The International Journal
of Not-for-Profit Law

Volume 10, Issue 1, December 2007

Marc Makary1 

Executive summary

This study analyzes the two main systems of incorporating associations – notification and registration – to determine which offers greater guarantees for the right to incorporate associations in non-democratic environments. It is based on a case study of Lebanon, which has adopted the notification system, and Jordan, which has adopted the registration system, bearing in mind that in Lebanon (especially in the post-war period through late 2005) and in Jordan, the activities of associations and civil society in general have been subject to tight controls. The analysis recognizes the conflict between each of the two registration systems as conceived in democratic environments, on one hand, and the practice of the two systems by authoritarian regimes on the other. This is a comparative review based on the law, case law and administrative practice in the two countries.

The study shows that the notification system offers greater guarantees for the right to incorporate associations due to the fact that the administration plays a passive role. The registration system, in contrast, proves to be more vulnerable to an administration’s interference and control in a non-democratic environment. Both Lebanon’s and Jordan’s systems are flawed, however, and their weaknesses undermine the freedom of association and require us to think about substantial reforms, which could be premised upon existing case law. The study also reveals a common weakness in the regulations governing the incorporation of associations: the banning of undeclared associations.

Background

Citizen participation in public life is a basic characteristic of democracy, and must be carried out not just on an individual basis, but more and more through groups such as associations. Associations represent a basic pillar of democracy in most developed countries, and thus respecting and defending the freedom of association should be an objective of all emerging democracies. It is important to recognize that civil associations in authoritarian countries such as those of the Middle East as well as in more democratic countries represent an important vehicle for ideas and debates, and constitute the real space for promoting reform.

The importance of associations in a democracy was described by Alexis de Tocqueville during his journey in the United States: “In democratic countries, the science of association is the mother of science; the progress of all the rest depends upon the progress it has made. Among the laws that rule human societies there is one which seems to be more precise and clear than all others. If men are to remain civilized or to become so, the art of associating together must grow and improve in the same ratio in which the equality of conditions is increased.”2 According to Tocqueville, citizens must act collectively and take on new initiatives collectively. Therefore, the degree of associations’ growth in general, and their freedom of action in particular, reflect the level of democratization of a country.

This philosophical perspective has helped to shape many international declarations and conventions. It was also repeated by the European Court of Human Rights in its seminal decision on freedom of association, Sidiropoulos v. Greece, which stated that: “The way in which national legislation enshrines this freedom and its practical application by the authorities reveal the state of democracy in the country concerned.”3

The legal documents binding even the most authoritarian of Arab states defend, in one way or another, the freedom of association.4 Paragraph XIV of the Universal Islamic Declaration of Human Rights, dated September 19, 1981 states, “Every person is entitled to participate individually and collectively in the religious, social, cultural and political life of his community and to establish institutions and agencies meant to enjoin what is right (ma’roof) and to prevent what is wrong (munkar).” Article 28 of the Arab Charter of Human Rights of September 15, 1994, which is close in its content to Article 11 of the European Convention of Human Rights (ECHR), provides, “All citizens have the right to freedom of peaceful assembly and association. No restrictions shall be placed on the exercise of this right unless so required by the exigencies of national security, public safety or the need to protect the rights and freedoms of others.” Furthermore, many regional conferences have been held in the Middle East, and the participants have issued a number of declarations that seek greater protection for the freedom of association.5

It is clear that these texts attempt to provide a guarantee and draw the general framework for protecting the freedom of association, leaving the task of developing detailed guarantees to national level legislation and case law. Should the states that ratified these international instruments not develop such guarantees, the right to the freedom of association and to form associations is ineffective and devoid of content.

Guarantees and protections offered by international instruments and constitutions are not the only components of a legal framework that governs associations. In fact, the legal regime for incorporating associations and recognizing their legal personality plays a major role in the protection of the freedom of association and, in particular, the right to incorporate associations. There are two principal systems for incorporating associations:

• The notification system, also known as the declaration system (adopted by France, the Netherlands, Belgium, and Lebanon, among others). This system is premised on the theory that associations are formed solely by the will of their founders without any intervention by the administration; the latter plays a passive role and notes the formation of the association by virtue of a declaration presented to the competent administrative authority by the founders. The notification is finalized by the delivery of a receipt for the declaration.
• The registration system, also known as the acknowledgment system (adopted by the majority of the countries, and particularly common in the Middle East).6 Under this system, the formation of the association is subject to registration before the competent authority. Registration only occurs with the approval of this authority; thus, the administration plays an active role since it must acknowledge the existence of the association. 7

Lebanon has adopted the notification system. Lebanon has a parliamentary regime and a fragile democracy that suffers from a lack of democratic culture. The Lebanese experience is interesting due to the paradoxical confrontation between the liberal laws and case law, on the one hand, and the authoritarian administrative practices on the other.

As for the registration system, it has been adopted in the majority of the Arab countries, including the Hashemite Kingdom of Jordan. This paper uses Jordan’s civil society law as a case study, because legal reform efforts are being carried out in the context of the recent development of the civil society sector in Jordan and the sector’s resistance to the repressive measures adopted by the government.

This study aims to analyze the legal protections of the right to incorporate associations in the two Arab countries under study in order to determine which offers greater guarantees when applied in a non-democratic environment: the notification or the registration system. The study will investigate each of the two systems of incorporation by reviewing the law, the case law and the administrative practice in each country under study.

This paper includes five main sections: Section one is an introduction that offers a general background on the legal regulations for associations in Lebanon and Jordan. Section two describes and analyzes the notification system in Lebanon in an attempt to determine whether or not the Lebanese experience can serve as a good model for reform in other Arab countries. Section three explores the registration system in the Jordanian case and highlights the hazards of the application of a registration system in such a non-democratic environment. Section four describes one common violation of the freedom of association in both countries under study – specifically, the banning of undeclared associations. Section five puts forth recommendations based on the analysis for legal rules that will guarantee the freedom of association.

I. Legal regulation of associations in Lebanon and Jordan.

In order to analyze how the freedom of association is protected, it is important to draw attention to the current legal framework that governs associations in both Jordan and Lebanon. This scrutiny will take into consideration four sources of law and practice on incorporating associations: the constitution, the law, the case law and the administrative practice.

In Lebanon, the freedom of association is consecrated in Article 13 8 of the Constitution,9 although it was earlier guaranteed by the Ottoman Law, dated August 3 rd, 1909, that governs the incorporation of associations in Lebanon (hereinafter referred to as the “Ottoman Law” or the “1909 Law”). The Ottoman Law is directly inspired by the French Law on Associations, dated July 1, 1901. Known for its liberal bent, the Ottoman Law adopted a notification system, also called a declaration system, for the incorporation of associations.

The Lebanese notification system is applied to all associations except those governed by special legal regulations which require a prior authorization (addressed below). Despite its liberal nature, however, the Lebanese law prohibits undeclared associations and cedes power to the government to refuse to receive an association’s declaration and dissolve it by virtue of a decree issued by the Council of Ministers. In addition, Lebanese legislation contains repressive requirements with respect to the following particular types of associations, the incorporation of which requires a prior authorization: foreign associations,10 youth and sports associations,11 and syndicates of employees and employers.12 Furthermore, the law has obliged such associations, in particular youth and sports associations, to adopt specific forms of statutes and by-laws.

The case law in Lebanon is liberal. It includes numerous decisions designed to keep intact the enabling provisions of the 1909 Law and to ensure the conformity of administrative practice to the law and to the Constitution. The Constitutional Council has not had the occasion to render a verdict directly addressing the freedom of association. It has, however, issued two 1997 decisions13 that granted authority equivalent to the constitutional to the Universal Declaration of Human Rights (UDHR) and the International Covenant on Civil and Political Rights (ICCPR), which is a fundamental source of human rights protection in Lebanon.14

On the other hand, the State Council15 has issued several decisions since 1946 with respect to the protection of freedom of association. Despite the liberal legal environment established through the laws discussed above and refined by the case law, the administrative practice in Lebanon has reflected a repressive attitude towards associations, violating the Constitution and the law by imposing a prior authorization requirement on the incorporation of associations.

Unlike the Lebanese case, while freedom of association in Jordan is protected by the Constitution, its laws are contrary to the standards for freedom of association set by International Law. Article 16 of the Constitution grants Jordanians the right “to establish societies and political parties provided that the objects of such societies and parties are lawful, their methods peaceful, and their by-laws not contrary to the provisions of the Constitution.” While Article 16 seems to provide space for individuals to establish associations, its paragraph (iii) places the establishment of associations and political parties under the control of the law. Jordanian Law N° 33 of 1966 (hereinafter referred to as the “1966 Law”) specifically regulates the creation of associations and social bodies and imposes a registration system of incorporation.

The 1966 Law’s provisions do not protect the right to freedom of association: they grant absolute discretion to the Minister of Social Affairs or the Minister of Interior to register associations, ban undeclared associations, and establish long and burdensome administrative procedures. Notwithstanding these harsh circumstances, Jordanian civil society organizations persist in presenting a draft law to improve their legal environment.16 However, it is disappointing that this draft law, presented to the Jordanian Parliament in 2006, also contains many repressive and arbitrary provisions and follows the example of the 1966 Law in many aspects.

Civil society organizations also mounted legal challenges to the restrictive 1966 Law, but the Courts did not show any courage: several decisions confirmed the absolute discretion of the Minister’s powers. Administrative practice conformed to the 1966 Law, and institutionalized a restrictive attitude towards the incorporation of associations.

This quick overview of the status of the freedom of association in the two countries under study shows that the right to form associations freely suffers from a lack of guarantees and repressive administrative practices. The two countries’ practices violate four fundamental aspects of the right to free association which constitute, we believe, the core of the right: first, the right to form associations without inappropriate administrative obstacles; second, the right to form undeclared or informal associations; third, the right to choose the goals of the association without any restriction other than those provided by the law in a democratic society (e.g., public order, national security); and finally, the ability to draft the association’s statutes and by-laws freely without detailed requirements and restrictions.

II. The notification system: is the Lebanese law a good model?

The application of the notification system in Lebanon is a rare legacy transferred by the Ottomans to the Lebanese State.17 The 1909 Law is considered a liberal law and is the oldest law still in force in the region with regard to associations. However, the liberal character of the Law has not always been welcomed by the Lebanese authorities. In fact, since Lebanese independence in 1943,18 the administrative practice towards associations has often been arbitrary, particularly in the post-civil war period,19 during which administrative practice instituted a system of control vis-à-vis the emerging civil society. Challenges to this arbitrary administrative practice provided the Courts with opportunities to issue opinions on numerous aspects of Lebanon’s protection of the right to freedom of association.

A. The incorporation process according to the Ottoman Law of 1909 in Lebanon

The notification system of incorporation of associations has two main requirements: (1) the formation of the association is accomplished by the sole will of its founders; and (2) the declaration of the founders makes the association’s legal status presumptive. The notification system, when properly implemented, suggests that (3) the administration is obliged to receive the declaration – an obligation also referred to as a “binding authority” – and finally, (4) that the birth of the legal capacity of the association occurs at the moment of declaration.

1. The formation of the association

Following the example of companies (commercial or civil) which are primarily an agreement between two or more partners, the association is an agreement between a certain number of individuals (specified by the law) who “decide to unite their knowledge and efforts in order to reach certain goals which are not to divide profit.”20 As mentioned before, this provision is heavily inspired by French law. In fact, the contractual nature of the association appears clearly in Article 1 of the 1901 French Law on the Contract of Association, which defines the association as being a convention between a number of individuals and subjects the contract of association, with respect to its validity, to the general principles governing agreements and obligations.

Accordingly, associations are founded by virtue of the sole will of their founders, which is evidenced by the signing of the association’s by-laws by its founders. The administration plays a passive role limited to receiving a declaration presented by the association, and hence being notified of its formation.

Moreover, Article 2 of the 1909 Ottoman Law in Lebanon confirms these principles and clearly states that “no permit is initially needed to found an association.”“However,” states the same article, “in all cases, the government must be notified of the association after it is founded in accordance with Article 6.” This principle is a direct recognition of the right to freedom of association, confirmed by the French Constitutional Council in its founding decision on the freedom of association dated July 16, 1971:

“Considering that freedom of association must be placed among the fundamental principles acknowledged by the laws of the Republic, and solemnly reaffirmed by the Preamble of the Constitution; that this principle is the basis of the provisions of the law of 1901 regarding the contract of association; based on that principle, associations are created freely and may be made public with the sole requirement of a prior declaration deposit; therefore, except measures that could be taken regarding specific categories of associations, the formation of associations, even if they appear to be null or pursue an illegal purpose, may not be submitted for its validity to a prior intervention of the administration or even of the judiciary branch.” 21

However, and in order to enjoy legal capacity, associations should be subject to a formal requirement: a declaration to the public authorities.

2. The declaration to the public authorities:

Lebanese law requires that associations, once formed, declare themselves to the public authorities; otherwise they are considered to be secret associations and hence subject to legal proceedings. Article 6 of the 1909 Law states explicitly that the founders (or their legal representatives) “must immediately provide a signed and stamped statement which includes the address of the association, a statement of its goal, its main office, the names of those in charge of running its affairs as well as their titles and location, to the Ministry of Interior (…). A receipt shall be delivered to them in return. Along with providing this attestation, two copies of the statutes must be attached, to which have been endorsed the official seal of the association.”

The declaration mentioned in Article 6 is not an application for registration which should lead to the issuance of an administrative decision to approve or to reject the registration of the incipient association. Under the notification system, the association is formed before any contact with the public authorities. Thus, the declaration to the public authorities is just a fulfillment of the association’s legal duty to make public its establishment in order to acquire legal capacity. In return, the association is entitled to receive a receipt from the public authorities designated by the law — the “receipt of Ilm wa Khabar,” which literarily means “information and notification” (referred to hereinafter as the “Receipt” or the “Ilm wa Khabar”).22

It is notable that the Ottoman Law does not fix any deadline for the administration with respect to the delivery of the Receipt, whereas the French law fixes a five day limit from the date of the declaration. Although the delivery of the Receipt does not have a legal impact on the association’s legal capacity, which is acquired by the declaration only, the omission of a time limit has been exploited by the administration, as we will see in the following section. The latter refrains from issuing the Receipt before it has carried out investigations and inquiries regarding the objectives of the association. Additionally, following the example of the French system, the Lebanese administration instituted the custom of publishing the Receipt in the Official Gazette. This obligation is not prescribed by the 1909 Law, but is mentioned in Article 5 of the French Law of 1901. Through this practice of publication of the Receipt, the public authority acquires the possibility of refraining from issuing the Receipt directly to the association in order to later publish it.

For these reasons, it is important to shed light on the weakness of the Law due to the absence of a deadline for issuing a Receipt, and to put in perspective the powers of the public authority. These points will be addressed in the analysis of Lebanese administrative practice.

3. The powers of the administration upon reception of the declaration: a binding authority

Article 6 of the 1909 Law explicitly states that the administration shall issue the Receipt upon reception of the association’s declaration. Therefore, the powers of the administration in this respect are restricted, and the latter is bound to issue the Receipt. This obligation of the administration regarding the issuance of the Receipt has been confirmed by Lebanese case law. In its decision dated November 18, 2003, the State Council stated that, upon the reception of the declaration mentioned in Article 6, the “Ministry of Interior is obliged to issue the Ilm wa Khabar in return without any delay and it does not enjoy any discretionary powers with this respect.”23 The obligation has also been extensively confirmed by French administrative case law.24

This does not mean in any sense that the administration should never refuse reception of a declaration. The 1909 Law mentions that the competent authority can refuse to deliver the Receipt in two limited circumstances: first, if the declaration does not include all the required information as indicated in Article 6; and second, if the goals of the association are illicit according to Article 3 of the Law, which states that the goals of the association shall not:

• violate the provisions of the laws and public morals;
• aim to jeopardize the comfort of the monarchy and the integrity of the state property;
• aim at changing the form of the government; or
• politically discriminate between all Ottoman citizens.

According to the same article, should any association violate the aforementioned provisions, the association must be dissolved immediately by virtue of a decree issued by the Council of Ministers. This type of refusal could constitute fertile ground for abuse by the authorities, who wield great discretion in determining the compliance with the law of the association’s goals. However, the nature of the notification system substantially reduces this risk of abuse. In fact, the administration cannot refuse or reject the incorporation of the association by a simple decision, issued by a Court or by an official of the Associations Registry, for instance, since the association has been already incorporated and has a legal existence under the notification system. In order to ban an association, the administration must refuse to deliver the Receipt and take an administrative decision executed by a decree issued by the Council of Ministers to dissolve the association. The issuance of a decree is a complicated and burdensome procedure for the administration. Furthermore, the decree is potentially of greater significance than the simple refusal of the administration to register the association under the registration system. In fact, the decree is an administrative decision that requires an affirmative vote in the Council of Ministers; once approved, the decree is officially declared by the Minister of Information as a Council of Ministers’ decision and then published in the Official Gazette. Therefore, since the decree is issued by the Council of Ministers as a political body, the latter is highly accountable for its decision before the Parliament and public opinion. Consequently, a decision to dissolve an association following the refusal to issue a Receipt could provoke a political crisis or great criticism of the Council of Ministers if the decision was not legitimately grounded. This constitutes a practical guarantee against the abuse of the administration with respect to reception of the declaration and issuance of the Receipt. Moreover, since the end of the civil war in 1990 and during the fifteen years of the Syrian Lebanese dictatorship in Lebanon, the Council of Ministers did not issue a single decree according to the procedure described above, although thousands of associations were incorporated during this period.25

Nevertheless, the administration’s abuse of power could result from another flaw in the Ottoman Law: the law does not fix any time limit for the administration’s decision to dissolve the association by virtue of a decree issued by the Council of Ministers. Thus, associations may find themselves in a situation of uncertainty during which they do not enjoy legal capacity, which is acquired only by issuance of the Receipt. The solution to this weakness can be found in Lebanese administrative law. Should the Ministry of Interior refuse to issue the Receipt, the Ministry is deemed to have issued an implicit decision of refusal on the date the declaration was made. This implicit decision of refusal can be challenged before the State Council within a period of two months from the date of the implicit decision.26

4. The effect of the declaration: the birth of legal capacity

It is clear from what has been stated above that associations are formed upon the signing of by-laws by their founders, but associations do not enjoy legal capacity before presentation of their declaration to the public authorities. Thus, it is necessary to fix the moment of the birth of the legal capacity: is it at the moment of the declaration or the moment of the issuance of the Receipt?

This question was examined by the State Council in its founding decision, dated September 25, 1946. In that case, the association presented its declaration to the administration in compliance with Article 6, but the administration refused to issue the Receipt. The association then challenged the implicit decision of refusal by the Ministry of Interior before the State Council. The Ministry of Interior contested the legal capacity of the association but the State Council rejected the Ministry’s allegations and confirmed that the association enjoyed sufficient legal capacity to present the lawsuit before the administrative court. In order to reach this verdict, the State Council based its reasoning on Articles 2 and 8 of the Ottoman Law of 1909. Article 2 states that “no permit is initially needed to found an association”; and Article 8 states that “each association having provided a statement according to article 6 can advance to the courts through an intermediary as either plaintiff or defendant …, and can manage and administer … : 1) the monetary shares given to it by members …; 2) the location designated for administering and the meeting of its members; [and] 3) the non-moveable assets necessary for carrying out the intended goal as given in its own statutes.…”. The State Council then considered that these two Articles imply that the “incorporation of an association does not require a license or an acknowledgement from the government; [the association] just has to inform the government after its incorporation, which happened in the present case,” and therefore, the association enjoys legal capacity since it has fulfilled the obligations prescribed by Article 6.

This principle has been reconfirmed in the aforementioned decision, dated November 18, 2003, in which the State Council declared that, “according to the explicit terms of Article 8, the association enjoys legal capacity solely upon the deposit of the declaration mentioned in Article 6 of the law on associations.”27

The significance of this question increases in view of Lebanese administrative practice, which considers that the birth of an association’s legal capacity is subject to publication of the Ilm wa Khabar in the Official Gazette, as we will see in the following discussion.

B. The distortion of the notification system in Lebanese administrative practice versus the courage of the Courts

Despite the clarity of the text and the case law, the administrative practice in Lebanon has generally been authoritarian and contrary to the law. It is important to note that in the post-war period under the Syrian occupation of Lebanon, the government adopted a repressive attitude towards civil society organizations. It worked to have broad control over the formation and incorporation of new associations. This practice was overcome, however after the Syrian Army’s 2005 withdrawal. In fact, under the pressure of and in close collaboration with the civil society organizations, particularly the Lebanese Association for the Defense of Rights and Liberties (ADDL),28 the Minister of Interior issued Circular N° 10/AM/2006, dated May 19, 2006,29 which establishes a process of incorporating associations in conformity with the liberal spirit of the 1909 Law. The administrative practice was also rehabilitated under the influence and the pressure of liberal case law that condemned the recent illegal and unconstitutional practices. Unfortunately, this reform did not last for more than one year. In fact, the current Minister of Interior30 adopted a substantially controlling attitude31 towards the incorporation of associations which violates the law and the Ministerial Circular. This practice is illegal at three levels: (1) the distortion of the Ilm wa Khabar concept and the denial of legal capacity; (2) the insertion of approval of the security services as a requirement for the “formation” of an association; and (3) the abuse of power of the administration with regards to the reception of the declaration.

1. The distortion of the Ilm wa Khabar concept and the denial of legal capacity: declaration or prior authorization?

The Lebanese government has transformed the declarative nature of the Receipt into a de facto prior authorization requirement. The simple declarative statement mentioned by the law has been construed as a “request,” or an “application,” subject to scrutiny by the Ministry of Interior, which shall “approve the incorporation” of the association or reject it. As result of this distorted process, the Ministry issues a “decision” to “grant” the Ilm wa Khabar to the association. This illegal administrative practice is illustrated in this text of the Ilm wa Khabar published in the Official Gazette:

“The Minister of Interior,

Based on the Law on Associations dated August 3, 1909 and in particular Article 6 thereof,

Based on the Request presented by the founders of the association named (…), registered before the Political and Administrative Affairs Department under the number (…) dated (…),

Following the approval of the General Security Services in its letter N° (…) dated (…),

Based on the proposal of the General Director of the Ministry of Interior,

Decides the following:

Article 1: The association named (…) is granted the Ilm wa Khabar.”32

Consequently, should the Ministry refuse to grant Ilm wa Khabar, the association is considered illegal and hence subject to legal proceedings or Ministerial dissolution. Furthermore, the administration considers that the approval does not enter into force unless it is published in the Official Gazette, publication of which occurs at the end of the “incorporation procedure,” a long process abusively extended by the administration, and which is subject to the sole discretion of the Ministry. The association in practice only enjoys legal capacity at the moment of publication of the Ilm wa Khabar.

This administrative practice has been very harmful as a practical matter to many civil society initiatives in Lebanon. Associations have been paralyzed and deprived of the capacity to conduct the legal acts that allow their existence and operations: opening bank accounts, entering into agreements such as leases for premises with third parties or employment agreements, receiving donations, and in general, carrying out any act or transaction. Nevertheless, in the last decade, awareness regarding the rights of associations has grown and many banks open accounts for associations that lack Ilm wa Khabar.33

This authoritarian practice is very well described in the allegations of the Ministry in the context of a seminal case that was examined by the State Council.34 This case, Association for the Defense of Rights and Liberties v. State, dated November 18, 2003, produced of one of the most liberal and important decisions in Lebanese administrative case law by the State Council.

The plaintiff, the Association of Defense of Rights and Liberties, requested the nullification of a circular issued by the Ministry of Interior on January 16, 1996, which imposed special organizational requirements upon penalty of withdrawal of an association’s Ilm wa Khabar. The plaintiff claimed that the Ministry refused to register the minutes of an association meeting on the grounds that the association “does not have a license” due to a violation of the contested circular. Before the State Council, the Ministry first contested the legal capacity of the association because “it has not been granted the Ilm wa Khabar yet due to the fact that the investigations necessary for the confirmation of its lawfulness and its conformity to the laws according to Article 3 of the Law on Associations have not been achieved yet.” The Ministry also contended that “the Ilm wa Khabar is not a receipt but it is a license issued by the authority with appropriate jurisdiction (the Ministry of Interior) and that incorporation is subject to the issuance of Ilm wa Khabar ….”35

The response of the State Council to these ill-founded allegations was sharp and in total compliance with the liberal spirit of the law. The State Council declared that “contrary to the allegations of the State,the association enjoys the legal capacity by force of the explicit terms of Article 8 solely upon the deposit of the declaration mentioned in Article 6 of the Law on Associations, and by force of the law, the Ministry of Interior is obliged to issue the Ilm wa Khabar in return without delay, and it does not enjoy any discretionary powers with this respect.”36

Furthermore, the State Council confirmed the declarative nature of the Ilm wa Khabar, the latter being a simple receipt and not an administrative decision. In fact, in a decision dated May 22, 1967, Syndicate of the Owners of Audit and Accounting Offices,37 the State Council confirmed that the Ilm wa Khabar is not an administrative decision. In this case, the Syndicate requested before the State Council, “the invalidation of Declaration N° 58/AD, dated March 12, 1964, granted by the Ministry of Interior with respect to the formation of an association with similar goals to the Syndicate’s.” The State Council rejected the Syndicate’s demand on the ground that the administrative court lacks jurisdiction to examine the demand of the Syndicate. It explained that the “Ilm wa Khabar is not a prejudicial administrative decision (which the State Council would be competent to examine) as long as the prejudice results from the formation of an association prior to the Ilm wa Khabar.” Consequently, the State Council decided that the competent judicial authority is the Civil Court, given the fact that associations are private entities and that the claimed prejudice resulted from the existence and founding of the association, not from the Ilm wa Khabar.

Following the issuance of the above mentioned Circular of May 19, 2006, the administrative practice was rehabilitated and the Ministry of Interior corrected the illegal practice related to Ilm wa Khabar. Many Ilm wa Khabar published in the Official Gazette after the issuance of the Circular reflect this rehabilitation, as the text is in compliance with the 1909 Law:

“The Minister of Interior,

(…)

Based on the Law on associations dated August 3, 1909 and in particular Article 6 thereof,

Based on the Circular N° 10/AM/2006 dated May 19, 2005,

Based on the Declaration presented to the Ministry of Interior and Municipalities by the founders of the association named (…), and registered before the Common Administrative Administration under the number (…) dated (…),

Based on the proposal of the General Director of the Ministry of Interior,

Decides the following:

Article 1: The Ministry of Interior and Municipalities have been informed and notified of the incorporation of the association named (…)”38

2. The abuse of power of the administration with regard to the reception of the declaration

As mentioned above, the administration unlawfully assumed discretionary powers regarding the delivery of the Receipt, in particular during the last fifteen years. This abuse of discretion is reflected on numerous levels. The first example is the execution of investigations and inquiries, the results of which influence the Ministry’s approval or rejection of an association’s incorporation (addressed below). Second, the administration has ignored its binding authority and assumed an extensive margin of discretion in refusing to receive the declaration of certain types of associations and deliver the Receipt in return. This has been the case particularly with regard to what the Ministry calls “political associations,” and to associations with political goals and activities according to the sole discretionary judgment of the Ministry.39

However, some associations have creatively adopted a legal tactic consistent with the core nature of the system of notification to counter these illegal practices by the Ministry. In order to avoid the risk of refusal of their declaration by the Ministry of Interior, the founders of an association may have a bailiff operating under orders from a Notary Public deliver the declaration to the Ministry. According to Article 399 of the Civil Procedure Code, this serves as proper notification of the declaration to the Ministry. As for the Receipt, according to Article 400 of the Civil Procedure Code, the bailiff is obliged to write the result of the notification on an official document; that document officially serves as the Receipt. Should the Ministry refuse to be notified, the bailiff would leave the declaration with the Ministry and state on the document serving as the Receipt that the latter has refused to be notified. Utilizing this method, the declaration is made in compliance with the 1909 Law; the association thus enjoys legal capacity starting at the moment of notification of the Ministry. This method avoids the whole illegal and burdensome process of Ministry investigations and inquiries and the hazards of the administrative practice.40

In fact, the administration plays a passive role. Under the registration system, in contrast, the administration cannot be forced to register an association since the competent authority plays an active role and must make a decision with respect to the approval or refusal of the registration.

3. The approval of the security services: a “condition of formation of the association”

The Ministry of Interior has instituted a phase of investigations and inquiries following the deposit of the association’s official documents and preceding the issuance of the Receipt. During this phase the Ministry sends the documents to the security services for scrutiny and investigation.41 Before the end of the investigation period, the Ministry refuses to deliver a Receipt based on the fact that the “licensing” of the association depends on the outcome of the investigations. Should the investigation result in negative findings, the Ministry refrains from delivering the Receipt and the association does not enjoy legal capacity for an undefined period of time.

The approval of the investigation authorities, in particular the General Security, forms an integral part of the notice of the Ilm wa Khabar published in the Official Gazette by the Ministry of Interior. In fact, some publications make a general reference to the competent authorities: “After the approval of the competent authorities.”42 Others refer explicitly to the approval of the General Security services: “After the approval of the General Security Services in its letter number 5417/AAR dated March 1, 1998.”43

As explained above, this arbitrary practice is contrary to the law given the fact the administration has a binding authority to issue the Receipt provided that the formal legal requirements are satisfied. Although it is clearly understood that it is within the scope of powers of the administration to conduct any type of security investigation or other inquiry, the administration does not have the power to condition the issuance of the Receipt on the result of any investigation or inquiry. It is worth noting that the United States has taken a different approach with regard to investigations of associations, relying on control ex post rather than control ex ante. In the United States, if after granting the registration approval, the administration determines that an organization is operating in an illegal manner, the attorney general can petition the courts to revoke the organization’s corporate charter. “It is easiest to tell whether an organization is abusing its privileges once it has actually commenced operations.”44

Moreover, the investigation and inquiry procedure has not been limited to the security services. In fact, before the issuance of the Receipt, the Ministry of Interior requests official “advice” from administrative entities that are involved in the field in which the association is active. For example, the Ministry may request the advice of the Ministry of Social Affairs with regards to associations that have social goals or the Ministry of Public Health concerning associations that are engaged in public health issues.

As we have seen above, the reference to the General Security services and other authorities’ approvals have been removed from the official notice of the Ilm wa Khabar following issuance of the May 19, 2006 circular. However, the investigations and inquiries have gained ground recently, and the Ministry accords this step crucial importance. The current administrative practice is not as objectionable as the one that prevailed during the post-war period – it is close to meeting the requirements and the spirit of the 1909 Law, but it is characterized by unjustified delays due to the investigations phase.

C. Exceptions to the notification system: licensing of certain types of associations

Despite the liberal character of the Law of 1909, one facet of the Lebanese legal system for the incorporation of associations is very authoritarian: the licensing system. This system is applied to foreign associations and to youth and sports associations.

1. Foreign associations

The incorporation of foreign associations in Lebanon is governed by legislative decree N° 369/LR, dated December 21, 1939, issued by the High Commissioner of the French Republic in Lebanon under the French Mandate. This law formalized a prior licensing system established through a Council of Ministers decree.45 It is necessary to mention a priori that legislative decree N° 369/LR, like the majority of the laws issued under the French Mandate, is directly inspired by a French law dated April 12, 1939. It is a typical example of “irrational imitation”46 that characterizes many legal institutions in Lebanon. The issuance of this law under special circumstances in France, to be specific, the imminence of the War and the national socialist propaganda, reflects the worries of the French government at that time regarding the proliferation of national socialist associations and parties in the country.

According to Article 2 of the legislative decree, which is still in force today, the government can both issue a temporary license and also withdraw the license at any time by virtue of an “administrative decision” issued by the High Commissioner or his representative. Despite the high degree of authoritarianism that characterizes this system, the regulation of foreign associations in Lebanon does not constitute a serious concern for civil society advocates in Lebanon. In fact, the “infiltration” of foreign associations in the Lebanese civil society is contested by numerous parties in Lebanon who claim that these associations may have political agendas and that their development in the country might be a “security threat.”

2. Youth and sports associations:

The second class of organizations requiring a license encompasses youth and sports associations. These associations are governed by law N° 16/72, dated December 15, 1972 and decree N° 6997, dated December 24, 2001. Article 1 of the law excludes youth associations from the scope of application of the 1909 Law, and subjects them to the supervision of the Ministry of Education, Youth and Sports. The law also fixes a prior licensing system for the incorporation of these entities involving very strict control of their activities. Furthermore, the 2001 decree obliges the associations to use detailed, standardized forms of articles of association prescribed by the law, without which a license will not be granted.

After this description of the notification system and the ambiguities that surround it, we turn to another legal system that regulates associations: the registration system adopted by the Hashemite Kingdom of Jordan.

III. The registration system and its abusive application: the Jordanian example.

The registration system is one of the most common systems of incorporating associations in the world. It is adopted by both democratic and developed countries and also by non-democratic ones. In its purest form, the system of registration is characterized by a simple and quick administrative procedure, the obligation or binding authority of the administration to act on an association’s registration, and limitations on acceptable association aims based on notions of public order, national security, good morals and similar factors. However, as liberal as this system can be, in countries like Jordan with weak democratic cultures, this system can be applied in a manner that jeopardizes the legal guarantees of associations and transforms registration into an administrative act of prior authorization. The Jordanian experience is of capital importance given the fact that Jordanian courts have issued several decisions that confirm the repressive components of the registration law. The Jordanian case is also interesting because the country is now considering a new draft law which, unfortunately, is only slightly less repressive than the current law.

A. A democratic formula within a democratic system

1. A simple and quick procedure adapted to the requirements of freedom of association

Unlike the notification system of incorporation, the registration system prescribes that incipient associations must apply for registration before a competent public authority, submit all the required documents, and fulfill other formal legal requirements. The competent authority scrutinizes the application and issues a decision of approval or refusal. The main difference between the notification system and the registration system lies in the date of the birth of the association’s legal capacity. Under the notification system, the association is formed at the moment of signature of the association’s by-laws by the founders without any intervention from the administration, and it acquires legal capacity at the moment of the declaration to the public authorities, who play a passive role. Under the registration system, in contrast, the formation of the association and the birth of its legal capacity are not effective before the decision of the relevant public authority to approve the registration of the association, i.e., to acknowledge the association. The public authorities play an active role.

Germany provides a good example of the registration system. In Germany, associations are regulated by Articles 21 to 80 of the Civil Code. According to these provisions, not-for-profit associations enjoy legal capacity through their registration in the registry of associations, which is administered by the Court of First Instance in the same jurisdiction as the headquarters of the association (Articles 21 and 55). The association must have at least seven members (Article 56) who will elect a board that may contain one or more members. An association’s registration application must be accompanied by the association’s original statute signed by at least seven members, a copy thereof, and a copy of the minutes of meeting regarding the election of the board members (Article 59). “The registration may be rejected if the registering court holds that the papers presented are not sufficient according to the law. The court must provide a substantive reason for rejection, which can only be based on formal deficiencies, for reasons of illegal purpose or public safety or if the association’s purposes are considered to be economic.” An association has the right to appeal a rejection of its registration application.

Clearly the registration system when properly applied is not a system of prior authorization. Although an association presents an application before the public authorities and has to wait for its approval or rejection, the law features many guarantees that aim at protecting the freedom of association:

• the decision of the administration or the court, as in the German case, must be issued within a short deadline;
• the administration is bound to act within its authority because the administration may not reject an application unless formal legal requirements are unmet;
• the administration shall not have any margin of discretion with respect to the objectives of the association; and
• the requirements imposed by the administration on the content of the statutes and the articles of an association are limited to the basics, and therefore the content of the statutes cannot be contested by the administration unless they omit specific required information.

2. The aims of associations: between legitimacy and illegitimacy

The aims of an association constitute fertile ground for abuse in non-democratic environments when it comes to approval or refusal of registration. As we will see in the following section related to the Jordanian case, refusals of registration are often based on the alleged unlawfulness of an association’s aims. It is understood, however, that every democratic country has to balance the two requirements that constitute basic pillars of every constitutional order: on one hand, the respect and protection of human rights and on the other, the protection of public order. Both principles enjoy constitutional protection in the majority of the states around the world. In France and Lebanon for instance, the provisions protecting human rights constitute an integral part of the constitution, whether cited in the text of the constitution, in the preamble or consecrated by the constitutional case law. As for public order, it constitutes an objective of constitutional value (objectif à valeur constitutionnelle) in France and a principle of constitutional value (principe à valeur constitutionnelle) in Lebanon.

Therefore, restrictions on the freedom of association in the name of the protection of public order or related concerns must be based on legitimate grounds. These grounds are defined in Article 11 of the European Convention of Human Rights, which states the following:

“1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and join trade unions for the protection of his interests.

2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by the law and are necessary in a democratic society in the interest of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedom of others. This Article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State.”

Accordingly, restrictions on the freedom of association are possible, but only when three conditions are each fulfilled: the restriction must be prescribed by law, must pursue a legitimate aim and must be necessary in a democratic society.47

The first condition derives from a legal principle consecrated by the majority of the constitutions around the world and consolidated by case law: the exercise of human rights and fundamental freedoms shall be regulated by law. In France for example, this principle is consecrated by Article 4 of the Constitution which states that “the law fixes the rules that concern: (…) – civic rights and fundamental guarantees granted to citizen for the exercise of public liberties.” The same principle is consecrated by the Lebanese Constitution, which states in its Article 13 that “the freedom of association [is] guaranteed within the limits fixed by the law.” Consequently, the limitation of interference in the freedom of association to circumstances permitted by law is a constitutional requirement.

Concerning the second condition, according to paragraph 2 of Article 11, the freedom of association may only be restricted for the following reasons:

• in the interest of national security or public safety,
• for the prevention of disorder or crime,
• for the protection of health or morals, or
• for the protection of the rights and freedom of others.

The main problem with these motives is in the difficulty of defining their content, and thus their vulnerability to abuse. In fact, many countries have adopted similar enumerations, though the precise wording varies from one country to another depending on the nature of the society, the nature of the legal system, the judicial policies of the courts, etc. Therefore, it is important to shed light on the guarantees adopted by various international courts to prevent abusive interpretations of the exceptions.

Among the guarantees established in the international case law figures the necessary legal basis of the restriction, the principle of proportionality, which will be addressed below, and the principle of the narrow interpretation of the laws and the legal principles related to the exercise of human rights and public liberties. This last principle requires a restrictive interpretation in favor of human rights every time a restriction on a public liberty or a fundamental right is considered. This principle has been confirmed by the European Court for Human Rights in the decision, Sidiropoulos and Others v. Greece, dated July 10, 1998: “Exceptions to freedom of association must be narrowly interpreted, such that the enumeration of them is strictly exhaustive and the definition of them necessarily restrictive.”48 In the same decision, the Court confirmed this principle by stating that “the exceptions set out in Article 11 are to be construed strictly; only convincing and compelling reasons can justify restrictions on freedom of association.”49 The principle has also been confirmed by the Lebanese State Council, as reflected in Decision N° 134, dated March 25, 1970, that “the freedom of incorporation of associations is guaranteed by virtue of Article 13 of the Constitution and that it is regulated by the law; nevertheless, this liberty cannot be restricted except in cases restrictively provided for by the law.”50

Finally, should the restriction be prescribed by law and have a legitimate aim, the European Court for Human Rights requires that it be necessary in a democratic society. This requirement allows the Court to examine the proportionality between the interference and the legitimate aim that it pursues. “A measure will be proportionate (and thereby necessary) if it fulfills a pressing social need and if it does not restrict the freedom of association to a larger extent than is necessary for satisfaction of that need. It is therefore essential to carefully find the appropriate balance between the fundamental right of the individual and the interests of the community as a whole.”51

B. Application of the system in a non-democratic environment: the abusive transformation of the registration system into a prior authorization system

1. A long and burdensome procedure

In Jordan, the incorporation of associations is governed by Law N° 33 on Associations and Social Bodies, issued in 1966 (hereinafter referred to as the “1966 Law”). Despite some minor amendments, this Law is still in force. In 2006, a coalition of associations52 prepared a draft law intended to replace the old law and submitted it to the Prime Minister’s Office, where it is currently blocked for “legal review” before being sent to the Parliament. The draft law includes some technical improvements, but both the current and the draft laws are authoritarian and far from meeting the requirements of freedom of association.

a) The 1966 Law: an archaic and non-democratic system

The incorporation procedure instituted by the 1966 Law is characterized by two elements that make it non-democratic: first, it gives the administration an unlimited margin of discretion; second, the procedure is long and burdensome.

On one hand, the 1966 Law grants the Minister of Social Development unlimited discretion to refuse a registration application. In fact, paragraph 3 of Article 7 does not place any restrictions on the Minister’s authority to refuse or approve registration, and does not even prescribe mandatory reasons for the decision. These powers have been widely affirmed by case law. In fact, the Jordanian High Court of Justice has stated on numerous occasions that “the powers of the Minister regarding the approval of the registration of the ordinary association is a discretionary power that aims to the achievement of the public interest and is only restricted by the obligation of its good use: it shall not be vitiated by an abuse of power.”53 In other decisions, the Court has confirmed the principle in similar terms: “The powers of the Minister are discretionary and are determined according to the circumstances governing the country and to the aims of the association requesting the registration.”54 Notably, the Court has not defined “abuse of power,” and has not chosen to exercise its interpretive authority to limit the Minister’s discretion.

On the other hand, it is clearly stated in paragraph (a) of Article 5 of the 1966 Law that the incorporation of associations is subject to a “written license” issued by the Minister. As for the licensing procedure, consistent with Article 7, it involves the following steps:

• The registration request involves three administrative stages: first, the application is presented to the Office of Social Affairs; second, the latter examines the application and provides its recommendations, taking into account the advice of some governmental agencies prior to transferring the application to the Minister; finally, the Minister approves or refuses registration.
• This procedure may take more than four months: the transfer of the file from the Office of Social Affairs to the Minister shall be accomplished within 30 days of its presentation, and the Minister shall make the decision regarding the application within three months of the date of receiving the file. It is clear, however, that these timeframes are subject to abuse, given the fact that the administration can extend deadlines by requesting additional documents. In fact, Article 12 of the 1966 Law addresses the risk of abuse by providing that as of three months from the date of reception of the application, an association is deemed registered and shall enjoy legal capacity unless it receives a notice from the Minister requesting additional information. In 1993, the High Court of Justice reached a verdict on this issue and affirmed that “the expiration of a period of three months as of the date of reception by the Ministry of Interior of the application for registration of an ordinary association grants the founders the right to start working as if the association has been duly registered, should the founders not receive a notice regarding the result of the application or the necessity of additional information or incomplete documents in the application or in the association’s by-laws.”55
   

b) The 2006 draft law: a disappointing reform attempt

Compared to the archaic and authoritarian 1966 Law, the 2006 draft law is a positive evolution. However, the incorporation system that would be instituted by the draft law includes some flaws and weaknesses that make it inconsistent with the freedom of association, principally because the powers of the administration regarding the registration refusal are discretionary and unlimited.

On one hand, the draft law simplifies the registration procedure. This simplification is visible on two levels: the proposed creation of a National Registry of Associations and the reduction of the time frame. In fact, a National Registry is the competent body for registration of associations. The draft law removes power to approve or to refuse the registration of an association from the Minister (of Interior or Social Affairs) and grants it to the Registrar. Thus, the registration procedure would be limited to one administrative stage and removed from the Minister, who is a political actor and whose actions are mostly influenced by political considerations.

Concerning the time frame, paragraph 3 of Article 8 of the draft law fixes a period of forty days during which the decision of the Registrar shall be issued; if the time frame is not met, the association is deemed registered and thus enjoys legal capacity. The shorter deadline is one of the most important differences between the draft law and the 1966 Law. As discussed above, the latter fixed a time limit of four months that could be easily extended.

On the other hand, despite the procedural evolution that would be achieved by the draft law, the text consolidates the discretionary powers of the Registrar regarding refusal or approval of the registration of an association. Following the example of the old repressive law, the new draft law does not contribute in any way to repairing the lack of liberalism of the law: the discretion of the administration remains absolute and unrestricted. The only contribution of the draft law is the requirement that the administration provide the reasoning behind its decision (paragraphs 3 and 4 of Article 8) which, however, does not limit the discretion of the administration. The absence of substantial limitations on the administration’s discretion to refuse registration in the draft law is a lost opportunity, as such restrictions are acknowledged by international instruments such as Article 11 of the European Convention on Human Rights, mentioned above, and are prescribed by the majority of the laws on associations in democratic states.

2. Discretionary powers of the administration regarding the aims of an association: disappointing case law

The discretionary powers of the administration regarding the refusal of registration of associations based on an association’s objectives have been affirmed by the High Court of Justice. In fact, the Court has endorsed an excessively narrow interpretation of what constitutes abuse of power, and has supported decisions of the administration that were clearly contrary to international standards on the freedom of association.

On March 15, 2004, the High Court of Justice of Jordan issued a decision that confirmed the discretionary powers of the Minister with respect to the approval or refusal of associations’ registration applications. In this case, the plaintiffs presented an application before the Minister of Interior requesting the registration of the Association for Legal Assistance for Human Rights. The latter’s aims are essentially to provide legal support for victims of human rights violations and to spread the culture of respect for human rights among all citizens. The Minister rejected the application and refused to register the association. The Ministry’s position on the application can be reduced to two main arguments: first, by taking the decision, the Minister merely exercised the powers granted to him by Article 7 of the 1966 Law; and second, there are other registered associations that carry out the same objectives of support for human rights as the incipient association.

The Court upheld the Minister’s decision, basing its judgment on the following Articles of the 1966 Law: Article 3, which states that the Minister of Interior holds the powers of the Minister of Social Affairs with respect to ordinary associations and committees; Article 5, which provides that “No charitable societies or social bodies may be formed except by a written license issued by the Minister according to the provisions of the present law;” and Article 7, paragraph 3, which states that “the Minister should issue the decision of approval or refusal of the registration request within a period of three months as of the date of reception of the application.” The Court considered that these Articles imply that “the powers of the Minister of Interior with respect to the approval of the registration application of ordinary associations is a discretionary power that aims to realize the public interest, and which is not limited by any restriction except the obligation of using it in a good manner, which means without any misuse of power.” The Court specified then that “the meaning of discretionary power granted to the administration implies that the latter shall have the power to take the decision that it deems necessary in compliance with the aims of the law.”56

Besides the fact that the Court’s ruling is disappointing due to its acknowledgement and consolidation of the Minister’s discretionary powers and the waiver of detailed restrictions, the decision developed a very dangerous precedent with regard to the aims of an association. In fact, the argument regarding the denial of registration of an association because of the existence of other associations that carry out the same objectives is a flagrant violation of the right to freedom of association.

This same question was, in fact, examined by the Lebanese State Council in its founding decision of 1946. The Ministry of Interior refused to issue the Receipt to a dentists’ association given the fact that there was already an association working in the same field. The plaintiff requested the nullification of the Ministry’s implicit decision of refusal to issue the Receipt. The Ministry’s argument was that the refusal to issue a Receipt was based on a “governmental policy that tends to prevent the existence of several associations adhering to the same profession.” The State Council rejected the Ministry’s allegations and stated that “the said governmental policy, that aims to unify the efforts of professionals adhering to the same profession, does not constitute a legal justification to suspend the natural right acknowledged by the law to individuals to incorporate associations provided that such associations do not carry out illicit objectives or undermine the country’s internal or external security.”57 Furthermore, the State Council developed a general principle applicable to any similar case that can stand as a response to Jordan’s High Court of Justice. In fact, the State Council stressed the fact that since the association’s aims are legitimate, there is no reason to consider that its existence would contravene the existence of other associations working in the same field given the fact that every association works for the interest of its members.

The Jordanian Court’s lack of liberalism is reflected in another decision, dated January 15, 2001, upholding the Minister of Interior’s refusal to register an association that aims to “stop the different violations of the owner towards the tenant and to participate in the drafting of any law, regulation, or instructions that concern the tenant, etc.” The founders of the association challenged the Minister’s decision, alleging that it violates the constitution and the law. However, the Court rejected the request to nullify the decision because the Minister enjoys discretionary power regarding approval or refusal of registration of an association. Moreover, the Supreme Court considered that the aims of the association are “in contradiction with the Owners and Tenants Law, which constitutes a basis for the protection of the owner and the tenant equally, and which makes the request of registration of the association illegal.”58

Following this comparative review of the legal regulations in Jordan and Lebanon, we turn to administrative practice in the two countries, specifically with regard to undeclared associations. This perspective is critical, because these laws, whether just or not, are totally different from common practice. In fact, in a country where the institutions of the judiciary are subject to political intervention and the civil society is oppressed and manipulated by the establishment, drawing a line between the deficiencies of the law and the practice of regulation of associations remains a missing link toward the protection of freedom of association.

IV. A common deficiency in both countries under study: the banning of undeclared associations

A. Arguments

The issue of undeclared associations was discussed at length by the French Parliament when drafting the 1901 Law.59 Opinions ranged from extreme liberal positions that supported full legal capacity for such associations to a repressive proposal that aimed to ban undeclared associations. The opinion that prevailed and that was adopted by the Parliament was an intermediate solution: undeclared associations should exist but could not have legal capacity (Article 2 of the 1901 Law). The debate surrounding the question of undeclared associations continues, featuring three main arguments:

1. Freedom of association

Should a declaration or registration be mandatory for every association, two or three persons would not be able to meet permanently without being exposed to legal proceedings. The freedom to incorporate associations, as mentioned above, is one of the basic pillars of a democracy. This right supposes that several individuals can form an entity and organize themselves freely in order to realize common goals without enjoying legal capacity, provided that such goals are in compliance with the law. Being unknown to the public, the only restriction on undeclared associations would be the denial of legal capacity; this is the solution adopted by most of the liberal legal systems like France, the Netherlands, and Germany. Freedom of association also supposes that some groups of people do not wish to subject themselves to administrative procedures such as the registration of an association before the relevant authorities. Moreover, it is a fact that not every association or group of people needs legal capacity to operate and realize its goals. Forbidding this aspect of the freedom of association would result in suppressing numerous small associations and groups which carry out very useful and efficient initiatives.

2. Association is a contract

Since an association is first of all a contract between its members, it must therefore be governed by the same provisions that govern contracts in general. Neither the Civil Code in France nor the Code of Obligations and Contracts in Lebanon makes a declaration or publication a legal requirement for the formation and validity of contracts. It is obvious, however, that publication of some types of contracts60 remains an essential condition for third parties to contest the contract, but publication does not constitute a condition for a contract’s validity.

3. The State’s interests and public security

Some argue that criminalizing “secret associations” or undeclared associations and requiring a declaration or an acknowledgment of their existence aims at preserving the state’s interests and to ensure national security. This argument has been upheld by some countries, mainly Arab states, to justify repression of criminal movements such as terrorists or Islamic movements. Such a requirement would be an illusionary guarantee for many reasons:

• An association that wishes to carry on illegal projects would not mention its goals in the by-laws subject to acknowledgement by public authorities. Such associations would simply execute illegal activities, disregarding the prescriptions of the law and the content of their by-laws.
• The objective of laws governing civil society organizations is not to fight criminality. Forbidding secret associations is not necessarily the domain of associations law. In fact Criminal Codes clearly provide sanctions against all terrorist factions and groups. Besides, the state already has at its disposal the necessary means to fight criminality through police and security forces.
• Experience has shown that the repression of undeclared associations has not produced a desirable result.

B. The legal regime of undeclared associations: the French and German cases61

The legal regime of undeclared associations generally rests on the same pillars in all comparative experiences. In the French law, Article 2 of the 1901 Law is very explicit: “Undeclared associations do not have any legal capacity and thus they cannot acquire real estate, goods or any patrimony; they cannot go to court; enter into agreements with third parties; be the heir to an inheritance; or receive donations.” However, undeclared associations can receive dues to pay their own day-to-day operational expenses. Furthermore, since undeclared associations do not have full legal capacity, their members are personally liable for the association’s obligations. Finally, undeclared associations have absolute freedom with respect to the by-laws that define their structure, governing system, and their guiding principles, which are beyond any government control.

Following the example established under French administrative case law, the Lebanese State Council acknowledged the right of undeclared associations to challenge certain decisions and measures that obstruct their enjoyment of legal capacity. In fact, in its November 18, 2003 decision, the Lebanese State Council “adopts an extensive interpretation of the provisions related to the legal capacity of moral persons in private law and considers that undeclared associations or dissolved associations enjoy the necessary legal capacity … to file a nullification action against certain decisions and measures necessary to complete [the association’s] formation, or that undermine the goals it defends, as for example, the decision to refuse to issue the Ilm wa Khabar receipt or the decision of its dissolution.” The same principle was earlier confirmed by the French State Council.62

The German law, however, adopts an intermediate position. On one hand, Article 54 of the German Civil Code states that such associations shall be governed by the provisions on partnership. Therefore, “when a transaction is entered into with a third party in the name of such association, the person acting is personally liable.” On the other hand, although such associations do not enjoy full legal capacity, it is possible for them to obtain tax concessions under German tax law.63

C. “Secret associations” under Lebanese law: a breach of the right to freedom of association

Undeclared associations are characterized by Lebanese law as “secret associations.” This concept is grounded, at the legislative level, on the 1909 Law and the Criminal Code, which take two different approaches to secret associations. In addition, two different approaches to undeclared associations have been enforced in practice by the Lebanese administration (a repressive approach) and Lebanese case law (a liberal approach).

According to Article 6 of the 1909 Law, associations which fail to submit a declaration to the designated government authority are secret associations. Secret associations are exposed to the penalties instituted by Articles 12 and 13 of the Law: dissolution and banning of the association by the government and a monetary fine of five to 25 gold pounds.64

As for the Criminal Code, under Article 337, running a secret association may be a crime that exposes its perpetrators to imprisonment. According to the Criminal Code, two conditions are required to qualify an association as a “secret association:” first, the association’s goals must be illegal; second, the association must not have informed the authorities of its statutes or the identities of its members despite an explicit administrative request to do so, or provided false information.65 The requirement of a prior official request for information about an association’s members constitutes a sort of guarantee against abuse by the authorities in this regard. Furthermore, in a decision dated June 26, 1946, the Lebanese State Council affirmed that the two conditions cited in Article 337 of the Criminal Code are cumulative. This is contrary to the 1909 Law, which does not require the two conditions, and deems an association secret if it does not present the required declaration, even if its aims are in conformity with the law.66

In spite of these provisions of Lebanese law, the administration has in practice developed a precarious concept of secret associations. This was brought to light in Decree N° 2231, dated February 15, 1992,67 which dissolved 138 associations, and which states in its preamble: “Whereas certain political, social and charitable associations exercise activities in a secret manner, contrary to the licenses given to them and without informing the Ministry of Interior of any of their activities for a period exceeding ten years, violating the laws and regulations that govern the incorporation and the operating of the associations’ activities, and the principle of public order.” Article 1 of the Decree states the following: “The licenses (Ilm wa Khabar) granted to the associations mentioned below and that operate contrary to these licenses have been withdrawn.”

This official statement constitutes a blatant example of repressive authoritarian practice and requires two observations: first, the Decree makes a reference to the “license” issued by the Ministry in favor of the associations, which completely contradicts the law; and second, the definition of secret associations being “associations that did not inform the Ministry of any of their activities during a period exceeding ten years” is an invention of the administration and does not have any legal basis.

Contrary to the stipulations of the 1909 Law on this issue and the archaic, repressive practices of the administration, case law in Lebanon offers a liberal conception of undeclared associations, based on an interpretation of the 1901 French Law that inspired the 1909 Law. The most important case on point is the Court of Cassation decision N° 70, dated July 25, 1963, Assaa v. Turk,68 which remains an isolated and little-known opinion. The case involves an association named Mahfal Al Salam which was incorporated in 1900, but did not present the declaration stipulated in the 1909 Law after that Law became effective. Three members of the association purchased a plot in Beirut in the name of the association’s members. A few years later, the seller contested the purchase agreement before the Court of Cassation, arguing that the association lacked legal capacity due to the fact that it had not presented its declaration to the competent authorities and was therefore a secret association.

Concerning legal capacity, the Court stated that “despite the fact that the non-presentation of the declaration to the authorities deprives the association of legal capacity and consequently of the necessary capacity to undertake and satisfy legally binding agreements, the association can exist as a group of individuals comprising a de facto entity that allows it to acquire some goods and rights such as subscriptions, equipment, properties consecrated for the meetings of the members and for the achievement of their common goals.” This statement by the Court is an explicit acknowledgement of the lawfulness of undeclared associations. This legitimacy is confirmed by another paragraph in the Court’s decision regarding the notion of “secret associations.” In fact, the Court rejected the plaintiff’s allegations and considered that “the associations banned by virtue of Article 2 of the Law on associations [are] secret associations and the Mahfal al Salam is not a secret association given the fact that it has acquired a plot and that it has appeared in social life and has organized parties, some of which were attended by a group of persons from the governmental authorities.” The Court did not consider the failure to present the Ilm wa Khabar as rendering the association secret. It interpreted the term “secret” restrictively, with an explicit reference to freedom of association principles and, by analogy, to the French 1901 Law that tolerates undeclared associations. According to the Court’s conception, should an association exercise its activities publicly and operate in a public manner, it is not a secret association despite the fact that it has not fulfilled the legal requirement of submitting the Declaration to the Ministry. This holding of the Court of Cassation is in perfect harmony with the principles of freedom of association, the Constitution, and the 1909 Law. It is worth mentioning that numerous undeclared associations operate in Lebanon without enjoying legal capacity. This, after all, may be a choice of the concerned groups, who may prefer to remain informal and avoid the administrative procedures and legal requirements for operating the association.

In light of this analysis, the provisions banning “secret associations” in the 1909 Law in Lebanon are obsolete and should be removed. This conclusion is supported on two levels: first, the case law has exceeded even the restrictive and repressive approach adopted in the 1909 Law; and second, the concrete situation on the ground shows the existence of undeclared associations as an expression of the popular will to associate.

V. Conclusion and Recommendations

In recent years, civil society has become a main pillar of reform efforts in the Arab World. Thus, protecting the right to incorporate associations and facilitating their establishment remains a basic requirement for assuring civil society’s freedom to maneuver and enhancing its capacity to successfully pursue reforms. Civil society, in supporting reforms, thus constitutes a key challenge to governments especially in the Arab region which has one of the biggest concentrations of authoritarian regimes.

In this paper, we have described from a legal perspective the two main systems regulating the incorporation of associations in any country. We have identified examples in legislative history and favorable case law – particularly in the Lebanese experience – that can serve as models for liberal reforms on associative rights in any of our Arab countries. This history should be the main source of guidance for assuring prosperity for our reform efforts in the region.

The case studies, as summarized below, support the conclusion that the notification system offers more guarantees than the registration system regarding the right to incorporate associations in non-democratic environments. Therefore, we recommend that the notification system be adopted in those Arab countries where the reform of the laws governing civil society is possible.

1. Notification: The association is formed as a legal entity solely by virtue of the will of its founders, prior to any intervention or interference of any kind whatsoever by the administration. In order to ban the association, the administration has to dissolve it by virtue of a decree issued by the Council of Ministers. Registration: The association does not exist as a legal entity unless it is registered before the competent public authority. In order to ban the incipient association, the administration just has to refuse its registration application.
2. Notification: In order to enjoy legal capacity, formed associations only need to present a declaration to the competent authority which plays a passive role in this respect: it just has to receive the declaration. Should the administration refuse to receive the declaration, it can be forced to do so by a clerk of the Court. The administration does not have any margin of action and is obliged to act. Registration: Whether or not an association obtains legal capacity depends on the administration’s decision to approve or reject the registration application, i.e. to acknowledge its existence. The administration plays an active role in this respect which gives it a margin of discretion and consequently leaves the fate of the association in the hands of the public authorities.
3. Notification: The administration has binding authority regarding reception of the declaration, which cannot be refused except for very limited reasons provided for by law. Should the administration refuse to receive the declaration, whether based on an abuse of its authority or not, the administration must dissolve the association by virtue of a decree issued by the Council of Ministers, since the association already exists as a legal entity. Registration: The administration has binding authority regarding the registration of the association. However, should the administration abuse its powers in this regard, which often occurs under authoritarian regimes, the fate of the association remains in the administration’s hands and the association has no legal existence.

This study also supports the conclusion that some modifications should be introduced to the Lebanese 1909 Law:

1. The competent authority to receive the Declaration, currently the Ministry of Interior, should be changed. Such authority could be transferred to the Notary Public (notaire) or an independent judicial authority such as the Tribunal of First Instance located in each district.
2. All classes of associations should be subject to a unified incorporation system as set forth in the 1909 Law, including youth and sports associations. All laws that impose a prior authorization system for incorporation shall be removed except for certain types of associations that carry out particular activities, such as health or education. The concerned associations shall be subject to the 1909 Law.

The comparative study identifies common deficiencies characterizing both systems. The banning of undeclared associations constitutes a main issue that requires reforms, and therefore we recommend the following measures:

1. Remove the provisions that ban informal associations from the 1909 Law and the Jordanian law. Introduce special provisions in each law that state clearly that undeclared associations are not banned by the law and are permitted under the standards governing the freedom of association. However, such associations will lack legal capacity until such time that they are rendered public, whether by presenting a declaration to the public authorities or by registering before the competent authority.
2. Remove the provisions of the Lebanese Criminal Code that incriminate “secret associations.”

Moreover, this study reflects that the detailed requirements regarding the content of incipient associations’ by-laws as a condition for their incorporation constitutes another deficiency that should be reformed. Therefore, we recommend reducing the requirements on the content of associations’ statutes to basic information:

1. Remove all legal provisions that require the adoption of certain forms of articles of associations, such as those contained in the Lebanese Law on Youth and Sports Associations.
2. Remove the provisions that impose on associations detailed requirements regarding the content of their statutes, notably in the Jordanian Law of 1966 and in the draft law of 2006.

Finally, we recommend that any limitations on the permissible goals of associations be defined explicitly and restrictively. These limitations should be reduced to those provided for in Article 11 of the ECHR: national security or public safety, the prevention of disorder or crime, the protection of health or morals, or the protection of the rights and freedoms of others.

Notes

1 Marc Makary is a lawyer and member of the Beirut Bar. This paper is the product of Mr. Makary’s Senior Research Fellowship with the International Center for Not-for-Profit Law (ICNL) and was researched and written in the summer of 2007.

2 Alexis De Tocqueville, Democracy in America, 1864, t. II, chap. V, p. 182.

3 European Court of Human Rights, Sidiropoulos and Others v. Greece, July 10, 1998, N° 40.

4 In fact, freedom of association in international law figures in numerous fundamental legal instruments related to human rights and public liberties. It is consecrated in Article 20 of the Universal Declaration of Human Rights and Article 22 of the International Covenant on Civil and Political Rights of 1966. On the European level, freedom of association is consecrated in Article 11 of the European Convention of Human Rights. Moreover, this freedom is the subject of an entire declaration, the Convention Concerning Freedom of Associations and Protection of the Right to Organize, adopted on July 9, 1948 by the General Conference of the International Labour Organisation.

5 See, for instance, the Final Declaration of the representatives of Arab Civil Society at the 2006 Forum for the Future.

6 Other incorporation systems exist with regard to the formation of particular types of associations, for example, licensing systems for associations involved in special activities (e.g., health or education).

7 This paper uses the term, “registration,” but “prior authorization” or “licensing” may also be used to describe the active role of the state in the system of incorporation. It is the state’s decision to “register” the association which determines the birth of an association’s legal status. A state with a passive notification system may have laws providing for a posteriori registration procedures (in an association registry, for example) following an association’s delivery of its declaration. Under the notification system, however, this subsequent act of registration has no bearing on the legal status of the association, which is acquired at the moment of the declaration.

8 The current official text of Article 13, in Arabic, mentions the “freedom to form associations,” whereas the original text of this article that was drafted in French mentions “freedom of association.” Despite the restrictive nature of the Arabic translation, Lebanese doctrine recognizes that Article 13 consecrates the general principle of freedom of association.

9 The Lebanese Constitution was adopted in 1926 under the French Mandate and was inspired by French Constitutional Law. For more information about this topic, see Antoine Hokayem, The Genesis of the Lebanese Constitution of 1926, Les Editions Universitaires du Liban, Beirut (1996) (original title: La Genèse de la Constitution Libanaise de 1926),and Marc Makary, “The Lebanese Constitution of May 23 rd, 1926 and the Constitutional Laws of the 3 rd French Republic, A comparative approach,” 2006, Thesis, Library of the Saint Joseph University School of Law and Political Sciences (Original title: La Constitution libanaise du 23 mai 1926 et les lois constitutionnelles de la IIIème République française, Approche comparative).

10 Law N° 369/L.R., dated December 21, 1939.

11 Law N° 16/72, dated December 15, 1972.

12 Articles 86 et seq. of the Code of Labor, dated September 23, 1946, and Decree N° 7993, dated April 2, 1952.

13 Lebanese Constitutional Council, Decisions N° 1/97 and N° 2/97, dated September 12, 1997, related to the Law prorogating the mandates of the Municipal Councils and the Moukhtar (mayors).

14 In Lebanon, the highest source of law is the Constitution; and the next-highest source is international treaties, which take precedence over national law. Nevertheless, following the 1997 Constitutional Council decision, the UDHR of 1948, the International Covenant for Civil and Political Rights (ICCPR) and the International Covenant for Social and Economic Rights) of 1966 (ICCSER) have been accorded the same authority as the provisions of the Constitution because they are referenced in the Preamble of the Constitution, which was incorporated by the Constitutional Council into the text of the Constitution in 1997.

15 The State Council is the highest administrative judicial authority with jurisdiction over the administrative acts executed by public authorities. The Council adjudicates damages when a public authority is deemed liable, fixes the amount of taxes or duties owed in litigation, and announces the final results in disputes concerning elections of municipal-level administrative boards.

16 This draft law was supported by a coalition of civil society organizations, among which figure Partners Jordan and Adala Center.

17 The Ottomans occupied the current Lebanese territory during more than five centuries (from 1516 to 1918), but they granted Lebanon a high degree of autonomy, and did not build institutions in the territory. On the legal level, the main legacy left by the Ottomans to the Lebanese is the Millet system of government, based on communitarianism and, in particular, on internal legal autonomy of the historical religious communities, also called “personal federalism,” as opposed to “geographical federalism.” This internal autonomy is consecrated in two articles of the Lebanese Constitution: Article 9 (the exercise of cult and Personal Status), and Article 10 (the right granted to communities to have their own schools and educational institutions). Moreover, Article 9 is directly copied from Article 11 of the 1876 Ottoman Constitution.

18 Lebanon was founded as a State by French authorities in 1920. It gained its independence from the French Mandate on November 22, 1943.

19 Lebanon was torn by a civil war from 1975 to 1990. The Taëf Agreement put an end to the conflict and instituted a typical power-sharing regime under which the main powers were concentrated in the hands of the Council of Ministers, a collegial body that represented all of the religious communities. The constitutional regime proved to be inefficient, which resulted in the consolidated authority of the Syrian trusteeship in Lebanon from 1990 until 2005, when the Lebanese people protested massively against the Syrian presence after the assassination of the Prime Minister Rafic Hariri. As a result of this popular movement and under intense international pressure, the Syrian army withdrew from the country.

20 Article 1 of the 1909 Law.

21 French Constitutional Council, Decision N° 71-44 DC, July 16, 1971, Freedom of association. This principle was also confirmed by the Lebanese State Council in numerous decisions. See, for instance: State Council, N° 135/2003-2004, November 18, 2003, Association for the Defense of Rights and Liberties v. State, Al Adl, 2004, vol. 2, p. 191.

22 For an extensive analysis of this issue, refer to Ghassan Moukhaiber, Marwan Sakr, Ziad Baroud, Karim Daher, Associations in Lebanon: between the freedom, the law and the practice, Association of Defense of Rights and Liberties (Arabic). This book constitutes one of the most important references concerning associative rights in Lebanon, and is one of the main sources of information in this paper. See also: Ghassan Moukhaiber, “Associative Rights in Lebanon and the Arab countries,” 2004, CEDROMA Conferences, Saint Joseph University, Beirut (French).

23 State Council, N° 135/2003-2004, November 18, 2003, Association for the Defense of Rights and Liberties v. State, op. cit.

24 Administrative Tribunal, Paris, January 25, 1971, Dame de Beauvoir et Leiris, AJ 1971, p. 229; CE, January 25, 1985, Assoc. Les amis de St-Augustin, AJ 1985, p. 228, DA 1985, n. 120.

25 A review of the Official Gazette from January 1, 1992 until December 31, 2006, showed that the Administration issued 42 decrees dissolving associations. These associations had submitted their declarations to the Ministry, which issued the receipts in conformity with the 1909 Law. However, they were dissolved for reasons that arose after the associations first enjoyed legal capacity.

26 See for instance: Court of Cassation, Administrative Section, N° 54, dated May 30, 1952, Lebanese Judicial Review, 1953, p. 817.

27 State Council, November 18, 2003, op. cit.

28 The ADDL was founded in late 1995 by a group of eight lawyers, the majority of whom were members of the “Committee of Human Rights” in the Beirut Bar Association. Their objectives were focused on the protection of human rights and public liberties. The ADDL greatly contributed to the protection of the freedom of association in Lebanon and particularly to defending and explaining the liberal character of the 1909 Law. For further information on this issue, please refer to: Karam Karam, The Civil Movement in Lebanon, 2006, Karthala, Paris, p. 105 et seq.

29 Lebanese Official Gazette, 2006, vol. 26, dated May 25, 2006, p. 2962. Members of the ADDL participated closely in writing the Circular.

30 The current Minister of Interior, (who is a former officer in the General Security Forces) resigned in February 2006 under pressure from public opinion, including popular riots, following revelation of a serious flaw in the security service’s actions. He was temporarily replaced by the Minister of Youth and Sports, who adopted liberal attitudes towards the incorporation of associations and issued the Circular. He returned to his functions as Minister of Interior in December 2006.

31 This controlling attitude appears essentially in the long and burdensome investigation procedures preceding the issuance of the Receipt. As we will see below, however, the practice has been rehabilitated in many respects.

32 Hundreds of Ilm wa Khabar were published in this form, especially in the post-war period that witnessed an intensive development of civil society organizations. See, for instance, Ilm wa Khabar N° 61/AD, dated April 11, , 1998, Official Gazette, vol. 19, dated April 30, 1998, p. 1503. (Text translated and emphasis added by author.)

33 This issue carries particular importance for associations, given the fact that the majority of the foreign institutions (such as the European Union Mediterranean Partnership or the World Bank) that provide funding for Lebanese associations require that grantees have bank accounts.

34 State Council, N° 135/2003-2004, November 18, 2003, Association for the Defense of Rights and Liberties v. State, op. cit.

35 Ibid.

36 Ibid.

37 State Council, Third Section, Decision N° 912, dated May 12, 1967, Syndicate of the Owners of Audit and Accounting Offices, Al Adl, 1967, p. 65.

38 See, for instance, Ilm wa Khabar N° 336/AD dated July 4, 2006, Official Gazette, vol. 35 July 13, 2006, p. 4177. (Translated and emphasis added by author.)

39 The Lebanese Association for Democratic Elections (LADE) is a notorious example of a victim of this illegal practice. The LADE was founded on March 13, 1996, on the eve of the 1996 parliamentary elections. Its main objective was to monitor the elections and watch transparency and conformity to the requirements of the law and democratic principles. The Ministry of Interior refused to receive the declaration of the association and to deliver the Receipt. It tried to ban LADE from operating given the fact that it “carries out political goals and it interferes in the government’s scope of powers,” according to the Ministry. LADE resorted to the tactic also used by ADDL, as described below – notification of the Ministry through a clerk. However, the Ministry refused to acknowledge the lawfulness of the association’s existence. LADE nonetheless has continued its activities publicly through the present day. For further information on this issue, please refer to K. Karam, The Civil Movement in Lebanon, p. 106 et seq,, op. cit.

40 This legal operation was carried out for the first time by ADDL on November 15, 1995 in order to counter the repression of the administration. It is described in Moukhaiber and others, Associations in Lebanon: between the freedom, the law and the practice, Association of Defense of Rights and Liberties, p. 45.

41 Namely, the General Security, the State Security, the Security of Interior, and the Secret Services.

42 See, for example, Ilm wa Khabar N° 17/AD, dated February 15, 2000, Official Gazette, vol. 9 dated February 24, 2000, p. 1036; Ilm wa Khabar N° 156/AD, dated December 30, 2004, Official Gazette, vol. 1, dated January 6, 2005, p. 33. Hundreds of similar publications can be found in the Official Gazette, especially in the post-war period starting in 1990.

43 Ilm wa Khabar N° 61/AD dated April 11, 1998, Official Gazette, vol. 19 dated April 30, 1998, p. 1503.

44 W. Cole Durham, Jr., Brett G. Scharffs, and Michael W. Durham, “The United Sates law of charities: a summary,” in International Charity Law Comparative Seminar, Collection of Papers, Beijing, 2004, p. 82.

45 According to the text of the law, the license should be granted by the High Commissioner of the French Republic, the highest authority in Lebanon under the French Mandate in Syria and Lebanon.

46 This expression was used by Edmond Rabbath, a specialist in the Lebanese legal system, to describe the adoption by the Lebanese constitutional practice of the concept of legislative decrees: norms of a hybrid nature (law and regulation) having the force of a law but issued by executive authorities and not by the Parliament. While there are several examples of these norms in the Lebanese legal system, they are still generally considered to be an anomaly. For further information on this issue, see: E. Rabbath, The Lebanese Constitution, Text and Commentary, 1982, Lebanese University Publications, Beirut.

47 Zvonimir Mataga, “The right to freedom of association under the European convention on the protection of human rights and fundamental freedoms,” Strasbourg, October 2006, p. 14.

48 Sidiropoulos and Others v. Greece, op. cit., N° 38.

49 Ibid., N° 40.

50 State Council, N° 134, March 25, 1970, Judicial Review, 1971, p. 241.

51 Z. Mataga, op. cit., p. 18.

52 The main associations were Partners Jordan and the Adala Center.

53 High Court of Justice, N° 13/2004, March 15, 2004, Adala Center Publications. See also: High Court of Justice, N° 205/1997, March 29, 1998, Adala Center Publications.

54 High Court of Justice, N° 67/2000, July 10, 2000, Judicial Review, vol. 7, January 1, 2001, p. 357. See also: High Court of Justice, N° 138/2000, February 21, 2001, The Bar Review, 2002, p. 113.

55 High Court of Justice, N° 209/1992, January 10, 1993, The Bar Review, 1993, p. 2338.

56 High Court of Justice, N° 13/2004, March 15, 2004, Adala Center Publications. See also: High Court of Justice, N° 205/1997, March 29, 1998, Adala Center Publications.

57 State Council, June 28, 1946, Lebanese Judicial Review, 1947, p. 39.

58 High Court of Justice, N° 370/2001, January 15, 2001, Adala Center Publications.

59 Lucien Crouzil, Freedom of associations ; theoretical and practical comments on the July 1,1901 law, Paris, Bloud, 1907 (original title: La liberté́ d’associations; commentaire théorique et pratique de la loi du 1er juillet 1901).

60 In Lebanon for example, Management Agreements are subject to publication in the Commercial Registry in order to acquire full legal effect. Similarly, the publication of agreements that include real estate rights in the Property Registry is a requirement for the existence of such rights.

61 We have chosen these two countries since they are two democratic countries in which the legal systems, based on civil law traditions, are close to the legal systems adopted in Lebanon and Jordan.

62 State Council, dated October 31,1969, Syndicat de défense des canaux de la Durance, The State Council’s Decisions p. 462; State Council, dated October 21, 1970, Dame de Beauvre, The State Council’s Decisions, p. 600; State Council, dated January 6, 1983, Camillon, The State Council’s Decisions, p. 404.

63 Michael Ernst-Porksen and Til Porksen, “Third Sector Organizations in Germany: Legal Forms and Taxation,” International Charity Law Comparative Seminar, Collection of Papers, Beijing 2004, p. 314.

64 This amount has not been changed since 1909, which renders the fine obsolete.

65 Moukhaiber and others, op. cit., p. 40.

66 State Council, June 28 1946, Lebanese Judicial Review, 1947, p. 39.

67 Lebanese Official Gazette, 1992, vol. 8, dated February 20, 1992, p. 150.

68 Court of Cassation, N° 70 dated July 25, 1963, Assaa v. Turk, Recueil Baz, 1963, p. 281.