Abstract
This chapter comparatively surveys the laws, legal environments and government policies in relation to philanthropy and the third sector organisations in 47 Muslim majority countries (MMCs) in Africa and Asia. The chapter is divided into three major sections according to MMC colonial relationships. The first section includes countries with British colonial past, the second includes countries that had non-British European colonization such as Dutch, French, and Portuguese. The third section examines countries that were never subjected to direct European colonization. Each section addresses primarily three aspects: legal features and systems of TSOs; regulatory mechanisms that guide functional, financial, and governmental relationships of TSOs; and financial tools influencing growth and activities of the TSOs. The concluding section endeavors to analyse relationships between the third sector legal environments with possible influencing factors such as economic status, colonial heritage, legal systems, political power structures, and social systems of each county.
The author is grateful to Professor Karla Simon for helpful comments on an earlier draft of this chapter. The reviewer, however, is not responsible for the shortcomings of the chapter, if any.
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Notes
- 1.
The first set of digits in this citation refers to the chapter in and the second to the verse number in the Qur’an. In subsequent places in this chapter only the digits are used without repeating “Al Qur’an.”
- 2.
Verily Man is in loss; Except such as have Faith, and do righteous deeds, and (join together) in the mutual teaching of Truth, and of Patience and Constancy (3:102–103).
- 3.
Whoever recommends and helps a good cause becomes a partner therein: and whoever recommends and helps an evil cause, shares in its burden: and Allah hath power over all things (4:85).
- 4.
“let there arise out of you a band of people inviting to all that is good, enjoining what is right, and forbidding what is wrong; they are the ones to attain felicity ” (3:104).
- 5.
Waqf is a foundation formed through voluntary donation by the owner of a property dedicating the usufruct to some charitable ends for the duration of the property’s existence. For more please see Chap. 7.,
- 6.
The term “third sector organization” is used here in a comprehensive sense to include “civil society organization” (seen from a political perspective, i.e., state failure), not-for-profit organization (business perspective, i.e., market failure), and non-government organization (development perspective, i.e., policy failure). “Third sector organization” can also be seen from a positive (right establishing and service entrepreneurship) public policy (management) perspective referring to organizations with private (formal/informal) group interaction, (public) utility creation, and nonprofit distributing, see Chap. 1; also Lyons, 2001.
- 7.
The Maliki School (followed mainly in North Africa and to some extent in sub-Saharan Africa and the Gulf states of Bahrain, Oman, Kuwait, and the eastern part of Saudi Arabia) “gives equal importance to public interest (masalih al-mursalah), analogy (qiyas), and the juristic preference (ijtihsan)” (see Hasan, 2012a; and Chap. 3).
- 8.
It may be argued that dividing the countries along the legal systems (Civil or Common) could have been a better approach. During the research, it was, however, revealed that “colonial influence” has been most important in differentiating the legal characters. So the legal system in a civil law country without colonial heritage (e.g., Turkey) has developed differently than a civil law country with French colonial past (e.g., Tunisia). Then there is Saudi Arabia, not following either of these two systems.
- 9.
Constitutions are available at the Richmond University: http://confinder.richmond.edu/ last accessed on 7 August 2013.
- 10.
Laws are primarily available in the International Centre for Non-Profit Law website: www.icnl.org.
- 11.
Comprehensively surveying the International Journal of Non-Profit Law (IJNL: www.icnl.org/journal/journal.html) and the Academic Searchfile database.
- 12.
The author’s field works, research consultation, and discussions with colleagues in a dozen countries in South Asia and Southeast Asia for the study of the Asia Pacific Philanthropy Information Network APPIN work (undertaken and updated between 2000 and 2007 for a website, www.asianphilanthropy.org) are the bases of understanding of the laws, traditions, urf (norms) and adat (customary laws).
- 13.
Government documents used in the discussion on legal provisions are listed in the reference but not cited in the text not to break the flow of the text; other secondary sources used in the analyses are cited properly.
- 14.
Since the election of religious parties in to provincial governments in Malaysia and Nigeria, Shari’a law and local customs have been extended to criminal matters.
- 15.
For example, honor killing practiced in local informal arbitration in Pakistan, is a local custom with no connection to Islamic jurisprudence.
- 16.
Such as religious bodies, social, recreational, or sports organizations, social welfare groups, political parties, trade and commerce groups, youth groups, educational associations, mutual benefit societies, etc.
- 17.
For details see, Government of Jordan, 1997;2009;2010. Though called “society,” its features are akin to a “foundation” in other legal systems.
- 18.
The declaration may or may not specify rules under which the trust may operate, but must specify the purpose for which it is being created and the property vested to it (Ghaus-Pasha & Iqbal, 2003).
- 19.
“Charity” or “charitable objectives,” as defined in the Transfer of Property Act in Pakistan, may include the advancement of religion; knowledge; commerce, health, and safety of the public; and any other object beneficial to mankind (Ghaus-Pasha & Iqbal, 2003).
- 20.
cf. ICNL, NGO Law Monitor http://www.icnl.org/research/monitor/egypt.html; last accessed 29 November 2013.
- 21.
ICNL, NGO Law Monitor http://www.icnl.org/research/monitor/egypt.html; last accessed 29 November 2013.
- 22.
A proposed “Law on Freedom of Expression, Assembly, and Peaceful Demonstration” is under consideration in the Parliament in 2013.
- 23.
Also ICNL, NGO Law Monitor http://www.icnl.org/research/monitor/egypt.html; last accessed 29 November 2013.
- 24.
However, since 1989–1990, a number of large NGOs have been issued with income tax assessment notices because of the transfer of surplus (profit) from the nonprofit commercial ventures (either registered separately or operated as a project within the core program of the NGO) to the audited accounts. The matter has not been resolved.
- 25.
Comoros, being a small Island with abundant water and vegetation, never had a rigid tribal system. Tribal system in Algeria was weakened by the French colonial and postcolonial military interventions; that of Tunisia was all but abolished due to same reasons, but of longer duration.
- 26.
These MMCs either allow the third sector activities under the general civil law without the formation of a specific TSO law or may have laws which are yet to be available in English. So the discussion in this section and conclusions at the end do not consider these countries.
- 27.
This paragraph is based on Radyati and Hasan (2006).
- 28.
See Government of Lebanese Republic, 1909a. This law is the source of laws in many other countries that were part of the Ottoman Empire, e.g., Iraq.
- 29.
For example, the “Civil Law article no. 1653-1665”; Statute-Book 1870 on Legal body for Associations; Statute-Book 1939 on Indonesian Association; Ministry Instructions No. 8, 1990 for Governing NGO; Government Regulation No. 59, 2001 concerning Self-Reliant Community (Radyati & Hasan, 2006).
- 30.
The Indonesian Law on Zakat Management no: 38, 1999.
- 31.
The situation has not changed even after the overthrowing of the government in 2011.
- 32.
Out of the 14,996 TSOs in 2012 (about a third of which was created in 2011 and 2012), only 43, 68, and 167 deal with the children, women, and environment issues, see FFF, Foundation for the Future (2013). Study on Civil Society Organizations in Tunisia, http://foundationforfuture.org/en/Portals/0/Publications/Etude%20SC%20english%20Version%20Finale.pdf; last accessed on 1 December 2013.
- 33.
Personal note received from Professor Karla Simon, 30 October 2013.
- 34.
A foundation is required to publish an annual report in local newspapers, if its asset is equal to or above Rp.20 billion US$ 2 million). Should the asset be less, the foundation need to make a public display of the annual financial report in the organization’s notice board. A public announcement also becomes essential if a foundation gets donation of Rp.500 million (US$ 50,000) or more.
- 35.
For more information please check ICCL Report (www.iccl.org); and “Government” under the respective country in The World Factbook, CIA, https://www.cia.gov/library/publications/the-world-factbook/.
- 36.
This could be another reason for the absence of a colonial system in these MMCs because the British in most cases enjoyed the required economic and maritime advantage by signing a “deal” with the local tribal chief, e.g., the signing of the General Treaty of Peace in 1820 or the Perpetual Maritime Truce, 1853.
- 37.
Article 11 of the Constitution of the Kingdom of Saudi Arabia (adopted as a Royal Decree by King Fahd in 1992); viewed in http://confinder.richmond.edu/ on 7 August 2013.
- 38.
Personal note received from Professor Karla Simon, 30 October 2013.
- 39.
The most significant laws are Law on Associations, Official Gazette no. 1114, issued 1 September 2013; “Non-Governmental Organizations, Official Gazette no. 857/2005”; Implementing Regulations for the Law on Non-Governmental Organizations (2005). Afghanistan, NGO Monitor, www.icnl.org, last accessed on 30 December 2013. Other sources used in the discussion are: Elbayer, 2005; Government of Afghanistan 2002; 2005; Government of Algeria 1990; 2012; Government Egypt, 1956; 1981; 2002; Government of Iran, 2006; Government of Kuwait 1962, 1993; Government Kyrgyz Republic 1999; Government of Qatar 2004; Government of Tajikistan, 2009; Government of Turkey 2004; Kandil, 2010.
- 40.
In fact, this has been a growing trend—even UK and US have low-profit distributing entities like this considered to be social enterprises. Personal note received from Professor Karla Simon, 30 October 2013.
- 41.
Iran’s recognized minority groups can also form associations to address cultural, religious, and social issues they face (Katirai, 2005).
- 42.
ICNL, NGO Law Monitor http://www.icnl.org/research/monitor/egypt.html; last accessed 29 November 2013.
- 43.
Also ICNL, NGO Law Monitor http://www.icnl.org/research/monitor/egypt.html; last accessed 29 November 2013.
- 44.
Non-Qatari residents can fund but cannot be more than 20 % of the total membership of an association (Khallaf, 2008b).
- 45.
For example, advocacy for humanism and tolerance, consumers’ rights, the protection of the environment, the protection of historical and cultural monuments (and cultural and moral heritage); legal and cultural consciousness, disease and epidemics, healthy life style; Children and youth education, physical and mental development; Emergency services and assistance to the victims of armed conflicts, natural disasters, industrial accidents, fires, epidemics, to victims of emergencies; Assistance to persons released from prisons, addicted to drugs, and subjected to domestic violence (Government of the Republic of Azerbaijan, 2007; 2009).
- 46.
Activities in any other field of activity need to be proposed by the respective Minister and approved by the Council of Ministers. Associations in Oman cannot “interfere in politics,” “form political parties” or “interfere in religious issues,” and must stay “away from tribal and political sects.” (Government of the Sultanate of Oman, 2000a; 2000b).
- 47.
For example, TSOs participate in local kenesh activity; help implement the decisions regarding community organizations’ activity; exercise public control of the norms and rights of building construction, residential premises usage, maintenance of residential buildings and community owned household plots, fire protection and sanitary requirements; exercise control of rational utilization of land, water, and other natural resources; take part in historical, architectural and cultural monument protection; submit proposals to the appropriate bodies on correcting the detected deficiencies; perform other activities under the Kyrgyzstan Laws in accordance with the goals and objectives of a community organization Charter. Article 12 (Government of the Kyrgyz Republic, 1999; 2005).
- 48.
These associations and NGOs are restricted from taking part in any political activities or construction works, see Afghanistan, NGO Monitor, www.icnl.org, last accessed on 30 December 2013.
- 49.
Domestic NGO registration is processed by the Technical Commission, and High Evaluation Commission; Foreign NGO registration is processed by the Ministry of Foreign Affairs and Ministry of Economy, see “Afghanistan,” NGO Monitor, www.icnl.org, last accessed on 30 December 2013.
- 50.
ICNL, NGO Law Monitor http://www.icnl.org/research/monitor/egypt.html; last accessed 29 November 2013.
- 51.
ICNL, NGO Law Monitor http://www.icnl.org/research/monitor/egypt.html; last accessed 29 November 2013.
- 52.
See Government of Turkmenistan, The Law of Turkmenistan on Public Associations [Nongovernmental], 2003, № 4, Article 35; 2009, № 3, Article 59).
- 53.
For example, the UAE Federal Act 6, 1974 governs the private associations, nongovernmental organizations and public-interest associations, and does not allow non-citizen participation in such activities (Sherif, 2008b), but Dubai allows that.
- 54.
The supervisory bodies at the provincial, state, and national levels are made up of government officials (the chief executive of the province or state, as appropriate; a deputy from the Ministry of Interior affairs at the national level), a representative of the Islamic Council, and a representative from the NGOs (involved in the appropriate province, in the state, or center) (Katirai, 2005).
- 55.
ICNL, NGO Law Monitor http://www.icnl.org/research/monitor/egypt.html; last accessed 29 November 2013.
- 56.
Article 5 of the Constitution of Kazakhstan, viewed in http://confinder.richmond.edu/ on 7 August 2013. The article also disallows illegal interference “of public associations in the affairs of the state.”
- 57.
Especially in dealing with matters and issues of the contemporary world as long as the norms or the customary laws are not contradictory to the fundamental principle of Islam (the Unity of God) or anything explicitly forbidden in the Qur’an, see Chap. 3.
- 58.
For example, a TSO can be denied registration in Egypt if the organization deemed to be involved in threatening “national unity” or violating “public order or morals.”
- 59.
For example in Morocco, organizations which pursue activities that are “illegal, contrary to good morals” or aims to “undermine the Islamic religion, the integrity of the national territory, or the monarchical regime, or call for discrimination” are prohibited.
- 60.
For example in Malaysia the Minister has discretionary authority “to declare unlawful any society presumed” to be involved in “purposes prejudicial to or incompatible with the interest of the security, public order or morality.”
- 61.
For example, advocacy or political activity explicitly or implicitly is banned in all MMCs; furthermore, the field of activity of TSOs are exclusively defined in the law, as in Iran or MMCs in Central Asia.
- 62.
Due to insufficient or no information, 14 MMCs (see Table 4.2) are not included in the discussion.
- 63.
“This was the case, for example, of the English impact on both India and Ghana. In both, legal systems were put in place that actually facilitated the rise of legally protected nonprofit organizations. In addition, both countries absorbed from the colonial power a long-standing tradition of voluntary organization and oppositional politics that contributed in its own way to legitimizing nonprofit activity. This may help explain why nonprofit institutions seem to be so much more numerous and highly developed in India than in Brazil, and why the atmosphere of hostility between these two sectors is far less evident in the former than in the latter” (Salamon & Anheier, 1997: 16–17).
- 64.
Seven of these countries (Bahrain, Egypt, Kuwait, Qatar, Oman, Saudi Arabia, and the UAE) had been under British colonial influence for some time during the last part of the nineteenth and the first two-thirds of the twentieth century, and have adopted common law.
- 65.
- 66.
It can be noted, however, that this finding is contrary to some earlier assertions in reference to TSOs in the low income countries, like “reflecting the generally authoritarian politics of the country, it should therefore come as no surprise to learn that the legal structures for nonprofit activity have been quite restrictive (Salamon & Anheier, 1997: 16–17).
- 67.
Howell and Lind (2009) suggested that predominance of tribal, kin and clan identities, a primarily rural economy, ongoing conflicts and the weak state potentially (rather than absolutely) militate against the emergence of a civil society.
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Hasan, S. (2015). Philanthropy, Laws, and the Third Sector Growth: Analyses from MMCs. In: Hasan, S. (eds) Human Security and Philanthropy. Nonprofit and Civil Society Studies. Springer, New York, NY. https://doi.org/10.1007/978-1-4939-2525-4_4
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