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Unconstitutional Presidential Decrees Seek to Control Civil Society Organisations

Monday, 18 February 2013 14:53 Ref.: 24/2013
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On 15 December 2012, President Mahmoud Abbas signed the Presidential Decree on Establishment of the Civil Society Organisation Affairs Commission (2012 Decree), the latest in a serious of persistent legislative interventions targeting civil society organisations (CSOs) in Palestine. This follows the issuing in April 2011 of the Decree Law on Amendment of the Law on Charitable Associations and Civil Society Organisations (2011 Decree). Both decrees are part of an incremental policy approach that is being implemented by the Palestinian Authority (PA) to undermine and curb the freedom of CSOs, both local and international. As a Palestinian human rights organisation, Al-Haq condemns both decrees as they violate provisions of the Palestinian Basic Law and Law on Charitable Associations and Civil Society Organisations as well as the right to assembly, an international human right enshrined in both the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights. In addition, they represent a clear attempt by the PA to exert an increased level of control over the activities of civil society in Palestine.  

 

According to the 2012 Decree, the new Commission will be tasked with coordinating and regulating functions, including planning, decision making and the selection of partners, between all Palestinian and foreign CSOs as well as various government bodies. As such, the CSO Affairs Commission acts like a custodian and coordinator. In reality, CSOs should be independent and only subject to relevant board decisions while being free to plan their activities according to the needs of their stakeholders.

 

The 2011 Decree allows unconstitutional and illegal seizures by transferring dissolved CSO property to the PA Public Treasury account. This is not the first time the PA has taken unwarranted action against CSOs for which it lacks proper legal authority. In 2007 Al-Haq denounced the Ministry of the Interior’s politically motivated decision to terminate 103 CSOs.

 

These enactments are part of a process that allows the Minister of Interior to exercise a comprehensive control over CSOs in violation of both the spirit and the letter of the constitutional rights of Palestinians. The following examples outline a number of the violations involved in the two decrees;

  •  Article 2 of the 2012 Decree stipulates that the “Civil Society Organisation Affairs Commission shall be established and shall enjoy financial and administrative independence. It shall report to the President of the Palestinian National Authority.” However, Article 69 of the Palestinian Basic Law expressly provides the Council of Ministers with the power to establish agencies, institutions, authorities and similar administrative units belonging to the executive apparatus of the Government. In addition to supervising and setting their capacities, the Council of Ministers is charged with appointing heads of these agencies. Establishment of the CSO Affairs Commission by the President infringes on the Council of Ministers’ exclusive powers and capacities as provided by the Basic Law.
  •  The 2012 Decree infringes on Palestinians’ constitutional right to freedom of assembly. Article 26 of the Basic Law prescribes that “Palestinians shall have the right to participate in political life, both individually and in groups […]. They shall have the right to form and establish unions, associations, societies, clubs and popular institutions in accordance with the law.” Constitutional judicial practice considers the establishment of CSOs as a manifestation of the freedom of assembly. To create and design functions for an illegal body, such as the CSO Commission, which exercises guardianship over CSOs, is contradictory to the authentic constitutional right to assembly. Regardless of conformity with applicable legal norms and provisions, it also infringes on CSO members’ freedom to operate and network with persons whom they deem fit.
  •  The 2011 Decree similarly violates Palestinian Basic Law and the Law on Charitable Associations and Civil Society Organisations. Article 43 of the Basic Law prescribes three constitutional conditions which must be fulfilled to ensure valid enforcement of any decree law. Most notably, decrees that have the power of law can only be issued “in cases of necessity that cannot be delayed.” Constitutionally, this is interpreted as a grave danger that exceeds ordinary risks and poses a serious threat to national unity. This type of danger prevents state institutions from performing their constitutional role, portending a whole or partial collapse of the state interests. Such imminent and grave danger cannot be confronted through ordinary legal procedures in force and therefore, to prevent it, the President may exercise an “exceptional” intervention in the legislative process by means of decisions that have the power of law. Given that neither decree meets the constitutional requirement of association with pre-established imminent and grave danger, the President does not have the power to exercise exceptional interventions in the legislative process.
  •  The illegal seizure of the property of dissolved CSOs to the PA Public Treasury account is a violation of Article 21(4) of the Palestinian Basic Law, which provides that “[c]onfiscation shall be in accordance with a judicial ruling.” To seize dissolved CSOs’ movable and immovable properties and transfer them to the PA Public Treasury account also constitutes an encroachment on the provisions of Article 41 of the Law on Charitable Associations and Civil Society Organisations, which states “[i]t shall not be allowable to seize the properties of any association or organisation, or close it, or conduct a search in its main and branch offices, except after a decision is issued by a competent judicial body.” Additionally, the transfer to the PA Public Treasury of CSO property violates Article 39 of the law on Charitable Associations and Civil Society Organisation, which provided that CSO bylaws should regulate disposition of CSO property.
  •  The 2011 and 2012 decrees both circumvent the principles of legitimacy and rule of law. Palestinian Basic Law Article 6 provides: “The principle of the rule of law shall be the basis of government in Palestine. All governmental powers, agencies, institutions and individuals shall be subject to the law.” Article 38 supplements this general principle, adding that the “President of the National Authority shall exercise his executive duties as specified in this law.” The Basic Law clearly emphasises that the Palestinian executive branch must respect and comply with provisions of the law, which transcend executive decisions, functions and conduct. The adoption of both the 2011 and 2012 decrees is in violation of the limitations on the Executive Authority’s power.

 Al-Haq reiterates the important role played by CSOs in defending rights, freedoms and human dignity across the Palestinian territory. CSOs play a pivotal function as a major partner in promoting a nationwide development process and fulfilling the Palestinian people’s expectations, aspirations and national goals. In addition, CSOs persistently seek to consolidate democratic values and disseminate a culture of human rights, transparency and accountability. Al-Haq demands that all decrees and decisions that restrict the freedom of CSO activity be immediately revoked.

 

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