. 6 of 2011 on the Amendment of the 2000 CSO Law. Amending Article 39 of the CSO Law, this Law by Decree was designed to seize control, and transfer movable and immovable properties, of dissolved CSOs to the “Public Treasury”. Article 39 of the PLC-approved CSO Law explicitly provides that in the event an association is dissolved, a “waged liquidator” will be appointed to prepare an inventory of its properties and contents, which will be disposed of in the manner prescribed by the CSO statute. If the CSO statute does not outline how properties should be handled following dissolution, the CSO properties will be transferred to other CSOs with a similar purpose. The most recent Law by Decree Amending the CSO Law has further exacerbated the executive encroachment on CSOs. For the second time, it introduces an amendment to Article 39 of the CSO Law, providing that, once a CSO is dissolved, the competent department at the Ministry of Interior (MoI) shall “by itself” implement the procedures for liquidating and taking inventory of the properties of the CSO in question. The department submits a report on the liquidation to the Minister of Interior. The Minister transfers the movable or immovable properties of the dissolved CSO to the Public Treasury. In these particular terms, it seems that insistence on this “abuse” is indicative of a deliberate intention to dissolve additional CSOs, liquidate and take stock of their properties, and transfer them to the Public Treasury by the MoI. In reality, we are faced with a process that entails the seizure of properties of both CSOs and partner financing institutions, constituting a grave breach of the Basic Law. Article 21(4) of the Basic Law explicitly affirms that “confiscation shall be in accordance with a judicial ruling.” It further runs counter to international standards of the right to freedom of association.
- On 7 July 2015, the Council of Ministers promulgated a Regulation on Non-profit Companies (NPC Regulation). Non-profit companies (NPCs) pursue the same goals and purposes as those of CSOs in accordance with the CSO Law. However, the difference between NPCs and CSOs lies in registration procedures. While the former is registered by the Ministry of National Economy (MoNE), registration of the latter is processed by the MoI. Maintaining the same encroachment approach, the NPC Regulation provides for subjecting NPC funding sources to control and prior approval by the government as a prerequisite to access funding. NPCs are also required to state the purpose of funding. As will be seen, this is also in tandem with the latest Law by Decree Amending the CSO Law. In practice, a NPC fills in and submits an application form to access funding to the MoNE. The application is then forwarded by the MoNE Company Controller to the Preventive Security and General Intelligence agencies for approval. If approved by both agencies, the application is referred to the Council of Ministers for discussion and endorsement. This shows how extensively this practice violates the provisions of the Basic Law and relevant international standards.
- Even though the executive branch has emphasised time and again that it does not seek to amend the CSO Law, over the past years, several attempts were tailored to encroach on and seize control of the properties of CSOs and partner financing institutions. For instance, in May 2015, according to a presidential decision, an Advisory Committee for Charitable Associations Affairs was established. Reporting to the President, the committee was mandated to develop a “comprehensive detailed report” on charitable associations operating in Palestine and implement any tasks assigned to it by the President. The decision provided that the committee should submit reports on the outcomes of its work to the President only, as if these outcomes were confidential and of no concern to CSOs themselves. This presidential decision conflicts with the CSO Law, Basic Law, and international standards of the right to freedom of association.
- Additionally, in 2018, the executive put forward a draft law by decree, which also sought to undermine the 2000 CSO Law, duly approved by the PLC. Applying the same secrecy-based approach, this Draft Law by Decree impinged on, and controlled activities and financial resources of, CSOs and partner financing institutions. At the time, CSOs managed to monitor the proposed legislation. Among other things, the draft enactment provided that CSO immovable properties be used within a period of three years from the date of ownership. Otherwise, these properties would be sold at public auction by the executive. It vested the MoI with broad powers to interfere with CSO functions. The MoI would limit the maximum term of CSO boards to four years and supervise board elections and distribution of positions. The Draft Law by Decree also gave enormous powers to the MoI (Minister of Interior) to dissolve a CSO board and appoint a temporary committee to manage the CSO if that CSO contravened any provisions of the 2000 CSO Law as amended, CSO Bylaw, instructions, or decisions issued forth by the executive. The Draft Law by Decree placed more restrictions on CSO functions, further constraining access to contributions and grants. To this avail, it replaced the phrase “notifies the competent ministry” by “[obtains] approval of the competent ministry” for the CSO to collect contributions from the public or organise parties, charity bazaars, sports events, etc. In other words, as put by Article 33 of the Original CSO Law, a CSO only had to inform the competent ministry of this exercise. The 2021 Law by Decree Amending the CSO Law has been devised to tighten the grip on contributions and grants, setting even more stringent restrictions than those prescribed by the 2018 Draft Law by Decree. Along this vein, the most recent Law by Decree provides for “a regulation to be issued forth by the Council of Ministers, in which it sets the terms and conditions of unconditional assistance and collection of contributions.” This evidently implies further interference with CSO financial resources through upcoming “regulations.”
- In relation to the legal references on grounds of which the Law by Decree Amending the CSO Law is enacted, it is noted that it is based on the Council of Ministers’ recommendation of 11 January 2021. It was also promulgated by the President on 28 February 2021. Put differently, there is an interval of one and a half months between approval and recommendation by the Council of Ministers and promulgation by the President. Meantime, no statement was made neither by Dr. Shtayyeh, Prime Minister and Minister of Interior, nor by the government, indicating or suggesting that the Law by Decree had existed. Rather, it was kept in complete secrecy until it was promulgated and published in the Official Gazette on 2 March 2021. Al-Haq is of the view that the executive (President’s Office and government) had a predetermined intent to target CSOs and reduce to naught what remains of the political system. It has been released at a time the public were preoccupied with the electoral process and developments after the decree on general elections had been passed.
- The Law by Decree Amending the 2000 CSO Law is in breach of the constitutional basis, on which it is premised, namely Article 43 of the Basic Law. As is the case of tens of laws by decrees promulgated and published in the Official Gazette, the conditions necessary for the constitutional validity of this and other legislative acts are not fulfilled. The condition of the “necessity that cannot be delayed”, as prescribed by the Basic Law, is not satisfied as a constitutional prerequisite for the Draft Law by Decree to be produced. Issued forth by the PLC, the 2000 CSO Law is already in force. Also, the Law by Decree came on the trail of the Presidential Decree on election of the PLC, which is genuinely competent of the law-making process, on 22 May 2021. Against this backdrop, the Law by Decree represents a blatant breach of the Basic Law, PLC constitutional law-making powers, ICCPR, and international standards of the right to freedom of association. Therefore, it ought to be repealed.
- Article 2 of the Law by Decree amends Article 13 of the Original CSO Law, which addresses approved administrative and financial reports, which CSOs submit at a date not exceeding four months as of the end of the fiscal year to the competent Ministry. A new paragraph is added, obliging CSOs to present to the competent Ministry “an annual plan of action and estimated budget of the new fiscal year, consistent with the plan of the competent Ministry.” Impliedly, CSOs will operate along the lines of the competent Ministry’s plan, not in accordance with their own visions, missions, goals, and programmes. In other words, CSOs will be dealt with as if they were government administrations, reporting to and operating under the orders of the competent Ministry. What is more, CSOs are required to bring their planning and budgeting processes in line with the plan of the competent Ministry. However, the latter does not have a publicly available plan, nor has it discussed CSOs in any relevant plan. In addition, the Law by Decree does not set a time limit for plans of action and estimated budgets to be submitted by CSOs to the competent Ministry during the new fiscal year. Consequently, the whole process will be subject to the whims and caprices of the executive, effectively compromising CSO independence.
- The amendment to Article 13 of the CSO Law takes another step. It requires that the report approved by a certified auditor, as prescribed by the original CSO Law, include “detailed statements and indicators of the impact resulting from the projects and activities of the fiscal year”; i.e. the previous fiscal year. Accordingly, the competent Ministry (executive) becomes the legal reference to assess, albeit without any grounds or criteria available, the outcome and impact of CSO projects and activities on the ground. This Law by Decree readily pinpoints the executive’s pursuit to deal with CSOs as if they were just government agencies of its own. It undermines professional, independent, and free civil society action, oversight of the executive performance, and attempt to hold violations to account.
- Article 3 of the Law by Decree adds a new paragraph, bearing number 3, to Article 30 of the CSO Law. It provides that “salaries of the employees and operating expenses at the Association or Organisation may not exceed 25 percent of the total annual budget.” This means that the executive is in full control of CSO budget line items, distribution, ceilings, and amount of staff salaries out of overall budgets and operating expenses. Without any proper grounds or standards, this blunt encroachment affects CSO budgets and proposed proportions, turning a deaf ear to the nature of CSO activities and the staff who carry about these activities. The amendment is introduced without consultation with CSO. It appears as if CSOs and partner donors have nothing to do with their own budgets. Worth of note is that CSOs that have for years invested in their staff to implement their activities and projects will inevitably falter. Al-Haq is of the view that this will make civil society action more like contracting works and commercial enterprises, rendering it meaningless in rights and national terms.
- In contravention to the Constitution and international standards, the Law by Decree sanctions large-scale executive infringements on CSO plans, activities, budgets, and budget distribution. These irregularities should be viewed in the light of provisions of the Law by Decree, which unveil a clear executive attempt to encroach on and dissolve CSOs. The MoI itself will be in charge of liquidating CSOs after they are dissolved. Reflecting unconstitutional seizure, the MoI will take stock of and transfer SCO movable and immovable properties to the “Public Treasury”.
- The sweeping executive impingement on CSOs needs to be assessed in view of the widespread breakdown of, and executive control over, the Judicial Authority. Most recently, laws by decrees have been enacted, undermining the judicial system, creating a stifling police state atmosphere, and intimidating judges. These legislative acts have put in place multiple forms of dismissals and removed tens of judges from office. Hence, the judicial role in safeguarding the right to freedom of association enshrined in the Constitution and international standards has been far from being accomplished.
- Article 4 of the Law by Decree amends Article 33 of the Original CSO Law, already endorsed by the PLC. It provides that “[t]he Association or Organisation shall have the right to collect contributions from the public or by means of organising parties, charity bazaars, and sports competitions, or any other means of collecting funds for the social purposes for which it was established, in accordance with a regulation to be issued forth by the Council of Ministers, in which it sets the terms and conditions of unconditional assistance and collection of contributions.” Al-Haq asserts that this provision falls in the context of the (old and new) end goal of this Law by Decree, namely, a tighter grip on CSO properties, plans, and projects. These will also be dealt with as if they were government bodies, reporting to, placed at the service of, and implementing instructions issued by the executive.
- Amending Article 39 of the Original CSO Law, Article 5 of the Law by Decree prescribes procedures for dissolving CSOs. The MoI will be responsible for liquidating and taking stock of CSO movable and immovable properties. A report thereon is submitted to the Minister of Interior, who transfers these properties to the Public Treasury, though excluding the pensions, honoraria, and rights of the CSO employees. As stated above, this provision foreshadows the dissolution of many CSOs, whose properties would devolve to the “Public Treasury”. Therefore, many human rights defenders would be deprived of their work at CSOs against a background of deteriorating economic conditions and COVID-19 pandemic.
- Article 6 of the Law by Decree amends Article 40 of the CSO Law by adding a new paragraph, bearing number 2. This provides that “[t]he Council of Ministers shall issue forth a regulation, in which it determines the fees which the Association or Organisation must pay for any new applications it submits to the Ministry, in the event they are not covered by the fees described under the Law.” This amendment is also in violation of Article 88 of the Basic Law, which specifically prescribes that “[p]ublic taxes and duties shall be imposed, amended and repealed only by law. […]” It is, therefore, constitutionally prohibited that fees be collected from CSOs on grounds of a regulation passed by the Council of Ministers.
- In total, Al-Haq stresses that the Law by Decree Amending the CSO Law is in contravention to Article 20 of the Universal Declaration of Human Rights and Article 22 of the ICCPR, which highlight the fundamental right to freedom of association and safeguard the independence, activities, and financial resources of CSOs. It also violates many resolutions of the United Nations Human Rights Council (HRC), including Resolution A/HRC/RES/22/6. Dated 21 March 2013, this resolution calls on States to ensure that requirements placed on organs of society do not inhibit functional autonomy, and that restrictions are not discriminatorily imposed on potential sources of funding. Also, the Special Rapporteur on the rights to freedom of peaceful assembly and of association considered that funding was a key theme, which falls under his mandate. In his report to the HRC, dated 13 April 2013, the Special Rapporteur asserted that “[i]t is paradoxical that some of the States stigmatizing foreign-funded associations in their own countries are receiving foreign funding themselves (in the form of loans, financing or development assistance), often in substantially greater amounts than that flowing to CSOs in their country.” The Special Rapporteur recommended to “create and maintain, in law and in practice, an enabling environment for the enjoyment of the right to freedom of association” and “ensure that those who violate and/or abuse the right of individuals to freedom of association are held fully accountable.”
III. The Right to Freedom of Association and Civil Society Action
In the oPt, the right to freedom of association and civil society action is a fundamental human right, enshrined in the Palestinian Basic Law (Constitution), PLC-approved CSO Law, and relevant international standards. Against this background, Al-Haq stresses the following:
- Repeal the Law by Decree Amending the CSO Law because it is in grave breach of the Basic Law, CSO Law, and international conventions and standards, which ensure the right to freedom of association.
- Repeal the Laws by Decrees No. 39, 40, and 41, which have effectively undermined the Judicial Authority. A unified High Judicial Council should be established in line with the Basic Law and PLC-approved Judicial Authority Law of 2002 with a view to protecting constitutional rights and freedoms.
- Abolish the decisions on formation of the Supreme Constitutional Court (SCC). This is since the establishment and legal oath of the SCC panel are in conflict with the Basic Law and SCC Law. According to Article 104 of the Basic Law, the High Court shall temporarily assume the SCC tasks until such time the SCC is re-established, ensuring the norms of independence, impartiality, competence, professionalism, and ability to guard the Constitution and protect constitutional rights and liberties.
- Put an end to the year-long state of emergency in view of flagrant violations of the Basic Law and constitutional rights and freedom. Given that a decree calling for general elections has been passed, the PLC constitutional powers need to be duly honoured.
- Launch joint action by human rights actors to address urgent appeals to the UN special rapporteurs, particularly the Special Rapporteur on the rights to freedom of peaceful assembly and of association and Special Rapporteur on the independence of judges and lawyers, as the ongoing breakdown and serious violations of judicial functions and civil society action fall within their mandates.
- Address urgent communications to all partner financing institutions, laying out the critical new developments, namely, the enactment and release of the Law by Decree Amending the CSO Law. As partners in activities and funding, the donor community will be called for a meeting to be held soon for a discussion of these developments.