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Creating an Anti-Corruption Ethos: Civil Society and Donors Working Together

 

Associations and civil Society:
 
The fundamental building-block of civil society is the the association[1], civil society was defined by David Beetham as “the nexus of associations through which people organize independently to manage their own affairs, and which cn can also act as a channel of influence upon government and a check on its powers[2].
 
 
The Importance of Association:
 
Associations play an important and fundamental role in a large number of functions and fields, the most important being:
 
-          sustainable human development;
- developing the citizen’s interest in public issues, and
- empowering the association’s members, improving on their potential, directing their - - efforts, assuring the Association’s institutional continuity and independence, and
- enhancing democracy, democratic culture and strengthening civil society;
 
-          a promoter of democracy and a shield against dictatorship:
 
Alexis de Tockeville: There is no country where associations are more needed to prevent the despotism of parties or the arbitrary of a prince, than those [countries] where the system is democratic … in the countries where such associations do not exist, … I see no limit anymore to any sort of tyrany, and a great society can be oppressed in all impunity by a handful of agitators or by a single man.
 
 
Importance of the Freedom of Associations:
 
Associations cannot play these important roles, without the freedom of Association, which Alexis de Tockeville called: the mother of all other freedoms.
 
>>> Lack of clear definition of the substance of the Freedom of Associations, called by the Lawyer’s Committee for Human Rights: “the Neglected Right”.
 
The sources of the freedom of association presently are the following:
 
-          most Arab constitutions,
-          article 20 of the “Universal Declaration of Human Rights”,
-          article 22 of the “International Covenant on Civil and Political Rights”,
-          ILO’s “Convention on Freedom of Association and Protection of the Right to Organize”,
-          the declaration issued by the United Nations’ General Assembly titled “Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms”, known in short as: “the declaration for the protection of the human rights defenders”;
 
 
Need for detailed criteria for the freedom of associations: cite a number of attempts (world Bank, UN, the Arab Initiative for the Freedom of Associations).
 
 
What limits are possible to be put on such fundamental freedoms ?.
 
 
The Elements of the Freedom of Associations:
 
A review of the following elements, and the way in which they are regulated and practiced by the administration, will illustrate he importance of the freedom of association for an independent and vibrant civil society:
 
1.       The Freedom to incorporate without prior licensing
2.       Freedom to establish by-laws
3.       Freedom to manage associations
4.       Freedom to fund
5.       Control and supervision of associations
6.       Free Dissolution
 
 


The Associations Law in Lebanon and the current violations
 
 
 
The incorporation of the so called “foreign” associations, “youth and sports” Associations as well as syndicates and labor unions, are subject to a restrictive legal regime that provide for prior licensing by administrative authorities (the council of ministers, the ministries of Education and Labor respectively).
 
Such regime is a restrictive deviation from the common law liberal regime applicable by virtue of a 1909 statute to all other types of associations, including political parties (“Common Law Associations”), that can freely incorporate by an information letter served to the competent administration against a receipt. As provided by law, Common Law Associations are created as follows: 
 
1.             The existence of all associations must be brought to the attention of the competent administration in writing by an Information Letter (i.e. unincorporated associations are illegal in Lebanon).
 
2.             The Information Letter must be signed by the founding members and must include the following information: date of incorporation, name of the association, object, domicile, name, occupation and addresses of the founding members, names of the administrating members and the association’s representative with the government.
 
3.             The Information Letter must be served to the Interior Ministry (if the association in domiciled in Beirut) or to the competent Mohafez (if the association is domiciled outside Beirut). Against notice of the letter, the founders are delivered a receipt called “Ilm Wa Khabar”.
 
4.             The Law considers the association incorporated as from the notification date of the Information Letter (and not the date of receipt by the founders of the Ilm Wa Khabar).
 
5.             The process described above, applies as well to any changes introduced by the association to any of the information notified to the competent administration (i.e. changes of name, domicile, administrators, provisions of the charter or by-laws). Administrative authorities can only take notice of such changes and may not intervene to accept or reject them, or apply any prior control or licensing.
 
 
This process of free incorporation and management of the association (i.e. by notice served and not by prior licensing) has a constitutional value; unanimous doctrine and consistent court precedents confirm the above.
 
 
 
However, the association law and the legal process as described guaranteeing the free incorporation and management of associations is in practice, continuously and systematically violated by the Interior Ministry, which has de-facto transformed the freedom of association into an illegal process of prior licensing and control. This process does lend itself to abusive interventions, often politically motivated, into the incorporation and management of associations. We shall outline briefly hereafter a number of these violations of clear provisions of the law:
 
1.             The delivery of the Information Letter was limited by practice to the Interior Ministry, while the law provides for their delivery to the Mohafez (i.e. a regional administrator) if the seat of the association was not Beirut.
 
2.             The Information Letter (wrongly referred to by employees and citizen as an "application") is in practice circulated for inquiries and opinion to a number of police authorities (who often conduct interrogations with the incorporating members) and to the various ministries concerned by the associations' purpose. The opinion of such authorities influence and often determine the decision of the Interior Ministry to deliver or not the Incorporation Receipt.
 
3.             The Interior Ministry interferes in the drafting of the incorporation documents of associations (e.g. name of the association, statement of purpose, various provisions of the Charter and by-laws). The opinion and requests of the Ministry are rarely made based on any mandatory provisions of the law. If they are not taken into account, this jeopardizes the possibility for the association to receive the Incorporation Receipt.
 
4.             The Interior Ministry often refuses to receive the Information Letters of associations it labels "political" which it considers, without any legal basis, as being subject to an application for a prior license to the Council of Ministers. This violation does not concern political parties only, but also extends to human rights associations (e.g. the Association for the Defense of Rights and Freedoms) and citizens action groups (e.g the Lebanese Association for the Democracy of Elections).
 
5.             The Interior Ministry interferes as well in the management of associations. In one blatant case, the Council of Ministers appointed the governing boards of the Lebanese Red Cross association (by Decree No. 1881 of November 7, 1991). In another recent instance, the Interior Ministry has by a "circular" (decision No. 17/4/c of January 16, 1996) ordered associations to invite delegates from the Ministry to their general assemblies called to vote on amendments of statutes or by-laws, or to elect managing boards or officers; it further required the approval of the Ministry on all amendments prior to their becoming effective. The associations that would fail to abide by these "requirements" were warned that they could be dissolved. That threat was also extended to associations that would not deliver to the Interior Ministry copies of their accounts, budgets and membership lists, while the violation of this latter legal provision, can only be subject to a fine.
 
 
 
 
6.             In the worst case of violation, the Council of Ministers has dissolved on the basis of no legal or factual grounds, 138 associations and political parties (Decree No. 2231 of February 15, 1992). The Decree decided to "withdraw licenses", as it stated, and was based upon the provisions of a 1983 Law Decree that was repealed in 1984 for being unconstitutional.
 
 
We therefore recommend to stop the systematic violations of the Association law, and invite the concerned administrations (particularly the Interior Ministry) to respect the right of free incorporation of associations (including political parties) without any license or prior administrative or police control, as well as their right for free and unhindered management. The law should also be amended to afford labor unions and syndicates as well as youth and sports associations the same protections.
 
 
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[1]“NGO” shall mean: an association or body of persons (individuals or incorporated organizations) uniting together permanently or for a set period of time, for a purpose or business that does not seek the distribution of profits to its members.
 
Such definition will thus include many types of NGOs/associations, including but not limited to: foreign and domestic, religious and secular, federations of associations and NGO networks, organizations and clubs incorporated for various purposes (e.g. social and humanitarian, cultural and educational, recreational and sports, youth activities), professional orders and regulatory bodies, labor unions, political organizations and parties, cooperatives, mutual societies … etc.
 
[2]David Beetham ed., Defining and measuring democracy.



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