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The regulation of Associations in the Arab countries

 

The law of associations is a branch of the law that has drawn little attention from lawyers, not only in the Arab countries, but also in many other parts of the world. These organizations, defined essentially by their not-for-profit characteristic, are far less known and studied than their for-profit companies counterparts. The fundamental right of the freedom of association and its constituting elements, is therefore one of the rights that are most under-defined in international law, thus earning it the label of the “neglected right” by the Lawyer’s Association for Human Rights.
 
Association law in the Arab countries is further ill known, also abused by the various Arab governments who use the regulation of associations as a means for political control of their respective civil societies kept under tutelage. Therefore, the regulation of associations is a reflection of the extent to which governments want to control their civil societies.
 
This presentation is based on the book edited in 1999 by the undersigned, including 9 country studies (in Arabic), titled “Tanzim Al-Jamiiaat fil Dual Al Arabiah” (the Regulation of Associations in the Arab Countries) published in the context of the “Initiative for the Freedom of Association in the Arab Countries” (“the Initiative”)[1].
 
The paper will offer a comparative evaluation of the laws related to associations[2] in the following nine Arab countries: Lebanon, Syria, Jordan, Palestine, Yemen, Egypt, Tunisia, Algeria, and Morocco.
 
It should be pointed out that the evaluation of the law of associations in the Arab countries must take into account not only the text of the statutes, but also the status of the administrative practice, that are either more restrictive than the law itself, many times, in clear violation of the law (e.g. Lebanon, Morocco), or -- converslely and rarely -- more tolerant than the law itself (e.g. Egypt).
 
A.        The Sources of the Regulations:
 
From as early as 1909, the regulation of associations in the Arab countries is heavily influenced by French law rather than Islamic law. The latter source of legislation is still applicable only to the “Wakf” (i.e. Islamic Trust).
 
Throughout the Ottoman Empire covering then most of the present-day Arab countries, the “tanzimat” (Statutory regulations) induced by the European superpowers of the early 20th century, have introduced into the Ottoman law an adaptation of the French association law of 1901[3]. The influence of the French legal tradition was more direct in the Arab north African countries, where the laws of Morocco, Tunisia and Algeria have legislation that are directly influenced by the French 1901 statute.
 
However, as from 1952, the Egyptian law has heavily influenced a number of Arab legislation, particularly the Syrian law (as from 1958 date of the declared union), the Jordanian, and the Palestinian territories.
 
The freedom of association is provided for by most Arab constitutions. Reading these texts will make believe that all is well and rights. However, this freedom is stipulated within the confines of the statutes to which is delegated the function of providing for the details of the regulations.
 
Most Arab countries have ratified major international treaties, including a reference to the freedom of association.
 
 
B.        Current Trends:
 
- Increased control by the state, particularly legitimized by the fear of allowing Islamic fundamentalism organizations.
 
- Liberal regulatory reform attempts, spearheaded by an emerging civil society and sometimes, the judiciary:
-          New relatively liberal laws (Yemen, Palestine, bill in Morocco)
-          (Rare) cases of judicial review (such as the Egyptian constitutional court decision[4], or the Lebanese opinion on the draft new association law[5])
-          A more active participation of Civil Society
-          The Arab Declaration
 
 
C.        Preliminary Evaluation:
 
It can fairly be affirmed that all Arab regulations of associations are inconsistent with the generally recognized standards for the freedom of associations, albeit to varying degrees. One can find the worse practices in these laws, although some good practices can also be spotted in few and rare instances. If one were to attempt at organizing the legal systems into the following three categories:
 
  1. Repressive: systems characterized by very little freedom of association and very high administrative and financial controls, allowing only for the existence of associations that serve the political regime (e.g Syria, Irak, Lybia).
  2. Controlling: Systems characterized by little freedom of association, tolerating the existence of associations but submitting them to high levels of administrative and financial controls (e.g Egypt, Jordan, Tunisia).
  3. Tolerating: Systems characterized by a fair degree of freedom of association, leaving room for selective controls (e.g Lebanon, Morocco, Algeria, Yemen, Palestine).
 
 
1.         Controlled Birth: Licensing of Associations
 
4. The fundamental principle, on which the freedom of Association is based, is the right to form associations without the need to obtain a prior permit or license. Thus, associations are formed by the agreement of their founders; their formation can be made public by a previous information/notification, but may not be subject to any previous intervention by the public administration or the judiciary.
 
All association in the Arab countries must be declared or licensed. Unincorporated associations (called by most jurisdictions as “secret”) are not allowed.
 
Most Arab laws provide for the formation of associations by a license granted by the state (with the exception of Lebanon).
 
Repressive: Discretionary right, Silence of the administration equals a rejection. Several controls to assess need for the association’s activity. Very high number of founding members is required. Police controls are effected with the founders.
 
Controlling: decision to license is limited by a period. Silence equals approval. Right to appeal a denial is granted through courts. Police and other controls.
 
Tolerating:  Formation is subject to a simple filing.
 
 
2.         Controlled Death: Dissolution of Associations and Heavy penalization of violations
 
16. The governing principle is that penalties must be proportionate to the violations, and that no criminal punishment may be applied to the civil activities of associations or their members.
 
17. The principle is that the public administration cannot dissolve associations; associations may not be dissolved except by a resolution passed by its own governing bodies or by a final and enforceable decision of a court, following trial that would have allowed the association the right to defense in a fair and public hearing and in instances that are clearly and limitatively defined by law.
 
Repressive:
 
Controlling:
 
Tolerating:  
 
 
3.         Controlled Activities: Fragmented Legislation Defining the Licensed Activities
 
5. The purposes of associations, irrespective of their qualification or the scope of their activities, their charters and by-laws, the personality of their founders, their affiliation or number, may not be a reason to impose any impediments and hurdles on their formation.
 
The legislative policies pursued by all Arab countries, with very rares exceptions, were to issue separate laws/statutes that are applicable to various types of associations, not necessarily for organizational reasons, but to better control the civil societies, and submit them to the politigal control of the controling regimes.
 
The types of associations governed by separate laws are (at least) the following:
 
-          The common associations, normally referred to as social-service associations.
 
-          Foreign associations
 
-          Political associations and political parties (exception of Lebanese law)
 
-          Labor unions
 
-          Various types of associations (e.g. yoth and sports, mutual societies and cooperatives). Case of Tunisia and Jordan.
 
 
Forced ideologies
 
 
4.         Controlled Management:
 
By-Laws
 
8. The founders of associations enjoy the right to freely set their statutes and by-laws freely without any interference. The public administration may prepare optional forms of such documents in order to assist founders in the formation process and as a service to them.
 
9. Associations have the right to freely amend their statutes and by-laws, including their purposes and scope of activities, at any time according to their statutes and by-laws, and following the same principles applicable to the formation of associations, without interference from the public administration.
 
Directors and management
 
Elections and meetings of general assemblies of members under control and supervision.
 
Meetings under control and supervision
 
Participation to networks (travel)
 
10. Associations are managed by the bodies stipulated in their own statutes and by-laws. The public administration may not interfere in or affect the process of their conducting their meetings, elections and activities.
 
Approval of projects and activities
 
Membership
 
11. The Freedom of Association principle includes the freedom of adhering thereto and withdrawing there-from, as well as the right for associations to set the conditions of their membership.
 
5.         Controlled Financing:
 
13. Associations have the right to develop their financial resources, including but not limited to: members fees and donations, gifts, grants and aid form any natural or corporeal third-party person, local or foreign.
 
Limited capacity to receive funding (distinction between common associations and associations recognized as serving a public interest).
 
 
 


[1]About the Initiative, cf. www.arabifa.org. For the full text of “The Declaration of Principles and Criteria Relating to the Freedom of Association in the Arab Countries” (the “Arab Declaration”), see Appendix 1.
[2] Associations, as used in the context of this paper and the declaration, relates to legal institution known as such under roman/French law, that are non-profit associations of persons, whether incorporated or not, as opposed to companies.
[3] From among all arab countries, the Ottoman 1909 statute is still the applicable law to associations in Lebanon.
[4] Egyptian Constitutional Court decision of June 1rst. 2000, in the case of Hamdi Kader et al. Vs. the State, case No. 4468.
[5] Opinion of the Council of State No. 673 of February 24, 1993 in the subject of a new draft bill amending the association law of 1909.



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