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The International Journal
of Not-for-Profit Law

Volume 7, Issue 2, February 2005

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

Table of Contents

Letter from the Editor

Latin America

The Promise and Peril of Democracy (Full Text of Speech)
Jimmy Carter

The Promise and Peril of Democracy (Summary)
Joseph Proietti

Threat Resurges for Venezuelan NGOs [Spanish Translation]
Antonio L. Itriago and Miguel Ángel Itriago

Transparency Versus Government Supervision in Peru [Spanish Translation]
Beatriz Parodi Luna

Federal Law for the Promotion of Civil Society Organizations in Mexico
Consuelo Castro

Active Without Recognition: Obstacles to Development of the Colombian Third Sector
Adriana Ruiz-Restrepo

The Role of the Media in the Consolidation of Democracy in Latin America
The Latin American Program of the Woodrow Wilson Center for International Scholars

Articles

Philanthropy and Law in South Asia: Key Themes and Key Choices
Mark Sidel and Iftekhar Zaman

The Role of a National Donor Association: A U.S. Perspective
Robert Buchanan

California’s Nonprofit Integrity Act of 2004
Thomas Silk and Rosemary Fei

Progress on Civil Society Legislation in Turkey
Filiz Bikmen

Taxation of Grants in Russia
Yulia Checkmaryova

Reviews

Civil Society
By Michael Edwards
Reviewed by Stephan Klingelhofer

The Law of Charities
By Peter Luxton
Reviewed by Richard Fries

Does Civil Society Matter?: Governance in Contemporary India
Edited by Rajesh Tandon & Ranjita Mohanty
Reviewed by Bindu Sharma

Governing Nonprofit Organizations: Federal and State Law and Regulation
By Marion R. Fremont-Smith
Reviewed by Michael Bisesi

Balkan Identities: Nation and Memory
Edited by Maria Todorova
Reviewed by Gerald M. Easter

Something to Believe In: Politics, Professionalism and Cause Lawyering
By Stuart A. Scheingold and Austin Sarat
Reviewed by Patricia Lyons

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Progress on Civil Society Legislation in Turkey

By Filiz Bikmen*  

With the adoption in recent months of a new Law on Associations and the publication of a new draft law on foundations, Turkey is undergoing significant changes in the area of civil society legislation. 

New Law on Associations  

The Turkish Parliament has adopted the most progressive Law on Associations in over 20 years. This marks an important milestone for the strengthening of the legal framework for NGOs and the general advancement of civil society in Turkey. The new law significantly reduces government control over association activities while raising internal auditing standards. It also enables government funding for up to 50 percent of joint projects with associations. 

The Third Sector Foundation of Turkey (TUSEV) partnered with the International Center for Not-for-Profit Law (ICNL) to provide inputs for the preparation process of this law. The cornerstone of this assistance was a “Comparative Report on Associations Law” (see appendix), which provided inputs on the intellectual framework for reform.  

Almost all the provisions in the comparative report were accepted and integrated into the final draft, which was approved by review commissions and Parliament. The law was adopted in its final form by Parliament in late October 2004, and will be followed by the publication of the regulation, which is critically important for ensuring effective and even-handed implementation of the new law.  

Some of the major revisions include the following: 

 

Although these revisions indicate significant progress, concerns remain about sanctions, which include steep penalties and fines. It is also important to note that there are several other relevant pieces of legislation affecting civil society, such as press, assembly, and demonstration laws, which retain their restrictive nature. Thus, while the progress with the associations law is important, it is necessary to take into consideration the wide spectrum of laws and practices that require continued reform in order to fully enable civil society in Turkey. 

The Department of Associations, formed in 2003 as a special unit of the Ministry of Interior, played a key role in promoting reforms and advocating for more enabling legislation. This Department provides the official registration and oversight function, with a central office in the capital Ankara and local offices in 81 provinces across the country.  

Draft Law on Foundations 

The draft law on foundations was published on October 28, 2004, by the General Directorate of Foundations (GDF), which is the regulatory/administrative unit responsible for oversight of foundations in Turkey. The justification for a new law on foundations is based primarily on the following mandates:

In its current form, the new draft law does address a portion of the mandates outlined above, although there is some concern regarding the harmonization of laws, given the distinctly different operational realities and needs of old and new foundations. The draft includes many positive developments for new foundations, in line with TUSEV’s comments and the “Comparative Report on Foundations Law” developed with ICNL and the Law Faculty of Bilgi University. However, one of the key concerns is the increase of decision-making powers allocated to the GDF, which may be better left to the courts and justice system. The exercise of powers of the GDF has been a major issue for “old” and “new” Turkish foundations and has also been commented on by the EU in its progress reports on Turkey in 2003: "[Foundations are] subject to the interference of the Directorate General of Foundations, which considerably limits their autonomy. This includes the possibility of dismissing their trustees, and of intervening in the management of their assets and accountancy.”

The draft law is currently being reviewed by several old and minority foundation specialists, as well as new foundations including TUSEV and its team of local and international (ICNL) experts. TUSEV’s report is the result of extensive analysis, including comparative survey of supervisory functions of governing agencies in other European countries as well as benchmarking the Model Framework for Public Benefit Foundations developed by the EFC.  

Although no official announcement has been made, It is expected that the draft will be discussed in Parliament before December 17, 2004, when the EU is expected to make a decision on a date to start accession negotiations with Turkey.  

Appendix -- Reform and Implementation: Two Sides of One Coin 

The much-anticipated report assessing Turkey’s progress on achieving the Copenhagen Criteria for EU membership was published as planned on October 6, 2004. This report is the basis upon which the Council will make a decision on starting accession negotiations with Turkey on December 17, 2004. 

The publication of this report marks the culmination of an intense year of significant reforms affecting the rule of law, the justice system, corruption, military intervention in state issues, civic and political rights (including human, cultural, and minority rights), local government, and foreign policy issues. Overall, the 2004 report concludes with the recommendation that Turkey has met a sufficient number of the political criteria required to open accession negotiations, while hinting that ongoing negotiations would likely include specific conditions to ensure strict adherence to effective implementation of reforms – especially with regard to democratization and basic rights and freedoms of Turkish citizens. As such, it is clear that these issues represent a core area by which the EU will continue to measure Turkey’s progress.

Upon comparison of the respective sections on “civic reforms”[1] in the 2003 and 2004 progress reports, there are clear indications of improvement and shifting focus from reform to implementation. Whereas the 2003 progress report had highlighted specific problem areas in which reforms were still needed, the 2004 progress report referred to specific instances in which laws had achieved reform but were not showing signs of impact in implementation. Thus it can be said that the report authors have accurately observed that Turkey has achieved measurable progress in actual reform of certain laws but less so in terms of implementation.  

Concerns about implementation regarding civic reforms, however well-founded, should be carefully balanced with an understanding of the challenges in transforming a legacy of restriction and over-regulation that characterized Turkey’s pre-EU reform era. This is not intended to imply that the lack of implementation should be overlooked; it only suggests that the assessment of what constitutes progress should be monitored and measured against a clear and objective set of targets, developed jointly with all stakeholders. 

As such, the 2004 progress report provides an indication of the challenges in the next “phase” of the civic reform process in Turkey. Implementation will require focused strategies and should be based on the fundamental principle of cooperation between citizens and government officials in order to maximize Turkish ownership and systemic internalization of reforms.

Notes

* Filiz Bikmen, filiz@tusev.org.tr, is Programme Director at the Third Sector Foundation of Turkey (TUSEV) in Istanbul. TUSEV is a Member of the European Foundation Centre. This article originally appeared in the Winter 2004-2005 issue of the Social Economy and Law (SEAL) Journal, published by the European Foundation Centre. We are grateful to SEAL for permission to reprint it.

[1] “Civic reform” is a term coined by the author intended to capture a wide range of reforms relating to basic rights and freedoms of citizens, including human rights, cultural rights, minority rights, and respective laws such as association and foundation law.

 

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ISSN: 1556-5157