3. Formulating the Draft Law Concerning NGOs
That Palestinian NGOs would have to be regulated was never in doubt, either on the part of the PNA or of the NGO community. How and when that would occur, what form of regulation, under which ministry, with what rights and responsibilities accruing to NGOs - these and other questions were being considered as early as the beginning of 1995. In May, contacts were made between the PNA and the PNGO Network, representing 42 NGOs and speaking on behalf of at least 70 in total (i.e., supporters but not officially members of the Network). The Network held workshops on proposals for regulating NGOs and creating legislation. Before the second phase of their efforts to work with the PNA,
"we received the news that a draft law had been already written, without discussing anything with us. Then, the PNA wouldn't even give us a copy of the law! This is the only law not published or made available to the public".
The law was drafted by three men from the PNA - at least one of whom is an official in the Ministry of Social Welfare (MOSW). The principal author of the draft defended himself in an interview we held in Gaza.
"What's the problem with the PNGOs [the Network]? This is a positive law, not like other countries. Egypt's law is bad for NGOs. I am with the NGOs. I want to help them not stop them."
The mention of Egypt's law was initiated by this official, not me. It indicates even more his self-consciousness and defensiveness about the "infamous" Egyptian law, which was indeed a reference the authors made by their own admission. Also, it was an attempt to respond to the PNGO and PECDAR criticisms that have been circulated either in the press or through personal lobbying. Virtually no Palestinian - officials and especially lay public - wants to look to Egypt's political and bureaucratic system as a model for their own. Nevertheless, the comparison exists, and the first two drafts of the PNA law on associations is an example of this comparison.
Officials from PECDAR also attempted to have their say as to how NGOs should be governed in Palestine. These officials, however, had a much different law in mind than do their counterparts in other offices throughout the PNA - Social Welfare, Interior, Justice, and the Office of the President. PECDAR came out quite forcefully with a working paper discussing principles that would indeed govern - i.e., regulate but not control - the NGO community in Palestine. But their proposal was not even seriously considered by the PNA. PECDAR officials say
"we drafted a law for NGOs and we circulated it around the ministries for discussion. But it was simply rejected without any real reason given. We even tried to have a workshop in Jerusalem with NGOs in December 1994 to get NGOs and the PNGO Network to work with us and push the PNA to accept this draft law. But Israel banned this workshop. This is too bad for the NGOs; ours was a much more [liberal] law with more freedoms of activity for the NGOs. With a workshop, we could have built a coalition to pressure the PNA to pass our draft.
Instead, [the Ministry of Social Welfare] wrote an alternative draft law. When we received a copy of their draft law on NGOs, our lawyers and others in the office rejected it out of hand! We concluded it would be better for NGOs to close up shop than to live under this law. I'd like to tell NGOs to revolt against this law, but we can't tell NGOs to do this since we are the government! Yet, as PECDAR, our mandate is to fully support NGOs."
In addition to this example of internal PNA disillusionment and resistance to supporting the proposed law, there is some evidence that the Ministry of Social Welfare itself was divided over this law. One fact in support of this statement was found in my own interviews in the Ministry. In Gaza and Ramallah, I found two men each claiming to be the principal author of the legislation and each disavowing the other. Why there is an effort to take credit for a discredited draft law, I cannot say. But it does demonstrate clearly the internal rivalries within MOSW. Another indication of internal divisions was suggested to me by officials from both MOSW and the PNGO Network. Both claim to have heard directly from Intisar al-Wazir (Um Jihad), the Minister of Social Welfare, about her personal dissatisfaction with the proposed law and the way in which the draft was written, distributed, and nearly passed.
Prior to the election of a legislative Council, scheduled for in January 1996, laws were made by decree from the Office of the President (Yasser Arafat), usually with the consultation with his Council of Ministers. Using the law of associations (NGOs) as an example of "how a bill becomes a law", the process looks (theoretically at least) something like this:
¨ a ministry (in this case, the Ministry of Social Welfare) initiates
and sends a draft law to
¨ the President, who turns it over to
¨ the Minister of Justice who reviews it and asks the opinion of
¨ Diwan al-Fatwi wa al-Tashrii'ah, the legal council reviewing
decrees and laws; they return it to
¨ the Minister of Justice who passes his recommendation on to
¨ President Arafat, who seeks advice and a vote from
¨ the Cabinet of Ministers
Laws could be changed, of course, once the legislative Council was elected and took office.
For the draft law on NGOs, the NGO community in Palestine was not content to "ride out" the storm of this restrictive law and hope that it would be changed in 1996 by an as-yet unelected Council. Instead, they mobilized their members and put on an impressive lobbying campaign against the draft. First, the PNGO Network
"attempted to meet Arafat before he approved this law. We worked with his office in Gaza and he sent to the Israeli-PNA liaison committee the names of five of us who would come from the West Bank to Gaza. We were told it was all set - but when we showed up at the Erez Crossing, the Israelis wouldn't let two of our group in. So the rest of us refused to enter, out of solidarity with the two."
Whether Arafat's office had anything to do with undermining this popular effort against the draft law is unclear. Still, if it was the case that Arafat's office had cleared this visit with the Israeli-PNA liaison committee, the fact that this group was not allowed to enter as planned may be attributable to Israeli inefficiency (unlikely), Israeli duplicity (possible), PNA inefficiency (likely) or duplicity on Arafat's part (possible).
Down, but not out of the "game", the PNGO Network continued its campaign.
"We put pressure in every way possible. We wrote papers, put ads in al-Quds [Arabic daily newspaper; see ad in Appendix], wrote a newsletter with a translation [English] of the law and an analysis of it, we asked friends in the international community to complain, some of us called ministers and asked them to reject this. Finally, Um Jihad called me and said to 'cool down, be patient, and stop your campaign against the law.' Um Jihad admitted that there was tremendous pressure from international agencies, donors, consulates, representatives of the Union of Charitable Societies, and from political factions."
With the postponement of a decision on the first draft law, a ministerial steering committee was set up to coordinate NGO activities and regulations surrounding them. This committee consisted of ministers of:
What the Ministry of Transportation has to do with regulating NGOs, no one interviewed for this research could quite say. It was certainly on the minds of PNGO Network representatives.
By mid-October 1995, a second draft law was distributed by the Ministry of Justice. This draft said that it has taken into account the concerns of various entities, including:
Amthe "positive" changes (in the view of PNGO and some international donors) of this second draft include (1) the right of appeal by NGOs against the Minister of Social Welfare, a right explicitly not allowed in the first draft; and (2) the right of a general assembly to decide on combining/ integrating their boards, rather than keeping that right in the hands of the Minister of Social Welfare as in the first draft. The right of appeal is especially significant, since otherwise the Minister of Social Welfare had final say in allowing an NGO to register and provide services. The right of appeal gives the judicial branch a "check" on the power of the Executive Branch.
"More than just the few, but important, changes, the greatest achievement so far is the fact that approval of this draft has been delayed until further discussion. We would like to discuss this with the PNA and the Coordinating Committee of Ministers. But even more, we want the elected Palestinian Council to decide on this important [legislation]."
The PNGOs and their Network are generally displeased, still, with the clauses stipulating that they must get the "approval of" the Minister of Social Welfare to accept foreign assistance - not just report such assistance to the Minister. "Why not just let the board of an NGO decide if it should accept money from a certain group? Why should the Minister have that decision?" The response of a MOSW official to this question was: "because we don't want Iran or other certain groups or countries sending money in to Palestine to undermine us, the government and the society." PNGO representatives are especially and mostly concerned about the second article of the proposed law, dealing with registration and licensing of NGOs.
"Licensing to us means that NGOs could fulfill the registration conditions but still not get a license to conduct their activities. Requiring both means the PNA will have two ways of controlling us. And they can look cooperative - i.e., we'll let you register - but still act [dictatorially] - i.e., we won't let you do your work!" MOSW officials assert that registration and licensing are one and the same, i.e., "it is the same process. Once you register, khalaas, you are licensed as well."
PNGOs do not trust this statement.
"We need to be in constant discussion with the PNA about this, about the law, about our role in society. What we need, at least, is a declaration of principles...."
Without finishing her thought, this leader in the PNGO Network suddenly realized the significance of her words. She admits she had no intention of using this phrase, which is the term used for the official document that began the peace process between Israel and the Palestine Liberation Organization. With the parallel having been made, she agreed that the Palestinians themselves need a declaration of principles. Many Palestinians from the NGO community agree that Palestinians as a community need to negotiate with one another, to build consensus on an arrangement between "state and civil society" - i.e., they need a social contract to govern their relationship as they move toward the establishment of an independent sovereign state that is also recognized and supported by the international community.
Easier said than done, however.
The PNGO representative saw the conflict between it and MOSW as a clash of
"competing visions of development. The PNA sees development as a sector-by-sector process with a singular focus on health care by itself and education by itself or agriculture by itself. We, the PNGOs, see development as occurring across sectors simultaneously. We must continually think about the interactions and interrelationships of health, education, human rights, and so on."
Beyond their developmental philosophizing and social activism, the NGO community is developing a clear sense of its duty to act in solidarity to assert its collective interests vis-a-vis the emerging Palestinian government. That is, it is developing itself as a "lobby group." Beyond simply publicizing its complaints in newspapers and newsletters, the PNGO community has not shied away from using its own contacts within the PNA to request, if not demand, that its interests be better represented in the new governing authority.
"We lobby the PNA as a group but also personally - i.e., any way we can. The PNA isn't just some anonymous, distant government. These are colleagues, friends, former students, classmates. It is such a luxury to deal with them compared with Israel. We couldn't even speak to anyone there. They didn't care what our problems were. The PNA is different, of course. For example, with the proposed law on NGOs, I called Nabil Shaath and all the ministers I know to ask them to resist this law. I also called international leaders to tell Arafat to change the law."
This comment raises an important third factor that must be considered when analyzing the way in which laws were proposed, developed, amended, and generally implemented during the interim autonomy phase of Palestinian governance. In addition to the lobbying efforts of both societal actors and state representatives, this third source of pressure on the PNA is that of international actors, donors in particular. International pressure on the PNA is certainly a factor in the decision of the latter to suspend further consideration of the law of associations for Palestine. This pressure was quite subtle but nevertheless strong during the fall of 1995. Donors were quick to say they were not exerting overt pressure on the PNA as they did not attempt to get involved in the domestic affairs of this developing "authority" (i.e., government). (In response to such a statement, most Palestinians who heard it simply laughed at the idea that international donors claimed to not interfere in internal political issues!) Nevertheless, it was clear from discussing this issue with a variety of international donors, especially representatives of the European Union and bilateral and multilateral aid agencies, that this pressure existed and was persistent.
At the Donor Conference in Paris in mid-October, 1995, NGOs were on the agenda and were to be discussed Saturday October 14th. The NGO draft legislation was likely to be raised at that meeting, with the implication that the PNA was set to be officially "warned" about the negative impact of this law. PNA officials were quick to announce - before stepping into the room and before the session officially opened - that this legislation was not a problem for the donors to worry about because the cabinet agreed on Friday (i.e., the day before) to withdraw the draft law (now in its second version) from consideration for the time being.
"The donors have been very reluctant about the draft law for NGOs. Just before donors were to discuss NGOs and the law at the October Donor Conference, the PNA announced its plans to drop the draft and said it would start over, 'with dialogue'!"
This timing could be coincidental, but the potential for international pressure is a factor in the decision making by the PNA.
In addition to feeling the subtle international pressure regarding the specific law, PNA officials are adept at using the appropriate language when discussing matters of interest to the donors. Nabil Shaath, Minister of Planning and International Cooperation, is especially experienced in such diplomatic niceties. At the Donor Conference, he stressed the importance of NGOs in building a civil society, democracy, etc.
"We're not sure he meant it but at least the PNA is on notice that these are the topics of interest to the donor community and that they (PNA) will be accountable on these issues."
The postponement of the NGO draft legislation is a result of at least three factors - "societal pressure" represented by the extensive lobbying efforts of the PNGO community; "inter-governmental debates" represented by the disagreements within the PNA structure; and "international pressure" represented in particular by the decision by the PNA to suspend further consideration of the draft law on NGOs at the time of the October 1995 Donors Conference in Pa. There certainly could be other factors - such as the mercurial temperament of Arafat - but these three are the factors that can be demonstrated and analyzed in a systematic fashion.
As Palestinians continue to struggle internally and externally, with themselves and with international actors (donors especially), it would be useful to see that they are not alone in this continuing struggle to develop and enhance a political community. Jordan and Egypt are often the first countries Palestinians look to for comparison with their own. In the case of NGOs, such comparisons are especially relevant. Egypt especially shares with Palestine a rich tradition of social activism, civic involvement, charitable works, and urgent need for communities to rely on themselves. While a full comparison between Egypt and Palestine must wait until the completion of this research, a look at Egypt's law governing its NGO community is an important starting point - especially since the issue of governing NGOs is perhaps the most pressing issue now for Palestinians.