Civil society and the law

Richard Fries[1]

While there is much debate about how to define civil society, one thing is agreed: it is not defined by law. It embraces free action and interaction; law constrains action, controls it. At first sight, therefore, law is inimical to the free play of civil society, at best a necessary evil setting a framework within which it operates.

In fact an enabling legal environment is necessary for civil society to be fully effective. It facilitates civil society and protects it. But only if it enables, and supports. The bad name law has in many parts of civil society reflects the experience that it impedes, controls, even suppresses.

This contrast can be graphically illustrated by the experience of Kosovo. In the years before the war the Serbian state used the law to suppress Albanian civil society – which resorted to self-organization outside state law. Education, for example, was provided by a parallel Albanian system. But civil society in Kosovo suffered from the lack of an enabling legal environment.

The roles of law

Law fulfils a range of functions in support of civil society. These need to be distinguished not just theoretically but in application. It is the failure, wilfully or unconsciously, to make the necessary distinctions which leads to the inhibition, distortion or suppression of civil society by the law. There are four broad functions of law for civil society:

· the legal underpinning of the rights of civil society;

· providing legal forms which facilitate effective collective action;

· providing for proper accountability of civil society (without infringing its freedom);

· according privilege to civil society organizations (CSOs) serving public interest purposes.

This article seeks to present these strands and show how they support civil society when properly applied and distinguished, and to show how the failure to distinguish them inhibits and undermines civil society.

Upholding the freedoms

At the most basic level, law should express and defend the right to civil society itself; the right, that is, of individuals to come together for common purposes. The freedoms upheld in the UN Universal Declaration on Human Rights, especially the right to freedom of association, are fundamental. National constitutions generally give expression to this right. But it is not – as the upsurge of terrorism and countermeasures against it, especially since 9/11, highlights – an absolute right. How the law strikes a balance between individual rights and collective security is critical. Thus Article 17 of the Constitution of Pakistan of 1973 says: ‘Every citizen shall have the right to form associations or unions subject to any reasonable restrictions imposed by law in the interests of sovereignty or integrity of Pakistan, public order or morality.’ The European Convention on Human Rights is even clearer:
‘no restrictions shall be placed on the exercise of the rights of freedom of… association… other than such as are prescribed by law and are necessary in a democratic society in the interests 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 freedoms of others.’

One could not have a more explicit recognition of the ‘dark side’ of civil society. The US Patriot Act and action against terrorism makes full use of this exception. The fact that the European Court of Human Rights has been very restrictive in allowing exceptions to the right to freedom of association highlights how important it is that the institutions that apply civil society law should uphold the rights of responsible civil society.

Institutional forms for civil society

Civil society can achieve remarkable things without legal organization. Citizens’ associations called tanzeems provide many social services in areas of squatters’ housing in Pakistan, but have no formal recognition. But they flourish despite, not because of, their informal status. Associations without institutional identity – ‘legal personality’ – are inherently fluid. While this may be a virtue at the level of communities, it creates instability and insecurity at a wider level. Engaging with organized society, which means being able to enter into legal and contractual relationships, is facilitated by the creation of legal entities. The ways in which different societies meet this need vary greatly. Some, like the Swiss Civil Code, make it admirably simple, determined by the action of those concerned. But a court or government based registration process is the most common basis for organized civil society.

Registration has great advantages. It provides clarity and openness, enabling registered organizations to have security. But the process of registration exposes civil society to the exercise of discretion by the registration authority – necessarily so given the conditional nature of the right of association, as discussed in the previous section. This is where the confusion of purposes highlighted above may damage civil society. All too many codes import a judgemental element into what ought to be a basic right. Thus registration in China requires a social organization to have the authorization of a sponsoring department or authority in order to qualify for registration by the Ministry of Civil Affairs. Until the reforms of the Non-Profit Organizations Law of 1998, registration as an NPO in Japan depended on the consent of the government department concerned.

Two case studies: Kosovo and Afghanistan

Civil society is particularly important for countries under pressure, whether it be through corruption and absence of efficient government or through oppression. Recognizing this, and providing the environment in which civil society can contribute to the rebuilding of an open society, is an important part of post-conflict reconstruction, as the examples of Kosovo and Afghanistan highlight.

As noted above, Albanian civil society played an important role in Kosovo, but prior to the establishment of the UNMIK provisional governing authority CSOs operated in a legal vacuum, without clear legal rights. This posed the sort of practical problems referred to in the previous section. UNMIK regulations – among the most progressive established anywhere – instituted a simple registration process which strictly limited the authority of registration officials to deny registration. In consequence there has been an upsurge in Kosovan NGOs to over 1,700 registered now.

The position of civil society in Afghanistan was at least as difficult. Taliban-era NGO law was disabling. Registration criteria were unclear and open to inappropriate discretion without redress. The need for reform to enable Afghan civil society to play an effective part in reconstruction was recognized and the registration process handled with remarkable speed and professionalism.

The roles of civil society

The basic role of CSOs is customarily labelled ‘service delivery’. Increasingly, governments are recognizing the value of the citizen’s contribution to meeting society’s needs and interests. The temptation to equate people’s wishes with government programmes, and base approval on that identity, was highlighted in the section above on registration. Civil society is not truly independent unless it can set the agenda. CSOs must have not only proper discretion to determine what they are going to do, but also the freedom to express themselves publicly. The contribution of the voice of civil society to public discussion – their ‘advocacy’ role – is as important as service delivery, but of course more challenging to the public authorities. The legal framework needs therefore to safeguard this right; and the application of the registration and regulatory processes must respect it.

The provision of independent resources for organized civil society is another crucial guarantor of its freedom. Funding by public authorities is an increasingly important source of funding for civil society as the role of public-voluntary partnership programmes is recognized. All the more important, therefore, is the counterbalance of other sources of funding, and therefore of independent foundations with a secure legal status.

Organized civil society is often called the not-for-profit sector. This is misleading since enterprise is an important form of civil society activity. The line between civil society and the market sectors is the non-distribution requirement of the former: surpluses must be devoted to the organization’s purposes, not paid out to directors. Inappropriate restraints on enterprise activity have impeded civil society in some places, for example until recently in Ukraine. An enabling legal environment provides for an appropriate civil society company form.

Public benefit and privileged status

Much of civil society is essentially private, organized by and for the interests of the individuals concerned. The richness and indeed the well-being of society is enhanced by a flourishing civil society. But this is different from the direct contribution made by that part of organized civil society which is specifically concerned with meeting the public interest. Organizations which seek to relieve poverty, provide health and social care, tackle environmental issues and so on are part of free societies. An enabling environment supports and encourages them, in particular through fiscal privileges.

In most countries the ‘public benefit’ test is a matter of tax law. This has the advantage of separating the status of CSO, gained through legal registration process for example, from the additional test of contribution to the public interest. As indicated above, the tests are all too often confused, in that government departments, naturally from the perspective of government policies, make the registration decision. The tax basis for the public benefit decision carries its own risk, in that the fundamental task of the tax authorities is collecting revenue for governments to spend rather than supporting civil society. England is unusual in having a separate government department, the Charity Commission, responsible for the determination.[2] The ‘common law’ tradition of charity puts emphasis on a separate sphere of public benefit civil society.

Reporting and regulation

The accountability of civil society is a sensitive issue. It conflicts with the independence of civil society but some guarantee of integrity is necessary for its credibility. Accountability requirements are, however, fraught with difficulty since they provide a means for improper control over civil society.

Registration is of diminishing public value unless it supports a process of continuing validity. Annual reporting of the basic facts on which registration is based, in particular the organization’s purpose and place of administration, is a necessary basis for credible registration. Openness about activities and finances is fundamental to ‘transparency’, much lauded as a guarantor of credibility – but exposing civil society to the risk of interference if the reporting authorities have inappropriate powers. While accountability is a legitimate part of privileges for public benefit status, the attractions of a wider self-regulation by civil society to provide the balance between credibility and independence are obvious. The officially recognized role of Philippine NGOs in regulation is a valuable model.

Reflections on experience

The collapse of Communism opened up the opportunity for civil society to develop. The reform of the legal basis in post-Communist societies has led to the creation in many countries in Central and Eastern Europe of codes of law which the Johns Hopkins study describes as among the best in the world. In many countries this is supporting a vibrant development of civil society and allowing it to be both partner and conscience of government.

Elsewhere the need to encourage civil society if its contribution to society is to be maximized is increasingly recognized. The need to reform the legal and institutional base for civil society is part of this, reflected in the Enabling Environment Initiative in Pakistan and in the development of the role played by NGOs in the Philippines. Reform is not only triggered by upheavals like the collapse of Communism. Indeed, many Western jurisdictions are engaging in a process of civil society law development. The sharing of experience (not, note, the crude export of one model to other jurisdictions) is a valuable part of developing civil society for the role it can play in the complexities of the 21st century.

But is the Western civil society notion at all relevant to non-Western cultures? The answer must be affirmative but qualified. Freedom as reflected in the UN Declaration is, as its title asserts, a universal principle. As an expression of that freedom, civil society is likewise universal, however much the form it takes reflects each individual society and culture.

At the level of organized civil society likewise, the idea is universal, for all the differences of form. Thus Muslim civil society has, for example in the Waqf model, institutions for which the law must cater. As the handbooks ICNL prepared for the World Bank and OSI show, there are underlying principles for civil society law. The importance of civil society in Afghanistan, for example, is clear. For much of the 1990s it was only NGOs that provided any kind of social services, and it is as true there as elsewhere that NGOs are often better able to respond to community needs with flexibility and imagination than government. Of course, this means encouraging the development of indigenous civil society, reflecting the culture of the country concerned, no doubt in partnership with rather than replacing international NGOs.

In terms of law, and indeed even the notion of the nation state, the South Pacific is far removed from the concepts which European influence has brought. The notion of civil society is certainly relevant; its premise of freedom is fundamental. Reform in this region is important, and the need for legal and institutional security is relevant there as elsewhere. But the form the law and institutions take must reflect the basis of customary, or traditional, law on which their societies are based.

1 This article draws on the worldwide experience of the International Center for Not-for-profit Law (ICNL – http://www.icnl.org), for whose contributions I am very grateful.

2 Reform proposals envisage reinforcing this by making it a public body separate from government.

Richard Fries is Chair of the Board of ICNL and visiting fellow at the Centre for Civil Society at the London School of Economics. He can be contacted at R.J.Fries@lse.ac.uk


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