Good laws and their implementation are not a sufficient condition for the development of civil and open societies, but they are a necessary one.
Formed by a group of US and European lawyers in 1992, a few years after the Berlin Wall came down, the International Center for Not-for-Profit Law (ICNL) works to promote legal reforms that facilitate and support the development of civil society and the freedom of association. What has it learned from its years of working in Central and Eastern Europe and the countries of the former Soviet Union (henceforth ‘the region’)?
Perhaps the first lesson is the need for modesty about what ‘law reform’ can accomplish. ICNL has been involved in various ways, large and small, with legal development efforts in every country in the region. As an international knowledge-based organization with a focused mission, ICNL can provide important assistance for drafting and implementing laws affecting NGOs, but their ultimate acceptance and effectiveness will depend on local factors that are beyond ICNL’s control.
Recognizing the technical, law-drafting difficulties facing reformers as well as the complicated interactions among social, economic, and political actors is key to being realistic about what changes can be expected. When we talk about law reform for NGOs in the transition countries of the region, we are looking forward to a transforming role for civil society. But optimism about outcomes must be tempered by realism about time frames!
No legal reform will be effective without cooperation between state and society. When it comes to laws affecting NGOs, NGOs will need to work with the government to produce meaningful laws that can be enacted by the parliament and administered by the government. The process of consultative law drafting is extremely important for the growth of civil society. On the other hand, where a significant segment of the NGO population is in opposition to a government it views as repressive, such a consultative
process may be both impossible and undesirable. Consultative processes are proving possible in many countries in the region today, and in those countries ICNL’s efforts to foster cooperative working groups for law reform have produced laws that are generally accepted by both state and society.
In Albania, for example, the Berisha government proposed a law that would have imposed severe restraints on NGO activities, and there was palpable tension between NGOs and the government. ICNL organized a seminar for Albanian representatives in Budapest to discuss ‘regional best practices in NGO law’. It attracted both NGO representatives and the drafters of the restrictive law. As a result of this meeting, the participants agreed to form a joint NGO–government working group, which has now produced one of the most progressive draft laws in the region.
International and regional partners have been important to ICNL in its law reform efforts in the region, but most important by far has been its cooperation with local partners. This includes both its own local staff members in Budapest, Almaty, and Kyiv and the growing network of local lawyers and professionals from other fields in every country in the region who have turned to NGO law as a specialty. In addition, many NGO leaders have been able to give advice about what is and what is not effective in a particular country. They have helped to ensure that initiatives appropriately address local concerns and participated as representatives of the NGO sector in working groups with government.
The need for implementation
Written law is completely ineffective unless it can be successfully implemented. Considerable effort must thus be placed on implementation, both in the drafting process itself (does the proposed law create a system that can be implemented in the country context?) and once the law actually comes into effect. This means that law reform efforts must concentrate on training for government officials and judges, on the one hand, and for NGOs, on the other. It is also important to work with local partners to develop model forms and manuals to promote appropriate application of the law.
An example of how implementation concerns may be addressed comes from Macedonia, where the 1998 Law on Associations and Foundations transferred registration authority from the Ministry of Interior to local courts. Judges were unfamiliar with their new role and were initially reluctant to register NGOs. Local experts therefore embarked on a judicial training programme, and over 2,600 NGOs have now been registered under the new law.
Education and capacity-building
Part of the implementation of law is the training of those who must apply it, whether in the government or in the NGO sector. Different kinds of courses and outreach programmes should be available for lawyers in private practice, for government officials, for NGO leaders, for business leaders (who can provide key financial support for community services), and for ordinary citizens (who can become involved in NGO activities as volunteers). Without this the long-term social change that is necessary to institutionalize a good legal environment for NGOs will never occur. There must be trained lawyers, both in and out of government, who can effectively administer the laws and represent the needs of NGOs. Cooperating with local and regional universities in the development of courses on NGO law is essential to the long-term success of law reform efforts affecting NGOs.
One of the strengths of a regional approach to law reform is that it brings a comparative perspective to bear on national drafting efforts. All law is a product of local conditions and local needs, and a ‘cookie-cutter’ approach to law drafting is never going to work. Yet people learn from exposure to the ideas of others, and they can profit from successful and unsuccessful experiences with legislation that has been enacted and with solutions that have been tried elsewhere. Regional conferences and publications can play a key role here. Guidelines for Laws Affecting Civic Organizations, produced by ICNL in collaboration with the Open Society Institute, has been translated into several regional languages. Other efforts include the EFC’s SEAL Bulletin, which is a print journal offering articles about legal developments affecting NGOs in the region, and ICNL’s own International Journal of Not-for-Profit Law and ‘Online Library and Database’, which provide free electronic access to information and analysis about legal developments affecting NGOs around the world.
Law reform efforts are intense processes that can sometimes be exhausting for all involved. They require a good deal of hard work, considerable research about local conditions and needs, and painstakingly developed technical skills. They also require good will and an awareness that reasonable people may offer different perspectives on what reforms are valuable and appropriate.
An element that may sometimes be missing is the need for reflection on what has been accomplished, on bad as well as good outcomes, on what has and what has not worked.
This is accomplished to some extent through evaluation and review mechanisms that are developed both internally and for our funders (such as USAID, the CS Mott Foundation, and the Open Society Institute). However, I cannot stress enough the need for more considered reflection, particularly about process failures. Like Stephen Holmes, who recently wrote in the East European Constitutional Review of the need for a ‘Legal Reform Strategy Center’ which would be based at a university, I see the need for greater analysis of strategies for effective reform of NGO law. Particularly constructive is the emerging academic attention to the whole concept of a ‘civil society’ and how it comes into being and is sustained (for example, Tom Carothers’ thought-provoking essay recently published in Foreign Policy magazine).
1 ICNL now has 25 lawyers worldwide, working full and part-time, with offices in Budapest, Almaty and Kyiv.
Karla W Simon is Executive Vice President of the International Center for Not-for-Profit Law and Professor of Law at the Catholic University of America. She can be contacted via email at firstname.lastname@example.org