Controlling Civil Society
Adrian Grima - 29/01/2007
The Sunday paper Malta Today described 2006 as “the year of the rise of civil society.” Common people and activists were “clearly angry,” it wrote, “at the political class for failing to represent the diverse, at times conflicting, grassroots interests.”(1)
It was also the year in which Maltese civil society finally got a draft law to regulate the non-governmental sector after years of silence and empty promises.
But the draft law, after what was meant to be a consultation period triggered by a white paper, was hardly what the NGOs themselves had been lobbying for. Many, perhaps, were even surprised by the paternalistic, almost Big Brother spirit of the draft which is now well on its way to becoming an unpopular Law, one that is gives you an idea of the attitude of the country’s often patriarchal institutions towards civil society.
“Marching away from their elected representatives who have consistently let them down,” wrote Malta Today, “a myriad of groups and organizations took to the streets over the last 12 months to voice their own concerns and to put their priorities on the national agenda.” From “heritage groups to countryside ramblers, from abortion scaremongers to foaming shotgun-yielding hunters, animal rights activists and misguided neo-fascists, the streets have been turned into the new parliament wherever the traditional bipartisan democracy has failed.”(2)
When the “Yes” campaign for the referendum on whether Malta should join the EU was in full swing, “civil society” was a happy thing to say because many non-governmental, not necessarily not-for-profit organizations, were in favour. “Civil society” was this and “civil society” was that. But when, after accession, non-governmental, mainly voluntary organizations working in the fields of environmental protection and social justice started to demand that state institutions respect the more positive (and often demanding) rules agreed by EU member states, like environmental standards and access to information, civil society organizations became small, irrelevant, uniformed, immature, and arrogant all over again. It sounded all so familiar in a country with patriarchal institutions pitting themselves against a thriving non-governmental sector and growing concern among common people about their rights and the rights of future generations.
The Operative Word is “Positive”
The draft of the Voluntary Organizations Act published in 2006 epitomizes this clash.
In its communication on Promoting the Role of Voluntary Organizations and Foundations in Europe (1997), the European Commission says that “The importance of having clear, positive legal and fiscal frameworks for voluntary organizations and foundations to work in cannot be underestimated.” The operative word is, of course, “positive.”
The working group set up by a number of Maltese NGOs in January 2004 to lobby for the publication of a white paper on NGO legislation and make recommendations after years of promises and doodling by a succession of governments, declared in no uncertain terms that the government had ignored many of the recommendations originally made the working group and did not address the major concerns expressed during consultation on the white paper and the draft bill.
The Maltese NGO Legislation Working Group complained that in the proposed law, the definition of “voluntary organization” is “at the same time too encompassing and missing an important element: independence.” When the Working Group met the Minister in charge of the NGO law in July 2004, she had voiced concern about the definition of "voluntary" in the Memorandum presented by the NGOs. The Working Group pointed out that the definition was taken from the Commonwealth document called NGOs: Guidelines for Good Policy and Practice. “Voluntary” meant that NGOs are formed voluntarily and that there is an element of voluntary participation in the organization. “The word ‘voluntary’ distinguishes NGOs operating in democratic societies from government - i.e. statutory - agencies.” Two years later it seems that the Minister wasn’t listening, or refused to listen: the draft suggests that government agencies working in the social field as “voluntary” too.
The NGOs also noted that “the power vested in one individual,” an all-powerful public official appointed by the Minister as Commissioner, “over all organizations, whether enrolled or registered or not, to control, to monitor, or even eliminate, their activities or administrators is excessive.” Not surprisingly, the President of the International Center for Not-for Profit Law, Douglas Rutzen, described the draft Voluntary Organizations Act of Malta as one of the most regulatory, prescriptive laws he has seen in the EU. He also considered it over-regulatory for civil society, under-regulatory for government and tellingly summed up by the italicized preamble sentence: “An Act to regulate voluntary organizations and their administration.”(3)
A good alternative to an all-powerful Commissioner chosen by the Minister would be to have an independent Commission or Commissioner appointed by Parliament, like the Ombudsman. The first Ombudsman of the Republic of Malta has had his fair share of clashes with the Government because he exercised his duty to criticize where criticism was due, and that, in itself, is a good indication of the need for the NGO Commissioner (or Commission) to be as free of government control as possible.
The NGOs concluded that in the draft law “there are too few benefits to relieve the regulatory burden, especially on the very small organizations.”(4) Douglas Rutzen himself believes that the bill is “much too intricate and burdensome” for Maltese civil society and claimed that “this legislation is likely to hinder development of civil society.” The working group noted that it was hoping “to see a Law that encourages voluntary groups and associations to fulfil their vital role in Malta’s society and eventually to create a sector that is able to self-regulate its activities. It is disappointing to see a Law that aims simply to control them.”(5)
The president of the dynamic Ramblers Association of Malta, Lino Bugeja, has stated in public that, as things stand, his organization has been given legal advice not to register as a voluntary organization. Because “while purporting to safeguard and enhance such independence, the intended legislation, in its present form, unless drastically amended, will only serve to subject NGOs to stifling bureaucratic and paternalistic controls, which, in the wrong hands, can nullify the independence and freedom of action NGOs enjoy at present.” In an article in The Times and in an interview that appeared in the Malta Today,(6) Mr. Bugeja explains that “an NGO can still acquire legal status and become a ‘legal person’ by registering its organization by public deed, as opposed to registration with the state under the new law,” and that “such a legally-registered (not state-registered) NGO can effectively apply for and obtain EU funds.”(7)
When he spoke at a public seminar in Malta on “The Challenges of NGO Legislation”
organized by the NGO Working Group in March 2005 Douglas Rutzen, had said that civil society organizations play a vital role in society because they contribute to political reform, social development, employment generation and many other aspects of a society’s quality of life. Legislation is meant to support not hinder them. Mr. Rutzen described legislation regulating civil society organizations as a web: a set of interconnecting laws of different types and amount of detail that govern and support organizations at different levels. Association or framework law, which covers forms of organizations, registration and basic rules, is the first layer of legislation. These laws typically contain very little detail about benefits or accountability requirements.
The second layer of legislation deals with Public Benefit status. According to Douglas Rutzen, the first issue is: what constitutes a public benefit activity? Ideally, the list of activities should be broad and easy to amend. A second set of issues relates to the requirements for acquiring that status: for governance, activities, distribution of assets, and documentation. Of prime importance is the issue of who decides whether an organization qualifies. Whatever the model chosen (e.g. commission, ministry), the process should be “as apolitical, fair and as transparent as possible.”(8)
Douglas Rutzen said that non-profit organizations provide 4% of total employment in Europe, 8.3% in Ireland; 1 of 7 new jobs in France are created by nonprofits and 1 of 8 new jobs in Germany; expenditures over 1.25 billion euros. Therefore it is not surprising that more often than not, it is finance ministers who initiate the process of instituting legal frameworks governing and enabling civil society organizations. The NGO Sector and Government
NGOs normally receive support and encouragement for their public service from governments and supra-national bodies. Indeed, EU institutions involve NGOs at all levels of policy-making and delivery. But in contrast, as the Malta-based American activist Kay Gretchen notes in a paper published in September 2005 before the publication of the draft bill,(9) “the Government of Malta has made disappointing progress in developing a legal framework, appears not to value the voluntary sector’s expertise and hinders voluntary organizations’ access to valuable information due to its means of presentation and dissemination. In addition, it has designated a number of government bodies, primarily in the social sector, as ‘non-governmental organizations.’”
The aim of the Law should not be to control the NGO sector, so that environmentalists and social and cultural activists are kept in check by the powers that be. The aim of the law should be to recognize and regulate the functioning of the sector, not to place a Big Brother that watches over the NGOs and tampers with their independence, which is their, and their country’s lifeblood.
Because of the patriarchal nature of our institutions, the dynamic NGO sector, which looks the issues in the face and refuses to toe the “party” line, is even more important than in other countries where the institutions respect the activist and the artist (even if they may not agree with them) and do not challenge their independence and freedom of expression. Let’s face it: we live in a country in which some powers that be feel they have the almost “divine” right to tell NGO what they have to say. There have been many examples over the years and given the spirit of the Voluntary Organizations Act, with the unacceptable discretionary powers given to a person appointed by and answerable to the government this paternalistic attitude seems to be alive and kicking.
When the Minister met the NGO legislation working group she suggested that she was at best uneasy with the idea of NGOs having access to the media. In the section on “Protecting Fundamental Freedoms” of their original Memorandum, the NGOs had recommended (based on international standards) that “NPOs [not-for-profit organizations] should have access to media outlets to publicize their activities, including state-owned media, where such exist, with tax benefits for media organizations that provide 'pro bono' publicity for NPOs.” The NGOs had pointed out that this issue “is particularly salient in Malta, as media access for NGOs has been very much on an ad hoc basis so far, in contrast to the formal recognition of access for NGOs proposed in the Checklist.” (my emphasis)
The NGO Legislation Working Group has called for the removal of whole articles in the draft law but now that civil society is once again only civil society and no longer an ally in a national referendum, the powers that be refuse to listen. The language in the published reaction of the Working Gorup is controlled but its evaluation is nonetheless damning. With reference to “Article 32, the power of the Minister to make regulations,” the Working Group states unequivocably that “such sweeping powers” of the Minister “over the activities of all organizations, including those not enrolled in terms of the act [...] that it nullifies any idea of the independence of civil society and voluntary organizations.” Big Brother would be impressed.
More Effective Democratic Institutions
“The voluntary sector is the heart of civil society. Regardless of size, form or purpose, voluntary organizations provide independent views of politics, culture, leisure and all activities of life in which humans engage. They also provide the important means for individuals to influence their own lives and the conditions of society at large.” Taking her lead from R. D. Putnam (Making Democracy Work: Civic Traditions in Modern Italy, 1993), Kay Gretchen observes that “societies with with a history of forming associations have a stronger civic culture, the trust from which tends to result in more effective democratic institutions and healthier economies.”
Is the government of Malta listening?
1)- “The year of civil society,” Malta Today (24 December 2006).
2)- “The year of civil society,” Malta Today (24 December 2006).
3)- “Major concerns expressed by the NGO law working group during consultation are not addressed in the revised voluntary organisations draft bill,” Non-Governmental Organisation Legislation Working Group (Press Release), 17th November 2006. http://www.mrc.org.mt/page.asp?n=newsdetails&i=8780
4)- “Major concerns expressed by the NGO law working group.”
5)- “Major concerns expressed by the NGO law working group.”
6)- James Debono, “NGOs slam voluntary organisations bill as Big Brother paternalism,” Malta Today, January 14, 2007.
7)- Lino Bugeja, “Independence: The lifeblood of NGOs,” The Times (Malta, Friday, December 8, 2006).
9)- Kay Gretchen, “Voluntary Organisations: Vital Contributors,” in Peter Xuereb, ed. Working for an Inclusive Society, (Malta: University of Malta, European Documentation and Research Centre, Jean Monnet European Centre of Excellence, 15 September 2005). http://aei.pitt.edu/6040/01/36.pdf.