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Freedom of Association in PALESTINE |
Summary Report
| Political, democratic and Human Rights specific contexts |
| Legislation |
Throughout their history, Palestinian associations have had a very unique experience compared to their peers in other parts of the world. Their experience has been different in terms of their inception and the environment they operate in, let alone the fact that they came to existence before a state in itself.
Civil action in Palestine in general and the formation of associations in particular have passed through two basic stages, separated by the establishment of the Palestinian National Authority (PNA).
A constant issue that has structured the life of associations has been establishing of the State of Israel and in particular the Occupation of the West Bank, Gaza Strip and East Jerusalem in 1967.
- First Stage: Pre-Palestinian National Authority (PNA)
In this first stage there were multiple authorities with jurisdiction over civil action in the West Bank and Gaza. The 1909 Ottoman Associations Law was the basis for the work of these organizations in Palestine placing little restriction on the registration procedures. However, the Ottoman authorities' fear of the growing phenomenon of Arab nationalism in the Arab world led them to place several strangling restrictions on this right, especially regarding political and social associations.
Also under British mandate period in the emergency laws imposed in 1945, several restrictions were placed on these social associations.
This situation changed after the 1948 war and the subjection of the West Bank and the Gaza Strip to two different legal administrations. In Gaza, the Ottoman Associations Law remained in effect without any changes by the Egyptian administration, while the Jordanian Charitable Societies Law No. 33 of 1966 was applied in the West Bank.
In the aftermath of the Israeli occupation of the West Bank and the Gaza Strip in 1967, the Israeli military ruler of the Gaza Strip and North Sinai issued military decree No. 686 simultaneously with military decree No. 89 in 1970. These decrees amended the Ottoman Associations Law in the West Bank, and mandated the officer in charge of interior affairs in the Israeli military administration to impose strict surveillance on the work of associations, a situation that drove some of them to register as not-for-profit commercial companies.
- Second Stage: Post- Palestinian National Authority Establishment
The PNA was established in 1994 as the first Palestinian national authority. in the context of a highly efficient civil society sector. Palestinian civil organizations played a vital role in terms of provision of services over many decades prior to the establishment of the PNA. When the PNA was established, these organizations were responsible for 60% of primary health care, 49% of secondary and tertiary health care, and 100% of primary care services.1[1]
The number of associations registered in the West Bank and the Gaza Strip stood at 1250 in 2001. About 675 associations operated in the West Bank, 31.1% of which were registered after the establishment of the PNA. In Gaza, the number of associations registered with the Ministry of the Interior stood at 575, 79 of which were licensed before the PNA was established.2[2]
According to the same source3[3], out of the total number of associations registered in the West Bank and Gaza for the same period, charities constituted 40.4%, youth and sports organizations 30.4%, cultural centers 10.2%, relief organizations 4.8%, development organizations 4.9%, research centers 3.5%, training and rehabilitation. The remaining 2.8% were human rights organizations.4[4]
The Palestinian Legislative Council (PLC) endorsed the Palestinian Charitable Associations and Community Organizations Law in 2000 and the legislation was published in the Official Gazette (Al Waqae Al Filistiniya) in the same year. In 2003, the executive regulation of the law was issued following Cabinet decision No. 9 of 2003. Although the legislation has positive aspects, the executive power's insisted that the Ministry of the Interior be the body in charge of the registration of civil organizations and entities, rejecting outright demands from civil society, which raised fears of security monitoring and police interference in the work of civil organizations.
In the meantime the Israeli occupation, and Israeli annexation attempts of the West Bank, incursions into Palestinian Territories, the West Bank, and Gaza since the onset of the al-Aqsa Intifada, has caused a constant deterioration of the human rights situation and of Palestinian NGOs’ working conditions – thereby seriously compromising the efforts and possibilities to work of associations.
A - International instruments: The PNA is not entitled to sign agreements, so there are no agreements ratified by it. The Israeli ratification of the International Covenant on Civil and Political Rights does not obligate the PNA. Hence, there is no law that supersedes national legislation that obligates the PNA to international agreements.
B - Constitutional provisions: The right to form associations is a constitutional right stipulated in Article 26 of the Palestinian Basic Law which emphasizes that “Palestinians have the right to participate in the political life as individuals and groups. Particularly, they enjoy the following rights:
1. Establishing political parties and joining them in accordance with the law.
2. Establishing trade unions, associations, leagues, clubs, and civil institutions in accordance with the law.
3. Choosing representatives from among them through voting and/or nomination for election in public elections in accordance with the law.
4. Holding positions and public offices based on equal opportunity.
5. Holding private meetings without the presence of police personnel, and holding public meetings, marches, assemblies in accordance to the law.
Palestinian law of charity associations and civil institutions number 1 of 2000
D – Decrees
Executive regulations of the law under council of ministers resolution number 9 of 2003.
Recently, after the Hamas coup in Gaza, President Abbas issued a decree on 20/6/2007 for registration of civil associations and institutions, which requires all associations to renew their registration. The decree was considered to be targeting associations that belong to the Hamas Movement in the West Bank and Gaza Strip. It was criticized by many rights organizations and trade unions.
E – What is the relationship between international law and the national law?
The basic law of the PNA (it is called a constitution figuratively) does not deal with the relationship between the international law and the national law, and which law supersedes the other. This stems from the fact that the PNA is not a state and does not enjoy the right to sign international agreements. However, article 10 of the basic law stipulates that the PNA seeks to join international and regional agreements and covenants related to human rights.
Formation and Incorporation
1. Does the system allow for non-declared or unincorporated associations? (Are there penalties for non-declaring? Dissolution? Imprisonment? Etc.)
Palestinian law does not allow undeclared associations. In this case the association is considered illegal and its members are punishable under penal law by imprisonment for a period between three to seven years, or a fine in accordance with the law.
2. Is the registration system based on licensing or simple information/notification?
The law emphasizes the right to form associations as a basic principle for civil bodies without the need for a license. But in practice, licensing is considered a prerequisite in registration procedures since associations are not allowed to conduct any activity before obtaining the approval of the Minister of Interior within a period that does not exceed two months after submission of application.
By including conditions for registration in laws and regulations, the Palestinian law adopted a compromise stance between the Ottoman Association Law, which did not require licensing aside from declaration, and the Jordanian Association Law which required licensing.
However, this compromise stance has been abused to justify hampering the freedom of civil society work in Palestine. The executive authority considers issuing a license to be a gift rather than a fulfillment of the requirement of the law. Cases of such practices have happened already.
The case Association for Palestinian Workers Aid is significant. The founders applied to the interior ministry to register their association , but have not received any response from the ministry. In 1/4/2007, the founders sent a legal note to the ministry, but to no avail. In 12/5/2004, they resorted to the Palestinian supreme court, which issued a judgment after two years, in 16/4/2006, to force the Ministry of the Interior to issue a resolution to register the Association for Palestinian Workers Aid and to consider it licensed by law. The association then received the registration. (see press release issued by Al-Mezan Center for Human Rights number 7/2006, 19/6/2006).
3. What are the basis upon which registration can be rejected? (e.g. race, security, religion, politics)
The law only requires submitting a written application for the establishment of a civic association, and that the application fulfills all the conditions in the law. The acceptance of the application by the competent authority does not depend on the discretion of that authority, but rather on the compliance of the application to the legal conditions, including registering the association and declaring it. If two months pass without a response from the authorities after submitting the application, the association will be considered registered in accordance with the law. If the minister issues a decision to deny registration, the decision should be justified. The applicants have the right to appeal the decision within thirty days after receiving the rejection decision in writing.
The cases of justified rejection to register an association are rare. However, there is usually a delay in responding by the ministry for security and political reasons. Delay in responding under the Fatah government is usually directed toward associations whose applicants belong to Hamas, or other groups not affiliated with the PNA.
4. How easy or difficult is the registration: (e.g. time, cost, number of incorporators)
The cost of establishing an association is not high; it amounts to 20 Jordanian dinars (almost $30). This amount does not constitute any hindrance to establishing an association. The Palestinian law prescribes that the number of founders be a minimum of seven persons. This requirement increases the difficulty of forming an association.
In terms of regulations, the executive regulations define the practical steps that must be followed to apply for registration and the required contents of the application submitted to the competent directorate in the Ministry of Interior. Article 11 of the executive regulations stipulates that the application should be submitted by at least three of the founders to the competent directorate. In addition, the regulations require three other attachments to be enclosed with the application, including a written proxy from all the founders authorizing the three applicants to sign on the application. Registration is not difficult after compiling all required documents, but it is worth noting that the quantity of documents is very large and it takes a considerable time to compile them.
As for the practical aspect, the ministry requires more procedures and documents from applicants.5[5] In addition, the competent directorate in the ministry confers with the security services in regards to applications. This internal procedure is not required by law, which made obtaining registration by citizens contingent on acquiring approval from four different governmental bodies: the Ministry of Interior, the relevant ministry which covers the activities of the association subject of the application, the preventive security force, and the intelligence agency.6[6]
5. Are there effective remedies in the cases where registration is denied, delayed (e.g. judicial, administrative?)
In case of denial of registration, law provisions of 2000 are clear and allow applicants to resort to the judiciary. In the case of delay in responding to an application, the law considers the association to be licensed after 60 days of submitting the application. The receipt for registration fees could be considered a registration certification, but it is better to resort to the Supreme Court and submit this receipt to obtain a judgment that forces the ministry to issue a registration certificate. This report has cited a similar case earlier.
6. Does registration automatically entail obtaining a separate legal personality?
Article 7 of the law stipulates that associations and institutions gain an independent legal and financial personality right after registration. Associations are not allowed to carry out their activities before registration, or before declaration of registration in the official gazette.
7. Are there other viable alternatives if the right to freely form and incorporate an association is denied (e.g. incorporate as a company, a trust a “Wakf”)
There were a number of associations registered during the occupation era and the beginning of the PNA as not-for-profit companies in accordance with the companies’ law number 30 of 1929.
There are a number of associations registered in the Ministry of Labor as cooperatives according to the Cooperative Associations’ Law number 50 of 1933 applicable in Gaza Strip, and the Cooperative Associations’ Law number 17 of 1956 applicable in the West Bank.
1. What are the causes/grounds of dissolution? Suspension?
Associations have the right to dissolve themselves voluntarily with the approval of the majority of their public assemblies. Associations should inform the ministry immediately about dissolution resolutions.
If dissolution is forced upon an association, it could be for the following reasons:
1- If the association does not start its actual activities during the first year after its registration, as long as the suspension of activities was not caused by a force majeure out of the association’s control. In this case the registration will be canceled by the ministry after issuance of a written warning.
2- If it was proved that the association violated its statutes in a crucial way, and did not correct the situation within a maximum of three months after receiving a written warning by the ministry or the directorate.
If an order is issued by the minister to dissolve the association, the decision should be justified and in writing. Associations can continue their activities until the court issues a ruling in the dissolution case.
On August 27, 2007, the Ministry of Interior dissolved 103 associations. The authorities have not notified the associations condemned nor notified in what capacity the associations failed to comply with the Law.7[7]
2. What authorities pronounce these decisions? (role of the Judiciary, Executive …)
The law authorizes the Minister of the Interior to dissolve associations to his discretion, in contradiction with the international standard.
3. Are there effective remedies and appeals?
The law authorizes the administrative judiciary to consider appeals submitted by associations which object to the minister’s decision to dissolve them. The law stipulates that the “competent court” in this regard is the Supreme Court in its capacity as an administrative court. It considers the minister’s decision an administrative decision.
If the dissolving decision was voluntary, other members may object about voting results. Readers should refer to the paragraph that deals with this issue.
1. What is the extent of the freedom of members to draft and amend their own statutes and by-laws and to determine their own objectives? (are such documents imposed? to what extent?)
The Law of Charity Associations and Social Institutions number 1 of 2000 guarantees the right to carry out different activities that realize associations’ goals, and it guarantees the right of members of the “public assembly” to form policies and general directions of the association, in addition to the right of members to amend statutes if they obtain the absolute majority of the public assembly’s votes.
Studying the realities of charity associations in Palestine reveals that their statutes are based on a form that the ministry prepared in advance and distribute to people applying for registration of an association. Founders of associations are obliged to fill the basic information: name of association, address, branches, and goals. Other than that, all associations should follow the ready form. If an association does not abide by that form, the ministry will object and put obstacles in the registration process.
2. What degree of freedom do members have to join or leave associations?
Article 1 of Charity Associations and Social Institutions Law number 1 of 2000 stipulates that “Palestinians have the right to engage in social, cultural, trade, and scientific activities freely, including establishing and running civil associations in accordance with the law.” Hence, the law guarantees the right to establish associations, but it stipulates that the number of founders should be a minimum of seven persons. As for types and conditions of membership and reasons for terminating membership, it has been left to the association’s statutes.
We believe that the Charity Associations and Social Institutions Law is consistent with Palestinian legislators’ intentions to consolidate the right to establishing associations, joining them, and running them freely. Membership in associations is open to everyone. Even though the law guarantees the right to join or leave associations, there is not in practice any freedom to join associations since membership is closed and depends on the will of managing boards of associations.
The issue of opening membership is usually a subject of debate during public assembly meetings. Some powerful actors in associations resort to recruiting new members to guarantee adoption of particular decisions or electing particular persons.
The law does not put any restrictions on senior public officials, whether civilian or military, joining associations. This opens the door for conflict of interest and the control of some associations.
3. Is there any interference in the corporate bodies: e.g. attendance of meetings (Board, General assemblies) by “supervisors”, elections?
The ministry has the right to send a representative to attend public assembly meetings and elections. Associations must inform the ministry in advance about the dates of public assembly meetings and elections. However, the ministry or any other executive authority has no right to send a representative to attend any of the management’s meetings.
4. Are there any restrictions (legal or de-facto) promoting, limiting or banning participation of women in associational offices (e.g. Board).
As for participation of women, there are no restrictions on their participation. However, the social situation in Palestine has a direct effect on the level of participation and on women’s roles in society.
5. Is there any interference in the freedom of associations to decide on projects and activities? If yes, how and why?
There is no interference by the authorities in the activities of associations. The law guarantees the right of associations to carry out any legal activity to realize their goals. In practice, the role of the Ministry of Interior or any other relevant ministry does not exceed receiving reports from associations, which indicates that associations are free to pursue their projects and activities.
6. Is the association’s right to freely assemble or organize private and public meetings, move freely (including international travel) restricted in any way?
Associations hold their meetings freely as part of their activities. The PNA does not impose any restrictions on freedom of movement and travel. However, the restrictions imposed by the Israeli occupation affect practicing this right in terms of the movement of the associations’ cadre. These restrictions also have an effect on associations’ ability to hold management meetings, board meetings, public assemblies, and elections.
Recently, numerous associations have been forced to stop their activities after damages to facilities caused by armed groups.8[8]
7. Are associations subject to specific limitations on their right to freely communicate (e.g. access to media, publish and develop internet sites)?
Charity associations and social institutions practice their activities in communications and publishing freely. They also use their websites without any hindrance and can engage in joint activities with other associations locally, regionally, and internationally.
8. Is the freedom of associations to cooperate and network with others limited (both domestic and international)?
There are no restrictions on associations’ freedom to deal and cooperate with other associations.
9. Is the participation of associations sought for opinion or participation in deciding on public interest issues? What is the nature and level of such consultations?
Article 10 of the Charity Associations and Social Institutions Law number 1 of 2000 stipulates that “the relationship between associations and institutions with relevant ministries is based on coordination, cooperation, and integration for the benefit of the public interest.” This shows the necessity of establishing strong relations between public institutions and the institutions of civil society, which implies their participation in drawing up of public policies, and decision- making process related to the public interest. But the reality of joint work between public and civil institutions is minimal, with the exception of rare meetings with ambiguous goals.
10. Are there effective remedies and appeals?
The Supreme Court, in its capacity as an administrative court, is the right authority to adjudicate in conflicts between associations and the Ministry of Interior.
Palestinian legislation does not impose any restrictions on receiving aid and funds or owning property. However, the law prohibits attaching conditions to funding and aid.
Article 31 of the same law obliges associations to deposit their monetary funds in their names in a bank or banks approved by authorities. Associations must inform the relevant ministry about the banks they keep their accounts with, and they can’t keep cash sums in their offices that exceed their expenses for one month.
In addition to that, the Palestinian Ministry of Finance issued a memorandum in 5/9/2001, in accordance with instructions from the Ministry of Interior, to all banks working in Palestine to refrain from opening accounts for civil associations and institutions without approval from the Ministry of Interior. This order constitutes an additional illegal condition that is not stipulated by the law or the executive regulations.
In 24/8/2003, the Palestinian Ministry of Finance issued a memorandum, based on an order from the attorney general, to all banks working in Palestine to freeze all accounts belonging to some associations “and not to release any money from their accounts without written advanced approval from the Ministry of Finance.” This decision involved 39 associations that operate in accordance with the law in the Gaza Strip.9[9]
In 21/3/2004, the Supreme Court issued a judgment to cancel the Ministry of Finance’s memorandum mentioned above allowing associations to access their moneys. Despite that, the Ministry of Finance circumvented the court decision attempting not to implement it through “pretending to implement it in formality while keeping the mentioned associations’ accounts essentially frozen.” In 27/3/2004, the Ministry of Finance issued a new memorandum asking all banks for “a provisional freezing” on the accounts belonging to associations mentioned in the previous memorandum, this time on the basis of a decree from the Palestinian president and orders from the Ministry of Interior. In 31/3/2004, the Ministry of Finance issued a memorandum (memorandum number 48) to all banks clarifying that disbursement from the accounts belonging to associations and institutions mentioned before should be based on a decision by the Ministry of Interior directly, without need for a memorandum or approval from the Ministry of Finance. In 6/4/2004, the Ministry of Finance issued another memorandum (memorandum number 56) stipulating that “all banks working in Palestine should take all legal measures to implement the court decision mentioned above.” The next day the Ministry of Finance issued a new memorandum to all banks “to abide by its memorandum number 48 issued in 31/3/2003.”10[10]
2. Are there any restrictions that limit the right of associations to use funds in ways different than what their statutes stipulate?
Yes, there are restrictions. If that happens, the Ministry of Interior has the right to suspend or dissolve the association. Disposition of movable and immovable assets by associations in a manner different from that which is stipulated in their statutes is considered a crime of illegal disposition of public funds, which is punishable by penal law.
On the other hand, if an association disposes of its funds as stipulated in its statute, it can benefit from tax and customs exemptions. These exemptions are granted if the association has not spent funds in violation of its statutes within five years of receiving the funds. In this case, the association is reimbursed for all the taxes and customs it paid for the funds. On the other hand, if associations do not make use of their funds in accordance with their statutes, they lose all privileges and the right to benefit from tax exemptions and have to pay all required taxes and customs according to the Ministry of Finance’s procedures. After five years of receiving the funds, associations can use what remains of their funds without limitations. However, many associations still have not been reimbursed for tax exemptions due to them from the Ministry of Finance.
3. Are there specific limitations on receiving foreign funds?
There are no restrictions in the law on receiving foreign funds. However, at signing the funding agreement, donors require opening a bank account exclusively for the project. This requires a memorandum issued by the Ministry of Finance to the relevant bank approving the creation of the account. In general, there are no restrictions on Palestinian associations. However, restrictions are usually imposed on foreign associations.
4. To what extent are those restrictions implemented?
We mentioned earlier in this report some problems happened when some associations belonging to Hamas Movement were targeted by decisions to freeze their accounts and to restrict them from receiving financial aid.
5. Do associations enjoy any financial or taxes privileges? To what extent?
The executive regulations address tax exemptions for associations. Article 51 of the executive regulations stipulates that associations are exempt from taxes and customs on their movable and immovable assets necessary to carry out goals stated in their statutes.
6. Are public funds made available to associations? How? Are these processes prone to discrimination?
There are no provisions in the law that require the state to fund associations. However, during the governments that were led by the Fatah Movement, Fatah authorities tried to control society by funding many associations from the public funds without including that in their reporting to the legislative council and other monitoring bodies. In other words, many public employees were funded and delegated to work for associations affiliated with the state party (Fatah) in a irregular manner. Estimates of the number of associations that received funding from the Ministry of Finance or the president’s office until 2003, exceeds 130 associations.
1 - What are the supervisory authorities that oversee associations (e.g. courts, ministries, independent bodies, security apparatus)? How consistent are the activities of these authorities with the principles of freedom (example: article 16 of the Declaration)?
Article 6 of the law delegated to the relevant ministry the authority to monitor the work of associations. However, monitoring bodies multiplied and monitoring is practiced by many different ministries, or by the preventive security apparatus and the intelligence agency.
The Associations Law also commissioned Public Inspection Office to monitor associations (law number 17 of 1995, article 7/2). This office engaged in actual and serious monitoring until July 14, 2007.
A ministry was established for the affairs of civil associations in accordance with presidential decree number 2 of 1998. This ministry became a source of additional complications, especially after the issuance of presidential decree number 4 of 1999 in 6/10/1999 which delineated the authorities of the new ministry. The Palestinian Law of Charity Associations and Civil Institutions, which became operative in 31/3/2000, does not refer to this ministry, and it gives the authority for the registration of associations and monitoring of them to the Ministry of Interior, in addition to the relevant ministry. It is worth mentioning that this ministry was dissolved on 2003.
This authority could hinder the work of associations if it was abused through interpretation of laws and using it as a tool for investigations rather than monitoring. It also conflicts with the authorities of the office of financial and administrative oversight and the directorate of associations’ registry.
2 - What penalties (e.g. criminal, fines, etc) and harassment measures are applied in cases of violations?
As we mentioned above, the penalty could be dissolving the association. There are also other criminal penalties related to associations’ funds.
[1] Barghouthi, Mustafa, Palestinian NGOs and their Role in Building a Civil Society, Jerusalem: Union of Palestinian Medical Relief Committees, 1994.
[2] The Independent Palestinian Commission for Citizens Rights, The Formation of Societies in the PNA Territories, Law and Practice, a series of reports (15), 2002, Ramallah.
[3] It was very difficult to obtain accurate figures on the numbers of associations registered with the Interior Ministry because of the damage the buildings and files of the Ministry sustained during the infighting. However, the figures we obtained from the personnel of the NGO’s Department at the Ministry indicate that the number of associations registered with the Ministry stood at 1059 at the beginning of 2007.
[4] For exemple, the Al Mezan Center of Human Rights , Al-Haq, le Palestinian Center for Human Rights. Back to text
[5] For instance, registration procedures in Gaza strip also requires “attaching curriculum vita for each founding member for the association, which should include current and past political affiliation, countries visited, date and reasons of imprisonments, names of three close friends, and a summary of the main stages of live. All these questions are stemmed by security concerns and have nothing to do with civil society activities.” (Ribhi Qatamish, Registration of Civil and Charitable Associations: A study in Legal and Administrative Procedures, Tamkeen – Project of Promoting Democracy and Civil Society, 2003, P.18)
[6] Ibid. p.19 Back to text
[7] For more precisions, see “Al-Haq Position Paper on the Ministry of Interior’s Decision to Dissolve 103 Civil Society Organisations” http://www.alhaq.org/etemplate.php?id=340 Back to text
[8] For more information on associations forced to stop their activities, please the Report of Al - Haq et d’Al-Mezan Center for Human Rights, 2/7/2007, www.mezan.org.
[9] The Islamic Association (11 branches); Al-Salah Islamic Association (8 branches); The Young Muslim Women Association (11 branches); The Islamic Assembly (2 Branches); Al-Nour Charity association (formerly know as Prisoners Care Association); Students Friends Association; Center of Science and Culture Association; Zakat Al-Rahmah Committee; Al-Aqsa Charity Association; Charity Committee for Zakat and Aid; Social Charity Committee; Social Care Association.
[10] See press release issued by the Palestinian Center for Human Rights issued in April8, 2004, and press releases issued by Al-Mezan Center for Human Rights issued in 22/2/2004, 21/3/2004, and 29/3/2004. Back to text
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Mazen Shaqoura
"From a legislative and procedural perspective it’s very difficult to talk about positive aspects in the current situation..." Read more
