“Unleashing latent social potentials and powers is the core responsibility of the civil society whose existence and effectiveness is the most significant indicator to democracy. To enable the civil society to practice its entitled role, it needs not only unbounded legal environment but also an incentive one for work and creativity. The current relationship between civil society and political authority in the Palestinian Law is neither rightful nor healthy. It gives a wide space for ministries and security services to intervene in civil society work and activities. As human rights organizations, we consider the subjugation of association to security checks and conditioning its existence and work to security reports to be a grave attempt to undermine our work. This is crucial in light of our mandate to monitor the practices of theses bodies and their compliance with the principles of democracy and the rule of law.”
Civil Society Organizations (CSOs) face growing difficulties in their work due to a climate full of constraints, restrictions and obstacles. While the Israeli authorities continue to attack CSOs, especially human rights organizations, to undermine their credibility and dry up their funding sources, the Palestinian Government adopts practices to control these organizations and put their independence to death, especially after the Palestinian division that stirred further repression of freedoms and civic work. The Palestinian Authority (PA’s) policies against CSOs resulted in increasing challenges through a series of legislations and procedures that affect their work and threaten their existence and independence. This paper deals with the recent restrictive financial measures on non-profit companies, as a component of civil society, and addresses the violation of the right to association, posing a new challenge to perform their work. This paper also has come up with a set of conclusions and positions; the most prominent of which are:
The decrees issued by the Palestinian Cabinet relevant to the non-profit companies are politicized tools to undermine the independence and activities of these companies, particularly the human rights organizations. PCHR reiterates its absolute rejection of these decrees, including Cabinet’s Decree no. (15/9/17/M.W./ R. H)/2016 issued on 21 April 2016; Cabinet’s Decree No. (8)/2015, Amending the Regulation on Non-Profit Companies No. (3)/2010; Cabinet’s Decree No. 7/2015 relevant to Non-Profit Companies; and Cabinet’s Decree No. (3)/2010 relevant to Regulation on Non-Profit Companies.
There is no need for the arbitrary procedures enacted by the Cabinet in terms of giving a prior approval for the non-profit companies to receive grants in light of the intense monitoring by the donor organizations, including international governmental organizations or others that have never been suspected of money laundering. Moreover, these procedures, each time, take months to be accomplished as the company undergoes an investigation and a complete security check, reflecting a blatant interference into the company’s work and source management to hinder its work and invade its privacy and freedom of practicing activities. PCHR believes that such complex procedures should be taken only in exceptional cases, if justified, against a certain company and upon a decision by a competent court as a precaution, but under no circumstances may these procedures be generally applied on all companies. PCHR believes that these procedures are an implicit bargain to force them to bow down and never expose the government’s anti-human rights practices and policies.
PCHR stresses that the decrees and practices, discussed hereinafter, explicitly violate the international standards on freedom of association, particularly Article (22) of the International Covenant on Civil and Political Rights and Article (8) of the International Covenant on Economic, Social and Cultural Rights. They also violate all interpretations of these standards and the practices revealed by the Human Rights Council (HRC’s) Special Rapporteurs on the rights to freedom of peaceful assembly and association. Thus, PCHR calls upon:
Non-profit companies, particularly human rights organizations, are subject to growing pressures due to the arbitrary practices by the Israeli occupying authorities and the national authorities controlling the Gaza Strip and the West Bank. These practices aim at shrinking the freedom space for the CSOs and attempting at undermining their independence and ability to practice their role especially that is relevant to exposing human rights violations and enhancing the rule of domestic and international law. The latest and most effective of these practices was the Palestinian Cabinet’s decrees stipulating prior approval is mandatory to the non-profit companies in each time they need to receive funds and grants.
The non-profit company is one of the associations forms that was defined by the Special Rapporteur on freedom of peaceful assembly and of association as “any groups of individuals or any legal entities brought together in order to collectively act, express, promote, pursue or defend a field of common interests.“[1] Accordingly, Associations[2] are a form of CSOs, which include charities, NGOs, cooperatives, syndicates, non-profit companies, and family associations. All forms of non-profit associations enjoy the same rights according to the international standards regardless of whether they are registered, the way they are formed, or the law regulating them. Thus, these associations should be enabled to enjoy their right to exist and operate freely in addition to recognizing their right to privacy and receive funding, especially foreign funding.
Human rights organizations are an important part of civil society which is mandated to promote the protection, respect and fulfillment of human rights. The presence of such organizations is indispensable in any society to combat the corruption of those in power through litigation and advocacy. The international cooperation in this field is urgent in this field to enable the effective operation of these organizations by receiving foreign and international funding and enjoying their right to exchange information and expertise with other international organizations, particularly UN bodies and other international treaty bodies of the conventions which Palestine has signed on. The non-profit companies are the most appropriate form for human rights and specialized organizations as this form prioritizes professional considerations over any other.
The Palestinian political division in 2007 was a setback to the human rights situation, particularly the right to freedom of association.[3] The two parties to division have worked on tightening the screws on the work of associations in the West Bank and Gaza Strip for political and ideological purposes resulted from the state of division. Further, the two parties utilized all means of law to pass their violations either by issuing regulations or making amendments to laws, attempting to legalize their actions against the right to freedom of association. These means led to a serious deterioration of the Palestinian legal order and rule of law, foreshadowing as well, an increasingly deteriorating status of human rights and freedoms.
Targeting non-profit companies through controlling and affecting their sources of funding, whether by Israeli forces or the PA, became one of the prominent violations practiced against that kind of organizations working in the oPt. Israeli forces practice pressure on the international donors to stop the funding of some Palestinian organizations, particularly human rights organizations. The Israeli forces succeeded in convincing some donors to stop funding some organizations based on false allegations. Furthermore, the PA targeted the organizations’ funding through imposing an exaggerated oversight on the acceptance of donations and financial grants and make them conditional with a series of governmental and security ratifications in a way that forces these organizations to use the implicit bargaining, which contradicts with their independence in practicing their activities, especially the human right organizations whose work is based on criticizing the PA practices.
Non-profit companies’ work is organized though decrees issued by the Palestinian Cabinet based on decrees that allow forming this kind of non-profit companies. The Palestinian Cabinet issued several decrees to organize their work. Despite that these decrees are applicable only in the West Bank, they are also applicable on non-profit companies in the Gaza Strip, especially those having head offices in the West Bank. The non-profit companies further are incapable to open a new bank account and receive or transfer money from it unless they receive the approval of the Monetary Authority, which in turn, only adopts the regulation issued by the West Bank authorities. Therefore, non-profit companies in the Gaza Strip are subjected to decrees issued in the West Bank and those issued in the Gaza Strip[4] too.
This report addresses the financial restrictions imposed by the PA in Ramallah on the non-profit companies and analyzes the Palestinian Cabinet’s decrees issued concerning this matter and if they comply with the international standards. That can be seen in three terms: the right to form associations, including non-profit companies in accordance with the international standards; the legal regulation of the non-profit companies’ obtaining funds; and PCHR position of the restrictions and procedures imposed by the Palestinian Cabinet’s decrees in light of the international standards.
The State of Palestine acceded to a number of international conventions in 2014, including the 2 international covenants on human rights. Therefore, it is obliged to implement these conventions and amend their legislations and align their practices to comply with the obligations enshrined therein. The 2 international covenants affirmed the right to form associations and stipulated that it is a reasonably restricted right to enable the association to practice its work freely and independently in a democratic society. Article (22) of the International Covenant on Civil and Political Rights stipulates:
“1. Everyone shall have the right to freedom of association with others, including the right to form and join trade unions for the protection of his in interests. 2. No restrictions may be placed on the exercise of this right other than those which are prescribed by law and which are necessary in a democratic society in the in interests of national security or public safety, public order (or republic), the protection of public health or morals or the protection of the rights and freedoms of others. This article shall not prevent the imposition of lawful restrictions on members of the armed forces and of the police in their exercise of this right.”
Article (8) of the International Covenant on Economic, Social and Cultural Rights stressed the same concerning associations and syndicates.
As such, it is clear that the right to form associations shall be without discrimination between civilians and non-civilians or any other form of discrimination, as the first Paragraph of Article (22) mentioned “everyone”. This right includes forming and joining associations. As for the second Paragraph of the same Article, it is relevant to the boundaries set by the convention to impose restrictions on the freedom of association. The convention set a number of conditions:
The HRC approved a resolution in October 2010 in which they affirmed the right to form associations as an essential element that is indispensable in any democratic state and no restrictions shall be imposed on association unless those imposed by the International Human Rights Law. [5] The resolution also created the mandate of the Special Rapporteur on the rights to freedom of peaceful assembly and of association.[6] Since then, the Special Rapporteurs worked on issuing reports, some of which are thamtic that addressed important clarification of the right to form associations and worked on highlighting the most prominent practices universally[7]. A thematic report was issued by the Special Rapporteur in 2012[8] in which he defined 4 main rights relevant to the right to form associations:
This right is guaranteed for everyone whether they hold the states’ nationality or were foreigners and age-restrictions shall not be placed in regard to forming associations. Therefore, like adults, children are allowed to form and join associations. In return, paragraph (2) of Article (8) of the International Covenant on Economic, Social and Cultural Rights approved restrictions on the right of members of the armed forces to form and join associations. In the same context, the Special Rapporteur confirmed that registration shall not be a condition to practice the association’s activities and protection and rights should be equal for registered and non-registered associations. The Special Rapporteur also considered that notifying the competent authorities to establish the association is enough for registration.[9]
The Special Rapporteur affirmed that the associations should practice their activities freely without intervention and considered that threatening and targeting association and those working in it as well as defaming them to undermine their work is a flagrant violation of human rights. The association must also enjoy freedom of expression and publication and freedom of peaceful assembly.[10]
The Special Rapporteur considered the ability for associations to access funding and resources as an integral and vital part of the right to freedom of association[11], and administrating or using funds must not be restricted as long as they are used in legitimate works in a democratic state. The Special Rapporteur stressed that any associations, both registered or unregistered, should have the right to seek and secure funding and resources from domestic, foreign, and international entity. In some countries, domestic funding is very limited, leading non-governmental organizations to rely on and obtain foreign funds as part of the international cooperation, which should be authorized for civil society as much as governments.[12]
The Special Rapporteur stated that associations have the right to participate in public affairs through involving them in decision making process relevant to the public affair. He also stressed that associations should be part of the drafting process of any laws or decisions related to organizing their work. The Special Rapporteur recognizes that best practices are those that allow for genuine social dialogue with meaningful negotiation.[13]
The existence of non-profit companies in Palestine is based on the two companies’ laws applicable in the West Bank and Gaza Strip, which are Article (4) of the Law by Decree No. (6) of 2008 on the amendment of the Companies Law of 1964 applicable in the West Bank, and Article (23) of the Companies Law of 1929 applicable in the Gaza Strip.
The Palestinian government issued regulations and decisions related to non-profit companies to regulate their work after the amendment of the Companies Law applicable in the West Bank[14]. Therefore, the Palestinian cabinet issued Decree No. (3)/2010 concerning non-profit companies that were criticized by PCHR due to violating the right to association, especially the right to exist. This decree considers the formation of non-profit companies a grant by the Registrar of Companies, includes restrictions on the freedom to conduct activities, and decides to dissolve non-profit companies for arbitrary reasons.
Instead of retreating and reorganizing non-profit companies in consistency with Palestine’s international obligations relating to the right to association, the Palestinian cabinet issued another decree to deepen these restrictions, namely Cabinet Decree No. 7 of 2015 concerning non-profit companies, which subjected non-profit companies to the Anti-Corruption Law No. 1 of 2005.
Pursuant to that decree, the Palestinian Cabinet’s Decree No. (8)/2015 amending non-profit companies Law No. 3/2010 was issued. This decree amended Article (11) concerning the power of non-profit companies to obtain financing and added a new paragraph stating: “obtain a prior approval from the Palestinian cabinet to receive grants, donations, and funding, and NPCs must provide reasons for the funding.” Afterwards, the Palestinian Cabinet issued Decree No. (15/9/17/M.W./ R. H)/2016) on 21 April 2016 to regulate the essential procedures for the non-profit companies to be able to accept donations, grants and funding.
The mentioned decree divided the approval process into seven stages: the company shall fill an application for the prior approval to receive a grant; the application shall be examined by the Companies Controller, who then shall refer it to the Minister of National Economy with his opinion; The Cabinet Shall examine the application before reviewing it in the Cabinet meeting; the Secretariat of the Cabinet shall provide the Ministry of Economy with the decision; the Companies Controller shall provide the Monetary Authority with the Cabinet’s decision; and the Palestinian Monetary Authority shall notify the Palestinian Banks.
The company needs to apply for the Cabinet’s approval each time it wants to receive a grant or funds totaling over a year more than $ 100,000. The application shall be submitted by filling in a special form prepared by the Companies Controller.
If the total amount of grants required for approval is less than that, the company is exempted from obtaining the approval of the cabinet, upon the nomination of the Companies Controller. This proposal means that the non-profit company will need to submit a new application each time it wants to receive approval to receive a new grant. If the grant is more than $ 100,000, the company will need to apply for the cabinet approval to receive the grant, if less, the company will need to apply to the Registrar of Companies for exemption from cabinet approval, otherwise the company will not be able to deposit funds or receive a grant on its account.
Article (1) of the Cabinet’s Decree stipulates that the Companies Controller “shall examine the manner and method by which they receive aid and donations, sources of funding, manner of expenditure in accordance with the nature of the non-profit company’s work and rules of procedures and objectives. To do so, the controller can seek help from any governmental body deemed appropriate to verify the company’s work and data.” Accordingly, the Company Controller shall always refer the application to the Preventive Security, General Intelligence Services and the competent ministries relevant to the funded projects, to give their security and professional recommendations in this regard. These bodies may request to meet with representatives of the company and subject them to a semi-investigation on the source of funding and expenditure. Moreover, Paragraph (3) of Article (1) stipulates that: “Non-profit companies must provide the Company Controller with any documents or data they request to ensure that the manner and method by which aid and donations, sources of funding and manner of expenditure meet the goals and objectives of the company.” In practice, all the bodies mentioned herein, and not only the Companies Controller, have the power to request all the papers needed so that the Company can obtain the approval.
Paragraph (2) of Article (1) binds the Company Controller to refer the application to the Minister of Economy asking him for his opinion to approve or reject the application for up to 7 days from the day it was referred. However, the reality is completely different as PCHR emphasizes that the security check by the Preventive Security and General Intelligence services and obtaining the approval of the competent ministries in fact take weeks and months. The company is usually asked for an interview either with the security services or the competent ministries, which can ask for any papers they want. Undue information is often requested about the project, the activities to be carried out, staff and their salaries; but it goes beyond that to interfere into the companies’ finance and budgeting. Those in charge of the check may ask for unrealistic papers, such as the funding contracts, forcing the company to wait until the contracts are signed and then proceed with procedures to gain the approval on the funds from the Cabinet. As a result, the receipt of funds is delayed as well as the payment of financial dues.
After the Company Controller obtains the approved security check from the security services and having approvals from the relevant ministries, “the Controller shall refer the application to the Minister of National Economy asking for his opinion to approve or reject the application. The Minister will then examine the file and then refer it to the Cabinet. This sometimes takes several days due to the slow bureaucratic process in the ministries.
A competent office in the Cabinet shall examine the applications referred by the Minister before being reviewed by the Cabinet. This office has the power to review all details and ensure that all papers are complete in order to be presented in the first Cabinet’s meeting. The Cabinet shall then take the decision it deems appropriate to either reject or approve the application. This procedure can take sometimes weeks, due to the governmental bodies’ bureaucratic procedures.
Paragraph (5) of Article (1) in the Decree stipulates that “The Cabinet’s General Secretariat shall provide the Ministry of National Economy with a copy of the decision immediately upon its issuance”. Although this procedure lacks discretion that would make any delay, the Government bureaucratic procedures can take several days.
Paragraph (6) of Article (1) of the Cabinet’s Decree provides that “The Companies Controller shall provide the Monetary Authority with the relevant Cabinet’s decision. This procedure is also a routine; presumably, it does not take that much time, but the reality reveals it takes several more days.
Finally, according to Article (6) of the same decree, the Palestinian Monetary Authority (PMA) is responsible for “Informing the Palestinian banks of the Cabinet’s decision”. As a new procedure, it would also require a prolonged period of time until it is implemented. In reality, this new requirement is not justified and essentially bureaucratic since the General Secretariat of the Palestinian Cabinet could directly notify PMA.
Consequently, the Palestinian Cabinet’s decree requires a company to engage in a series of long procedures including security checks, and investigation-like intervention from the security services and relevant ministries. Even more, PCHR observed that some ministries seek further restrictions on NGOs, suggesting that NGOs seek their approval on each project before submission to donors. This is a flagrant violation of civil society’s right to independence from the political society, and an attempt to force civil society into subordination, in order to fill the government’s shortfalls.
The Palestinian Cabinet’s decrees regulating the right to form non-profit companies represent a grave violation of said right, and violated its four foundational rights:
The Special Rapporteur on the rights to freedom of peaceful assembly and of association warned against the use of restrictive laws “The other major legislative trend affecting the right to peaceful assembly and association is the narrowing of an enabling environment for civil society through the adoption of restrictive laws regulating civic space. Repressive legislation is used to crack down on dissent, by creating a complex legal environment with burdensome requirements for the functioning civic organizations and groups. In the name of transparency, associations are required to comply with complicated, restrictive and invasive regulations in order to operate. Often these laws contain clauses which threaten associations with deregistration, losing their legal existence or even criminal prosecutions for non-compliance. This has the effect of destabilizing and intimidating associations by generating confusion and increasing the administrative burden of continuing their activities, while instilling fear of action among their ranks.”[15] The report also affirmed that grants, incentives and tax exemptions may not be used as a justification for excessive interference in the internal affairs of associations.[16]
Over the course of the past 3 years, the Council of Ministers’ decrees were in line of a series of arbitrary measures and systems against associations in general, and the non-profit companies in particular. This paper addresses the financial procedures required for non-profit companies. These new procedures compromise the independence of a key component of civil society, especially organizations that require expertise and professional work skills such as human rights organizations (HROs). Naturally, such restrictions subjugate HROs and their work on monitoring authorities and holding them accountable. Consequently, HROs would be unable to fulfil their mandates due to the threat of compromising their funding.
The unnecessary complex procedures imposed by the Cabinet on non-profit companies’ receipt of funding from national or foreign sources, forces companies to go on a lengthy bureaucratic process to receive or make any transfers in their banks. These complexities affect the day-to-day work of non-profit companies, including delays in fulfilling their financial obligations and the consequent delay in implementing activities and work-plans. These amendments are in fact tools for governmental intervention in non-profit companies up to the level of their activities, who runs them and their salaries as well as other internal affairs. The Cabinet defends its interventions under the pretext of fighting terrorism and corruption. The Special Rapporteur on the rights to freedom of peaceful assembly and of association expressed concern on such actions, “Funding restrictions, including restrictions on foreign funding, may disproportionately affect associations that promote issues that do not enjoy popularity or the support of the State or the majority of the population, including those that relate to the advancement of the rights of marginalized groups.”[17]
It is noteworthy that non-profit companies are under extreme scrutiny from donors, and the Company Controller of the Ministry of National Economy who receives certified annual financial and administrative reports. Hence, it is evident that the declared purpose of countering corruption is false as the newly imposed have no added value. If the government intention was to counter money laundering and terrorism financing, then over-breadth rules cannot be used against all non-profit companies especially in crimes of such grand scale. For example, it would grant better results to target suspicious organizations with a precautionary judicial decision. Otherwise, grouping all non-profit companies under the same category and enforcing the same restrictions on every source of funding is considered arbitrary, especially when funding is supplied by trusted and respected sources such as governments or renowned international organizations or to a renowned local organization with known activities.
The Special Rapporteur on the rights to freedom of peaceful assembly and of association considered the provision requiring association to obtain governmental permission to receive funding is an unjustified obstacle.[18] While the Special Rapporteur recognized that “States have a legitimate obligation to protect their national security and public safety. However, this legitimate interest should never be used as an excuse to silence critical or diverse voices.”[19] The Special Rapporteur further criticized some countries for requiring associations to get the government’s permission to receive foreign funding, and considering it a crime to acquiring such funding without prior approval.[20] Governments were also criticized for giving associations harsh treatment in alleged counter terrorism efforts.[21]
Within this context, the Special Rapporteur asserted that associations’ ability to receive funds and access resources is vital for the execution of the right to form associations.[22] Also, “The Special Rapporteur has repeatedly underlined that the ability to seek, secure and use resources — from domestic, foreign and international sources — is essential to the existence and effective operations of any association, no matter how small.”[23] Furthermore, the Special Rapporteur emphasized that governments should allow non-governmental NGOs to access foreign funding as part of international cooperation, which is allowed to civil society just as much as governments are.[24]
Thereby, PCHR rejects in absolute terms the procedures initiated by the Cabinet to monitor the work of non-profit companies, as they target these associations’ right to access funding and made it subject to the Cabinet’s approval under a complex and mundane process that would require months to be fulfilled. PCHR considers the continued application of these decisions, despite being promised they would be reconsidered, to be a predetermined and systematic attempt to undermine civil society, especially human rights organizations. It is extortion to silence and absent critical voices of the government’s work and policies that violate human rights.
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[1] Human Rights Council Twentieth session Agenda, Report of the Special Rapporteur on the rights to freedom of peaceful assembly and of association, Maina Kiai, (A/HRC/20/27) https://www.ohchr.org/Documents/HRBodies/HRCouncil/RegularSession/Session20/A-HRC-20-27_en.pdf
[2] According to the Palestinian Law, the non-profit companies are called associations that are regulated by the 2000 Charities and NGOs Law.
[3] The Palestinian division took place in June 2007 after Hamas movement gained an overwhelming majority in the Palestinian Legislative Council (PLC) elections in 2006 and so formed the government. This led to arguments between Hamas and Fatah movements and then developed into armed clashes, where PA security services and Hamas and Fatah affiliates took part. As a result, Hamas took over the PA’s headquarters in Gaza. Later, 2 separate governments, 2 judiciaries and 2 legislative authorities were established in the West Bank and the Gaza Strip.
[4] The Palestinian Cabinet of the dissolved government in Gaza issued Regulation No. (412)in 2011 concerning the non-profit companies, and it proposes worse procedures than those proposed by the Ramallah-government’s decrees, titled: ‘Impact of Palestinian Division on the Role of Associations and Their Legal Organization”
[5] United Nations, OHCHR, the Special Rapporteur on the rights to freedom of peaceful assembly and of association; https://www.ohchr.org/ar/issues/assemblyassociation/pages/srfreedomassemblyassociationindex.aspx
[6] The Special Rapporteur is an independent expert appointed by the Human Rights Council to examine and report back on a specific human rights theme or country situation. This position is honorary and the expert is not a United Nations staff member, nor paid for his/her work. OHCHR official definition, more on OHCHR.ORG
[7] United Nations, OHCHR, the Special Rapporteur on the rights to freedom of peaceful assembly and of association; https://www.ohchr.org/ar/issues/assemblyassociation/pages/srfreedomassemblyassociationindex.aspx
[8] UN, GA, 26TH Session, Report of the Special Rapporteur on the rights to freedom of peaceful assembly and of association, Maina Kiai (A/HRC/26/29)
[9] Ibid.
[10] Ibid
[11] Ibid
[12] Ibid
[13] Ibid
[14] Before the amendment of this law, there was no provision for the formation of non-profit companies in the West Bank, contrary to the Gaza Strip, the Companies Law regulate the work of non-profit companies since 1929 through Article 23.
[15] UN, Human Rights Council, 38TH Session, Report of the Special Rapporteur on the rights to freedom of peaceful assembly and of association (A/HRC/38/34)
[16] UN,GA, 70TH Session, Report of the Special Rapporteur on the rights to freedom of peaceful assembly and of association, 2015 (A/70/266)
[17] UN, GA, 26TH Session, Report of the Special Rapporteur on the rights to freedom of peaceful assembly and of association, Maina Kiai (A/HRC/26/29)
[18] Ibid.
[19] Ibid
[20] UN,GA, 70TH Session, Report of the Special Rapporteur on the rights to freedom of peaceful assembly and of association, 2015 (A/70/266)
[21] Ibid
[22] UN, GA, 26TH Session, Report of the Special Rapporteur on the rights to freedom of peaceful assembly and of association, Maina Kiai (A/HRC/26/29)
[23] UN,GA, 70TH Session, Report of the Special Rapporteur on the rights to freedom of peaceful assembly and of association, 2015 (A/70/266)
[24] UN, GA, 26TH Session, Report of the Special Rapporteur on the rights to freedom of peaceful assembly and of association, Maina Kiai (A/HRC/26/29)
