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The International Journal
of Not-for-Profit Law

Volume 4, Issue 2-3, March 2002

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

Table of Contents

Letter from the Editor

Articles

Charity Law and Alienation in Northern Ireland: The Findings of a Research Project and the Resonance Between Events in New York and Belfast
By Kerry J. O'Halloran

Freedom of Association in a Nigerian Community - Old Usages, New Rules
By Emeka Iheme

Liability of Not-for-Profit Organizations and Insurance Coverage for Related Liability
By Jerold Oshinsky and Gheiza M. Dias

El Proceso de Reforma del Heptaedro Legal del Tercer Sector
By Antonio L. Itriago Machado y Miguel Angel Itriago Machado

Reviews

American Foundations: An Investigative History
By Mark Dowie
Reviewed by Robert O. Bothwell

Case Notes

Central and Eastern Europe:
Poland

North America:
Canada

European Court of Human Rights:
Stankov and the United Macedonian Organization Ilinden v. Bulgaria (European Court of Human Rights: October 2001)

Country Reports

Asia Pacific:
China
| Japan | Vietnam

Central and Eastern Europe:
Regional | Bosnia and Herzegovina | Croatia | Poland | Slovakia | Republic of Srpska

Latin America and the Caribbean:
Regional | Brazil | Nicaragua | Venezuela

Middle East and North Africa:
Egypt

Newly Independent States:
Armenia | Moldova | Tajikistan

North America:
Canada

South Asia:
India

Western Europe:
Regional
| Austria | France

- - - - - - - - - -

Editorial Board

Country Reports: Newly Independent States

Armenia

Adoption of the New Armenian Law on Public Organizations: A Successful Lobbying Effort of the Armenian NGOs

By Tatshat Stepanyan *

On December 11, 2001, the Armenian Parliament adopted a new Law on Public Organizations.  This was the first time Armenian NGOs effectively organized and conducted a mostly successful advocacy campaign to ensure adoption of progressive legislation.  ICNL was proud to assist the Armenian drafters and the NGO community working on the law.

The draft Law on Public Organizations was prepared by the Armenian Ministry of Justice.  ICNL provided assistance to the MOJ throughout the drafting process and participated in public discussions moderated by Armenian and international NGOs.  NGOs were actively involved in the entire process of discussing the draft law, interacting with government officials and legislators at numerous round tables and conferences.  More than a dozen NGOs provided their written comments on and recommendations about the draft.  A working group of the most active NGOs prepared a protocol containing four key progressive amendments to the draft, three of which were accepted by the Parliament. 

The three proposals advanced by the NGOs that were accepted by the Parliament are the following.

Perhaps the most noteworthy change in the draft was the introduction of an article that allows the existence of public organizations without state registration and without the creation of a separate legal entity.  This provision in the law makes Armenia one of the few countries in the NIS region to explicitly guarantee the right of organizations to exist without registering as a legal entity.

The definition of public association was also broadened beyond the initial definition, which had limited public associations to those that are created for the fulfillment of spiritual and other non-material needs of the participants.  Now the article permits public organizations to be founded for the protection of the rights and interests of their members or for the public, including providing material and non-material assistance to society.  This formulation, unlike the previous one, allows public organizations to engage in activities such as providing humanitarian assistance or material assistance to the needy.
 
An article limiting public association activities for members of military and law enforcement bodies was also successfully deleted from the draft.

Regrettably, the government rejected proposals to permit public organizations to engage in economic activities to support their work.  However, government officials accepted the idea of returning to this issue in future, an encouraging sign that the government understands the importance of this matter in helping the third sector to develop and become self-sustaining.

* Tatshat Stepanyan is ICNL’s Legal Consultant and local partner in Armenia.  For further information on these developments, please contact him at tatshat@worldlearning.am.

Moldova

Contradictory Situation for NGOs In Moldova

By Ilya Trombitsky*

The recent coming to power of Communists in Moldova, the poorest country in Europe, was predictable, not only because of the previous bad internal country management during the whole post-Soviet period of independence, but also as a result of several mistakes of Western policy concerning the most pro-democratic country of the NIS.  As concerns the development of a civil society in Moldova, many western institutions, including private US foundations, which operate in Hungary, the Czech Republic, Poland, Romania, Russia, Ukraine, as well as in the Trans-Caucasian and Central Asian countries of the NIS, refused to fund activities in Moldova.  As a result, the Soros Foundation practically monopolized this field, with evident and predictable consequences of any monopoly.  An orientation toward only a part of the civil society initiatives developed, with a consequent lack of support for certain other, equally important parts of the NGO spectrum in the country.  The end result has been a weaker civil society than needed within a country without strong democratic traditions, lacking experience in the rule of law and facing the danger of renewal of civil war.  Under such circumstances, it is no wonder to see the people turning to leaders who talk to them in terms known from the past.

At this point, the renewed Communist rule, which began a year ago, has not brought about any changes in the laws regulating not-for-profit organizations.  However, with regard to the Moldavian third sector, two high-level civil servants – Mr. Victor Doras, the Presidential Adviser, and Mr. Valerian Cristea, the Deputy Prime Minister, expressed rather opposing views in their addresses to the Third NGO Forum, held in November 2001.  According to Mr. Doras, the sector’s role should be enhanced, but he finds the number of NGOs (more then 2000) still too small for the country.  On the other hand, according to Mr. Cristea, there are too many NGOs.

In Autumn 2001 the Government submitted the Law “On Non-Commercial Organizations,” as drafted by a group of NGO specialists, to the Parliament.  However, it is still waiting to be processed by one parliamentary committee, possibly because of the fact that the members of the Parliament are not used to dealing with the specific features of laws related to the third sector.  Another recently proposed Governmental Bill “On Charity and Sponsorship” seems to be nearly identical to the one which is in force under the same name since 1995.  Because the draft has been criticized in the newspapers, it may be rejected by the Parliament.

In January 2002, anti-Communist actions – a series of meetings, organized by the parliamentary opposition – started in Chisinau, the capital of Moldova.  But the number of participants did not exceed the relatively small number of supporters of the one opposition party, which had organized the meetings.  Nevertheless, it may be assumed that as a result of these meetings, President Vladimir Voronin, who himself is a Communist, realized that having the constitutional majority in the Parliament does not necessarily guarantee efficiency of legislative work by either  the Parliament or the Government.  With a weak opposition, these bodies produce laws and regulations of low quality.  Consequently, Mr. Voronin initiated a campaign for a “civil dialogue.”  From his point of view, this should become a mechanism for a series of consultations with different segments of civil society, providing public expertise for decisions on all levels of legislative and executive powers.

On March 22nd, 2002, during a meeting with NGOs, President Voronin noted that the main intellectual potential of the society is concentrated in NGOs, as well as in science and business.  According to him, the obligation of the State is to create a good legal and psychological environment for activities of these sectors.  In order to achieve this, the positive experience of other CEE countries should be used in Moldova.  Therefore, the President proposes to support the activity of public benefit NGOs, and especially that of rural NGOs.  The latter are not yet very numerous, but they are important in the under-developed agricultural areas, where more than a half of the country’s population lives.

With regard to the central government, ministries and local authorities, Mr. Voronin expects them to invite NGOs into a dialogue and cooperation, which should become a continuous interchange.  It should be noted, that current legislation permits financing of public benefit projects of NGOs from central and local budgets.  However, this is used only occasionally.  If the initiative of Mr. Voronin is followed, the NGOs may have a good chance to enter into open competition for Governmental tenders, and by winning them, to conduct many activities more effectively than would do the Governmental bodies.  Of course, the transparency of the tendering process is the principal condition for the success of such a development.

Mr. Voronin also noted the importance of certifying NGOs for public benefit status.  In this connection, he appreciated the work of the Charity Commission, which was created five years ago.  He noted that it works efficiently, is not corrupt, and has succeeded in certifying more than 200 NGOs.  According to his opinion, any new composition of the Charity Commission must be based on a choice of persons with high morals and clear competence.

Mr. Voronin also stated that he plans to initiate legislative steps to amend the Law on Local Public Administration (1998), the Law on Parliamentary Rules (1995), the Law on Elaboration of Legal Acts (2002), and other legal acts so as to introduce procedures of public participation in decision-making.  These new laws will enable public access to draft laws, including their placement on the Internet.

At the same time, Mr. Voronin criticized some foundations operating in Moldova, who instead of supporting the activities of grass-roots NGOs use their resources to establish branches, to buy real estate and to pay high salaries to their own numerous staff.  According to him, such policies discredit the third sector.  Mr. Voronin also noted the slow development of local philanthropy and proposed to use foreign experience for stimulating philanthropic endeavors.  The attention in fundraising should be given not only to business companies, but also to the people with average income.  They can make a difference even with relatively small donations.  The Hungarian experience of the “One Percent Law” seems to be a good tool for this objective in Moldova.

Finally, Mr. Voronin stated, that he plans to appoint a person who will be responsible for maintaining contacts with NGOs, as well as to establish consultative councils on the most important problems of the society under Presidential office.  He expects similar appointments to be made at the level of the Government ministries and by local authorities.  The current laws permit such an approach, but it has not been implemented so far.

The first practical action to be taken by the President in this direction was his decision to return to the Parliament the Law on Biological Safety.  He asked for inclusion of one experienced representative of an environmental NGO in the Governmental Commission, which should decide on granting permission to use genetically modified organisms (GMOs) in the country.  He also insisted on mechanisms making the activities of this Commission more transparent for the general public.

The second proposal was for the Parliament majority faction to postpone the plenary discussion of the draft “On Philanthropy and Sponsorship,” drafted by government, and to organize a public discussion prior to the parliamentary debate.  This happened because this law is considered by the NGOs not to be necessary at all.  In fact, some NGOs consider it to be dangerous, because if it is passed, it will introduce a new term “philanthropic organization” in parallel with already existing “public benefit organization” without any evident reason for doing so. 

The most recent opportunity to show a greater awareness of heeding public opinion was the organization by Parliament of its first public hearings on the acute issue of the State water policy.  Several NGOs have had the possibility of explaining their points of view, including very critical ones.

It is not quite clear whether this is only a short-term campaign of the ruling Communist party and its leader to demonstrate openness to the general public.  Alternatively, these developments could be the result of a seriously adopted decision, which would mean that the current power in Moldova is not monolithic, and that the Government is turning to a rather social democratic mode of rule.  However it turns out – time will tell -- it is evident that the third sector should make use of the offer for cooperation with the aim to improve the legal environment, as well as the implementation practices of the state authorities, with respect to the activities of NGOs.

* Ilya Trombitsky is a Board Member of the BIOTICA Ecological Society in Moldova; he can be reached at ilya.trombitsky@biotica-moldova.org; www.biotica-moldova.org

Tajikistan

Reduction of Registration Fees Leads to a Dramatic Increase in the Number of Registered NGOs in Tajikistan

By ICNL staff *

Following the issuance of the Government Resolution No. 132 from March 31, 2001 “On the Order of Collection and Amount of Registration Fees for the Registration of Public Associations and Political Parties in the Republic of Tajikistan,” registration fees for public associations have been significantly reduced.  As a result, the number of registered NGOs in Tajikistan has dramatically increased.

The high fees for NGO registration have been a significant impediment to the growth of NGOs in the country.  Until March 2001, registration fees for local public associations were US $165 and the fees for republican public associations were $240, payable in somoni at the official exchange rates established by the National Bank on the date of payment.  Registration fees for international public associations were even higher – $750.  These fees were significantly higher than those for the registration of commercial entities in Tajikistan.  It should also be noted that the minimum monthly salary for Tajik citizens at that time was about $1 and the average monthly salary was about $5-10.

ICNL is proud to have assisted Tajik NGOs with their successful advocacy campaign to reduce registration fees.  Since 1998, ICNL has repeatedly raised this issue at roundtables and seminars and in numerous meetings with government officials and parliamentarians.  The adoption of Resolution No. 132 has significantly lowered the registration fees dropping them to 20 minimum salaries (about US $25) for local public associations, 50 minimum salaries (about US $60) for republican public associations, and 500 minimum salaries (about $600) for international public associations. 

The significant reductions in fees have provided an immediate impact on the growth of NGOs in Tajikistan.  According to the data provided by the Tajik Ministry of Justice, the number of registered NGOs in Tajikistan increased dramatically in 2001 following the reduction of registration fees. The substantial increase in the number of NGOs in Tajikistan is illustrated in the following chart.   Additional information is also provided in Appendix A.

Oblast

# of NGOs registered in 2001

% increase over prior totals

Total number of registered NGOs

Dushanbe and districts of Republican subordination

179

25.8%

873

Sogdian Oblast

67

57.8%,

183

Khatlon Oblast

58

77.3%. 

133

Gorno-Badakhshan Autonomous Oblast

16

44.4%

52

Tajikistan Total

320

34.7%

1,241

It should be noted that this is not the first time ICNL’s efforts in the country resulted in an improved registration climate for NGOs.  A prior dramatic increase in the number of registered NGOs occurred after 1998, following the adoption of the Law on Public Associations.  ICNL continues to work hard to improve the legal climate for NGOs in the country and is a member of several drafting groups working on new legislation in Tajikistan.

* For further information on these issues, please contact Natalia Bourjaily, Vice President and Director of ICNL’s NIS programs at nbourj@icnl.org.

Appendix A

These charts were compiled on the basis of information provided by the Ministry of Justice of the Republic of Tajikistan.

Table 1.

Total Number of NGOs Registered in Tajikistan by Year.

Table 2.

Table 3.

Table 4.

Table 5.

Table 6.

 

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ISSN: 1556-5157