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The International Journal
of Not-for-Profit Law

Volume 12, Issue 1, November 2009

A publication of the International Center for Not-for-Profit Law

Table of Contents

Letter from the Editor

NGOs in the Political Realm

Special Section

Political Activities of NGOs: International Law and Best Practices
International Center for Not-for-Profit Law

NGOs: An Antibiotic Against Bureaucracy, Democracy's Degenerative Illness
Eduardo Szazi

Articles

Citizen Participation in Mexico Through Advisory Councils
Consuelo Castro

State Supervision of NGOs in Peru
Maria Beatriz Parodi Luna

Endowment Funds: New Develpments in the World of Philanthropy in France
Philippe-Henri Dutheil

Legal Framework for External Supervision of NGOs in Current Czech Law
Katerina Ronovska

British Charities and Insolvency
Pesh Framjee

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Editorial Board

State Supervision of NGOs in Perú

María Beatriz Parodi Luna1

1. GENERAL CONTEXT

At the moment in different countries of Latin America, we again encounter challenges derived from the State’s questioning the performance of Civil Society Organizations (CSOs), especially those that receive International Technical Cooperation, denominated Non-Governmental Organizations (NGOs), because of the use and management of such resources toward projects of “public or social interest.”

Perú is not apart from this general context, therefore, modifications were made in existing legal norms on December 2006, specifically in the Agencia Peruana de Cooperación Internacional (Peruvian Agency for International Cooperation—APCI), destined to establish mechanisms of supervision and control in relation to the activities of such organizations. Such legal reforms generated public debate about political and judicial reaches, which translated into an action presented before the Peruvian Constitutional Tribunal by an important number of citizens (more than 8,000), and headed by NGOs. Its ruling was issued in August 2007.

Furthermore, recently, the debate has been brought back to life, with attempts at approving legal norms (new modifications to the norms of APCI) that contradict or in a different way violate the juridical analysis and pronouncements of the Constitutional Tribunal of Perú. The said reforms are given under the justification that the activities of NGOs “are linked to development and national security” and/or have to do with activities of “national interest” referring to such topics as education, health, defense, national security, internal order, and human rights; and therefore they require the presence of the State/Government.

So, in general terms, this topic poses central questions: What should be the role of the State in respect to CSOs, specifically in the case of NGOs? How can we achieve an “adequate” balance between transparency of CSOs and the supervision of the State?

2. GENERAL LEGAL FRAMEWORK IN PERÚ

2.1. Legal status of NGOs in Perú

In Perú, as in many countries of Latin America, NGOs are not a special type of legal entity. They are formally constituted under the legal forms of association and foundation (regulated by the Civil Code), of which the more common in Perú is the association because of the flexibility of its regulation.2

The name “NGO” in Peruvian legislation refers to an “administrative qualification” derived from the Register denominated “Registro de Organizaciones No Gubernamentales de Desarrollo Receptoras de Cooperación Técnica Internacional (ONGD-PERU),” constituted in Perú. At the moment this registry is under the management of APCI, which is the State's entity of International Technical Cooperation appointed within the Ministry of Foreign Relations.

The Ley de Cooperación Técnica Internacional: Act of International Technical Cooperation (Legislative Decree N° 719) of Perú establishes that these organizations are characterized by their purpose of non-profit and for carrying out development activities that involve international technical cooperation in one or more of the modes indicated by that Law. This means that not all types of non-profit legal entities (associations or foundations) constituted in Perú can be listed in the Administrative Register—only those that:

  1. carry out development programs or projects and
  2. channel international technical cooperation.

An organization’s listing in the administrative Register is valid during a two-year period and is renewable. It requires an annual presentation of the pertinent report related to the activities carried out, indicating the projects or activities to which resources of each cooperating source were destined. Application also requires the information related to the next two years, when the renewal will be applied for (further information: www.apci.gob.pe).

2.2. General context of the relation State-NGO in the last years
The Peruvian Civil Code regulates civil associations in a very flexible and perhaps terse way (there are only 19 articles). At the same time, when actions involve International Technical Cooperation, a specific regulation exists linked to an administrative register kept by APCI.

In the case of NGOs there is not, in general, a specific regulation in relation to the type of economical, political, or lobbying activities that these types of entities may carry out; or an obligation to render balances or other types of financial documents. Therefore, the range of activities that NGOs can carry out is quite wide, if the following general legal limits are respected: (i) the non-profit purpose that characterizes these associations is not violated; (ii) the activities are those that are in or derived from the purpose; (iii) no attempts against public order, moral customs or imperative norms are made. Also no specific regulations exist in relation to the composition of directive organs of these organizations or conflicts of interest.

On the other hand, during the last years in Perú there have been several attempts to supervise or control the activity and, more specifically, the use of NGO resources, in some cases with proposals to establish even limits to the remunerations of the directors, considering, in our judgment wrongly, that these violated the non-profit purpose that characterized these types of organizations. In our consideration there is no legal prohibition against an associate or director of an association, who carries out and effective work or services on behalf of the association, receiving payment, in accordance with the prices of the market. During the 1990s, corresponding with Fujimori´s government, although he maintained hostile relations against NGOs, especially in the field of human rights and defense of democracy, this did not translate into an establishment of legal norms destined to their control; rather, the same legal system continued at the level of the Civil Code and especially the International Technical Cooperation legislation. On the other hand, legal norms that promoted their performance were not granted—specifically, more tax incentives.

Within this legal context and general situation, it is important to take note of the promotional and innovating role of NGOs: especially to cover the spaces where the State has not wanted or has not been able to enter. In this way, we can attribute to CSOs and NGOs the following contributions: (i) provision of “public” services or of social aid in areas like urban or rural development (and especially contributing to the generation of their own resources via sustained economical activities), microfinance, education, and health; (ii) innovation; (iii) advocacy or public attention to problems and promotion of change, in such areas as transparent elections, human rights, and gender equality; (iv) creation of leaders; and (v) strengthening of democracy and the civil society.3

In spite of such strengths, an important limitation or weakness within the legal framework in Perú relates to the “render of accounts” (accountability) of CSOs in general. Although the most important NGOs, in terms of public recognition or institutional trajectory, have developed mechanisms of transparency (they secure registration in APCI’s NGOs Register and, because of this, they periodically present their plans and projects to the said entity; they keep accounting and balances up to date; they have developed public information mechanisms, such as through Web pages), “the majority of these entities have not developed trustable or durable render of accounts mechanisms, the problem seems to be associated to the characteristics of the Peruvian Society in general.”4

In effect, many NGOs act according to specific projects, heeding the rules of the exterior cooperating sources, and, therefore, have not developed general institutional character guidelines. Equally, the mechanisms of control are wielded by the directors and/or associates. Therefore, there exists no precise and generalized recognition of the importance to create mechanisms of supervision and render of accounts that will contribute to their institutional strengthening, beyond the mechanisms of render of accounts, presentation of reports, or similar requirements imposed by agreements of their cooperating sources for particular projects.

3. CONTENTS AND INTENTIONS OF THE LEGAL REFORMS CARRIED OUT IN PERÚ

The weakness or issue regarding the render of accounts in Perú has been used by the State to justify the legal modifications for controlling their activities. So has the general principle contained in the Political Constitution of Perú that the “State directs the development of the country.”

It is important to point out that such legal modifications have been given specifically in relation to the management of Non-Reimbursable International Cooperation (donations or grants), which indicates the State’s interest in controlling these resources in order to “defend the public interest and the promotion of national development.”

In December 2006, Law 28925 was enacted, which is not a modification of the general Ley General de Cooperación Técnica Internacional (General International Technical Cooperation Act), Legislative Decree Number 719, but rather a modification of the Agencia Peruana de Cooperación Internacional (Peruvian Agency for International Cooperation) APCI Law number 27692. The new law sought to strengthen the functions of the entity and the mandatory character of the administrative registers in its charge.

The legal modification was the object of a series of criticisms, especially regarding the violation of the fundamental rights of freedom of association, contracting, and privacy. In spite of a series of adjustments, the fundamentals of the Law were maintained and, inclusively, the Bylaws of Infractions and Sanctions were enacted.

Which were the main modifications of Law Number 28925 that amount to an unconstitutional demand?

3.1. First, the said Law reinforces APCI’s object, as overseer of international cooperation, not only establishing the conduct, programming, organizing, and supervising of the management of Non-Reimbursable International Cooperation (donations or grants), but establishing as a function to “give priority” to technical cooperation, “according to the function of national development.” This is one of the central aspects that was questioned, because it clearly intervenes in private legal relations – as far as the State does not participate or there is no transference of state resources – in the agreements between the cooperative sources and NGOs, as executors, and where are established, based on the autonomy of free will, the field of action of the projects, promises of the parties, render of account mechanisms, and other aspects of a private contractual regulation.

3.2. In principle, the norm is applied to all entities (it does not say only NGOs) that manage international cooperation with the participation of organisms of the State, but later on, it includes those entities that make use of some privilege or tax benefit, that use “in some way” state resources, or that operate in a cooperative entity that includes the State.

3.3. The norm “for the purpose of transparency” also requires other entities that manage international cooperation to register in a special Register created by APCI, of a public and informative character, where each project, program, or activity should be identified.

In defense of this point, APCI has indicated that the Register requirements (published on the web: www.apci.gob.pe) are very general, and therefore no reason exists to justify the opposition of NGOs to make their projects public, given the virtues of transparency. But if the requirements are very general today, nothing prevents more far-reaching requirements from being implemented in the future, opening the door to an unjustified State intervention in an essentially private activity. The necessary transparency—that nobody denies—cannot have, by essence, a compulsive origin.

3.4. It is established, for entities included in the Law, the mandatory inscription in the NGO Non-Governmental Development Organizations Register (“Registro de Organizaciones No Gubernamentales de Desarrollo Nacionales receptoras de Cooperación Técnica Internacional”) for entities constituted in Perú. In the case of entities constituted abroad, the Registry of Foreign Entities and Institutions of International Technical Cooperation (“ Registro Nacional de Entidades e Instituciones Extranjeras de Cooperación Internacional- ENIEX”) is applicable. For executing international technical cooperation, the inscription in these Registers is an obligation, independently of the juridical nature of the cooperating source as it is expressed in the modification, which was later interpreted in an important way by the Constitutional Tribunal. Not to be registered or renewed in the Registers has been deemed an infraction subject to an administrative admonition, a fine, temporary suspension of the benefits granted by the Register (referring fundamentally to income tax and sales or purchase tax in the acquisition of goods or services), and cancelation of listing in the Register.

3.5. The law effectively intimidates the persons linked to the administration of an NGO, including consultants, because it establishes that “the director, administrator, consultant, legal representative or agent of the entity to which the inscription in the said registers has been canceled, cannot participate directly nor indirectly in another entity executor of international technical cooperation during a term of five years.”

3.6. Finally, as a relevant aspect of this legal norm, special attention should be paid to one punishable infraction: the “orientation of the resources of International Technical Cooperation towards activities that affect public order or public or private property.” As we know, what affects public order or public or private property may easily be interpreted or adapted in accordance with the interests of a given Administration.

It is also included as a punishable infraction to “make wrongful use of the resources and donations of international technical cooperation or apply these for different purposes to those for which they were granted.” This infraction is invasive of private relations (private agreements).

4. THE UNCONSTITUTIONAL ACTION

4.1 Antecedents
In response to the enactment of Law Number 28925, a group of important citizens (more than 8,000), headed by representatives of NGOs, in 2007 lodged an action challenging the legal norm’s constitutionality before the Constitutional Tribunal of Perú. The court in August 2007 declared the demand partially founded. But most important are the interpretations granted by the Constitutional Tribunal in relation to the role of the State and to the concept of transparency for these entities.

The objective of the unconstitutionality action was not to question the necessity of transparency, including the inscription in the NGOs Register in charge of APCI, which has existed for many years, or the presentation of reports. In fact, many NGOs are registered with APCI, and they present their project reports, cooperating sources, and other information required by APCI. What was fundamentally questioned was the mandatory nature of such a register imposed by the State with implied sanctions, when an objective cause does not exist, just as before when it was interpreted that such a register was mandatory when the cooperation was channeled through the State. At the same level, it is questioned as an unjustified “public function” APCI’s faculty of establishing what a “priority” is and the consequent establishment of punishable infractions of certain conduct arising in the private relations between cooperating sources and the NGO.

It is important to note that the constitutional challenge alleged that the legal norm violated several principles and/or constitutional rights, also sustained in international treaties signed by Perú, which in brief are: (i) constitutional principle of equal rights, which demands “equal treatment to equals, but unequal to those unequal,” in accordance to Article 2, subsection 2 of the Political Constitution of Perú; (ii) right to a private life or “privacy” of NGOs that receive International Technical Cooperation (ITC) and do not receive any type of State or tax benefit or exemptions, when obligated to register their programs, projects, and activities along with the execution of their expenses in a public registry with APCI; (iii) right to freedom of contracting, because the mentioned Law authorizes the Public Administration to “give priority” to the destination of ITC private funds, ignoring the aims and specific projects to which the donor, in the use of his right of contracting and autonomy of will, has decided to destine his resources, as expressed in a contractual agreement that could inclusively be ruled by a foreign legislation; (iv) freedom of association, and as a consequence of this, also the right of participation in the political, economical, social, and cultural life of the nation, when the entities of ITC are required to register in diverse administrative registers, as a condition of executing their projects, programs, and activities.

4.2. The Ruling—Lessons to Point Out.
On August 29, 2007, the Constitutional Tribunal of Perú pronounced its ruling (www.tc.gob.pe) on the demand of unconstitutionality above indicated. Far more than just declaring partially founded the lawsuit on two specific points, it is an interpretative ruling of value and importance. This is the case not only from the legal point of view, but also in terms of social-political analysis with regard to CSOs (specifically in this case NGOs) and their relation with the state, as well as the “public role” that these entities fulfill.

The court indicated, with regard to the administrative register kept by APCI, that “(…) it should follow the constitutional directive that permits the restructure of the balance between what is public and what is private, between freedom and authority, between private initiative and imposed power of the State, according to an adequate flexibility that accentuates the democratic conception of the state ordinance” (Fundament 38).

In this respect, the ruling of the Constitutional Tribunal excludes from the Peruvian Legal System as unconstitutional two specific aspects of the questioned Law, namely:

  1. The part imposing a requirement to report the execution of expenses that are made with the international private cooperating sources.
  2. The administrative punishment that, for an entity canceled in APCI´s administrative registers, prohibits certain individuals (director, manager, consultant, legal representative, or agent) from participating directly or indirectly in another entity of international cooperation, for the period of five years.

Without detriment of the above, what results most importantly from the ruling of the Constitutional Tribunal is the analysis of different topics, ranging from the relations between the model of social rights and the democratic State with Civil Society, up to the constitutional analysis of the administrative punishments linked to APCI´s registers.

4.3. Principal Topics of the Ruling of the Constitutional Tribunal
4.3.1. International Technical Framework and the Role of NGOs

In the first place, the court recognized the importance and development of all the civil society organizations, of which NGOs form part, as a special space, different from the State as well as from the market, whose potential is to be able to cooperate with the State supplying “social services” in areas where the State (public sector) or the enterprises (market sector) do not participate or are not involved, configuring in this way a “third sector,” but, at the same time, “a private social sector.”

Within this universe of CSOs, the ruling denominates NGOs as “those non-governmental organizations that have for an objective to serve public interests mentioned by the render of specific services” (Fundament 5).

NGOs also form part of the International Technical Cooperation System. In this respect, in accordance with the definition in the Peruvian Ley de Cooperación Tehnica Internacional (International Technical Cooperation Law) Decree Number 719, the Cooperation for Development or Official Help for Development or International Technical Cooperation (ITC) is understood as “the means by which Perú receives, transfers and/or exchange human resources, goods, services, capital and technology from cooperating external sources whose objective is to complement and contribute to the national efforts in matters of development (…).”

On the other hand, the Political Constitution of Perú recognizes subjective rights and objective interests that States should respect and guarantee to all people under their jurisdiction, in a framework of promoting “general welfare which is founded in justice and in the integral development and balance of the Nation” (Article 44). Thus, in this framework, NGOs contribute in the implementation of such purposes of the system and also in the full existence of the Social and Democratic State of Right.

As can be appreciated, although the private character of NGOs (which are legally civil associations or foundations) is recognized, these organizations play an important role within the system of International Technical Cooperation or Cooperation for Development, having, therefore, social solidarity or public interest purposes, which makes them different from entities that are purely private or commercial (in the case of enterprises).

4.3.2. Obligation to be registered in the registers of the Peruvian International Cooperation Agency (APCI).
In relation to the obligation of inscription in the administrative register of APCI, the constitutional challenge charged that the requirement violates constitutional rights of equality before the Law, private life, and freedom of association.

In this particular, the Sentence of the Constitutional Tribunal makes a valuable analysis and balance of this topic, arriving at very important conclusions, which are the following:

  1. In first place, in accordance with reiterated jurisprudence of the Peruvian Constitutional Tribunal, “in the model of the State submitted to the normative and valuation force of the Constitution it does not fit to admit zones exempted from control, that in this case it is in charge of the public administration; without detriment, that in a supposed case of extreme exercise of such competence the said entities may appeal to the corresponding jurisdictional procedures – and subsidiary to the constitutional jurisdiction – so as to adopt objective and reasonable criteria” (Fundament 22).
          
    This definition is very important in the present case, in which NGOs fulfill a social role that in a certain way complements or contributes with the State in “rendering social services.”

    In attention to this, it is concluded that a “proportional” supervision by the Public Administration, in this case APCI, “will ‘abound’ in strengthening the NGOs that act seriously in the sphere of the development, emergency help or environmental protection or that respect the interest segment of the poor or vulnerable population” (Fundament 22).

    The definition and application of the criteria of “proportionality” of the public administration (APCI, in this case) remain to be determined in relation to the sphere of supervision and inspection of NGOs that are inscribed in the registers, though the Constitutional Tribunal has explained and clarified the “mandatory” character of these administrative registers in charge of APCI.

    But on the other hand, what is more important in the future, as something pending by the NGOs, is the establishment of guidelines of action that will permit a transparent performance, not only in front of the State, but in front of all the actors involved (cooperating sources, “beneficiaries,” society as a whole). These could be codes of conduct through networks or second-level NGOs, to which NGOs will adhere voluntarily.
  2. Another very important topic mentioned by the Constitutional Tribunal is the “mandatory” character of APCI's registers.

    In relation with this point, the Constitutional Tribunal established that the registers are not “mandatory” for all NGOs (be they national—ONGD Register—or foreign entities that open a branch office in Perú—ENIEX Register); so, in virtue of their free will (this is, clearly the private character of this kind of organization), those that choose to do so, will register.

    Fundament 95 of the Ruling expresses the following:

    “First, because the inscription in APCI´s registers does not constitute a mandatory condition for the execution of ITC. As it emerges from the interpretation done by this Tribunal, the said obligation only corresponds to those that receive the patrimonial benefits, from the ratione personae of the refuted norm.

    “In consequence, the entities not registered in the sphere of their performance are not affected, but they are subject to the corresponding civil regime. With this interpretation the mandate of article 2 subsection 13 of the Constitution is saved, regarding the exercise of the right of association is not conditioned on obtaining a previous authorization; resulting that it is only necessary to obtain previous recognition as a legal entity to pursue the legal aims that motivated the association.”


    That means that if an NGO does not want to access the regime of patrimonial or tax benefits that come with inscription in APCI´s Register—not tax benefits in general but those that stem from the ITC (like the mechanism of return of IVA-sales tax in the purchase of goods and services in the country with resources of the ITC; or the regime of privileges for official visas for representatives of ENIEX, for foreign entities)—they are not obligated to register; unless the ITC is “official” (of the State) or should be channeled through the State (as is the case of the ITC of certain bilateral or multilateral organisms), in which case it should register.
  3. In regard to the constitutional right of privacy, we would like to mention the “constitutional principle of publicity” and the “constitutional principle of transparency.”

    Traditionally it was argued, including in this lawsuit, that the principles of publicity and transparency only referred to the Public Administrative Entities (governmental institutions or organizations), not in general to private entities.

    Nevertheless the Constitutional Tribunal considered that although these principles should be applied, in the first place, to government officials “(…) it cannot nor should not be ignored its reach and normative significance in the ambit of the civil society” (Fundament 50); consequently, it applies to private organizations linked to topics of public interest. Therefore, the collectivity and the society as a whole have a stake in the adequate management of the activities of these types of entities.

    However, the Constitutional Tribunal interpreted that the principle should be balanced, considering that: (i) the guarantee of the transparency principle cannot be presented only as punishment, but as means of preventive social control, and (ii) these principles should be interpreted in the case of private entities with the presumption that their affairs have a private nature, inasmuch as nobody is obligated to do what the Law does not order or avoid doing what the law does not prohibit (Article 2, subsection 24 of the Constitution), valuing in each circumstance the committed public interest.

4.3.3. Execution of the expense and nature of the resources of the ITC.

  1. A very important topic discussed is the nature of the resources of the ITC, the purpose and the supervision of the Public Administration in relation to the use of such resources, and the disposition about “prioritizing” non-reimbursable International Cooperation and informing about the execution of the expense.          
  2. On this matter, the sentence of the Constitutional Tribunal makes clear that the “prioritizing” of ITC resources should be established only when the resources are from the ITC negotiated by the State. When the resources were negotiated from the private sector (as are the cooperation agreements or donations from the cooperating sources, which are private agreements), this faculty of the Administration will have only an indicative character (Fundament 84).
  3. In relation to the specific topic related to informing about the execution of the expenses, the Tribunal declared unconstitutional this part of the norm, indicating that “each one of the NGOs included in the ambit of the norm (and with greater reason those that are not) are the ones in charge to verify the adequate execution of their resources for the best obtainment of their social and welfare aims, according to the prioritizing that can be established; in consonance with the contractual terms of the private agreements of the donations celebrated with their cooperating sources” (Fundament 64).              
  4. That is to say, the private character of NGOs’ agreements with their cooperating sources for the execution of projects was rescued. In fact, they contain several clauses with obligations of the executing entity on the application of the resources, special bank accounts, and render of accounts, in order to guarantee by contract the application of such resources to the goals indicated in the agreement.

    The State does not have a situation of disposition in relation to such resources (they do not intervene or manage through State administrations), but the Constitutional Tribunal recognizes a “duty of guarantee and protection” by a means of rules oriented to its control, supervision, inspection, transparency, and publicity.         

    Therefore, in the assumptions that the Law requires to raise this “natural reserve” or privacy of the information (private legal relations) of the NGOs, this can be accomplished for the fulfillment of some public function; for example, it is especially established in the legislation in the cases of investigation of a crime (criminal law) or the lifting of tax reserve in the cases specially established.

5. FINAL REMARKS

In conclusion, we can affirm that the most important legal topic that Civil Society Organizations have confronted, specifically the NGOs in Perú, is the one derived from the supervision and control by the State in relation to the resources coming from non-reimbursable International Technical Cooperation (ITC) that are channeled and/or carry out through such entities, whether nationals or foreigners.

In this sense, an important pronouncement of the Constitutional Tribunal of Perú exists (Ruling of the year 2007 because of an action of unconstitutionality), which, even though it didn’t annul all of the articles questioned of the law modifying the law of creation and functions of the APCI, definitely constitutes a valuable tool of analysis and interpretation in relation to the role of the State in the supervision of these entities, which we consider a valuable precedent inclusively for the region of Latin America. Therefore, this important pronouncement should be taken into consideration in each specific case of supervision and control of the State, in relation to NGOs that channel and/or carry out International Technical Cooperation, as well as in relation to new attempts in the case of Perú or tendencies in our region of new laws or modification of the existing norms designed to supervise the resources of International Technical Cooperation and, finally, the functioning of these types of entities, considering that fundamental rights such as freedom of association, privacy, freedom of contracting are involved.

On the other hand, a flexible and open framework, as in the case of Perú, at the level of the regulation of civil associations (the legal type more used in the ambit of CSOs and, in particular, NGOs), usually is suitable in order to promote or, in another way, not to limit the performance of these type of organizations. However this benefit can, in an adverse political context, turn into its own threat, especially if the topic related to render of accounts is not generalized and interiorized at the level of CSOs (accountability) and/or it is perceived as such.

So this takes us to the initial question of: How to obtain an “adequate” balance between transparency of the CSOs and supervision of the State? This answer, more than legal, is linked to the definition of the role of the State in respect to Civil Society Organizations as a whole, which translates into an answer of political content, the legal framework as instrument or means of expression of said policy. In this sense, in the case of Perú, the ruling of the Constitutional Tribunal, dated August 29, 2007, constitutes a valuable tool of analysis, not only legal, but also social-political towards the search for the proper “balance between public and private,” “between freedom and authority,” within the democratic concept of a Social and Democratic State.

Thus, concerning the legal framework, beyond the interests of a certain government, it is necessary to establish clearly the “habilitating causes” and motives that justify – in an objective way without violating fundamental rights – the supervision by the State of NGOs and CSOs activities in general.

But, on the other hand, CSOs as a whole should establish self-regulation mechanisms that contribute to a wider transparency and visibility in their performance; which will definitely contribute to strengthen their continuity and institutionality.

Notes

1 María Beatriz Parodi Luna is an Attorney; a Partner of BP& MN, Legal Consultants; and a member of the Advisory Council of ICNL.

2 In the case of Perú, foundations are regulated in the Civil Code, but the State limits their flexibility and control through the Consejo de Supervigilancia de Fundaciones (Supervision Council of Foundations), which inclusively adopts certain decisions linked with the approval of balances and budgets as well as acts of disposition of property that do not constitute ordinary operations of the Foundation. Also founders (“promoters”) do not participate in the foundation unless they act as administrators.

3 Criteria taken from the book “Más allá del individualismo: el tercer sector en el Perú” Autores: Portocarrero, Felipe; Cynthia Sanborn; Hanny Cueva y Armando Millán.

4 Ibid, page 261.

Bibliography

Belaunde, Javier and Parodi, Beatriz: “Legislación vigente para el sector privado y sin fines de lucro en el Perú,” en Oliveira, Anna Cynthia (compiladora), en: “Marco regulador de las organizaciones de la sociedad civil en Sudamérica,” International Center for Not-for-Profit Law, Esquel Group Foundation, BID y PNUD, 1997.

Belaunde, Javier and Parodi, Beatriz: “Marco legal del sector privado sin fines de lucro en el Perù,” en “Apuntes 43,” segundo semestre 1998, Lima: CIUP, 1998.

Méndez, José Luis (Coordinator), “Organizaciones civiles y Políticas Públicas en México y CentroAmérica,” México: ISTR-Academia Mexicana de Investigación de Políticas Públicas A.C., 1998.

Portocarrero, Felipe; Cynthia Sanborn; Hanny Cueva and Armando Millán, “Más allá del individualismo: el tercer sector en el Perú,” Lima: CIUP, The Johns Hopkins University, 2002


 

 
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