By Carol Narcisse, JFJ Member and Civil Society Advocate
Originally published in the Jamaica Gleaner
I am always so puzzled by persons who believe what they want to believe despite having or receiving information to the contrary.
A case in point is the current debate on MP Raymond Pryce’s Private Members Motion being considered by the Internal and External Affairs Committee of Parliament.
Civil society groups’ written and oral submissions to the Committee stated clearly, their support for registration and disclosure of the financial affairs of the sector. Yet, they are being said to be ‘opposing’ registration and disclosure.
If we are to give adequate consideration to the issues set out in MP Pryce’s Motion, it must be borne in mind that the devil is in the details. As such, the submissions made to the Parliamentary Committee provide it with information that the Motion did not provide.
Firstly, the submissions defined the term ‘civil society’. Definitions help clarify who or what is being discussed and allows for more rigorous and efficient analysis. “Civil Society” refers to individuals and groups that are not the state or private enterprise. Citizens acting as individuals or groups, who are not profit-driven, are not state or government affiliated and are not seeking state power on behalf of any party or group are part of the civil society sector.
Civil society is diverse – ranging from formally structured NGOs to community organisations, trade unions, faith-based organisations and so on. With such diversity, it would be inappropriate to think that one policy size would fit all. MP Pryce’s Motion seeks to mandate they be registered. The question is: as what, where and based on what criteria?
There are currently several, lawful ways to register a civil society group through the Registrar of Companies, Friendly Societies, Cooperatives etc. This enables groups to find a form best suited to their purpose, nature of their focus or operation. Most existing ways of registering are governed by a Law setting out, among other things, requirements for how groups should operate and for financial disclosure. MP Pryce’s Motion does not make even a passing reference to these existing provisions.
So where MP Pryce’s Motion states that: “It is becoming normal in many other jurisdictions for legislation to be promulgated which mandates civil society groups or lobbyists to be registered and to publish certified and audited financial statements”, it’s not unreasonable for civil society groups to point to existing provisions of the Companies Act, Friendly Societies Act, Banking Act, the tax laws etc. Further, the operative word in the Motion is ‘mandates’ – that is, to make compulsory. What MP Pryce and the Parliament have to bear in mind are the provisions of the Constitution.
The Constitutional Right of Freedom of Association and Expression
Jamaica’s Constitution accords citizens the right of freedom of association and freedom of expression. This means that we don’t need anyone’s permission or registration to be able to associate with others for any and every legal purpose or cause and we can speak or otherwise express ourselves freely as long as we don’t libel or slander anyone – in which case there are Laws to deal with us.
Some of what we are free to do is to communicate our views to our elected representatives and government. When we try to get our views across on some national policy, government decision, or whatever, we are engaging in the activity called ‘lobbying” or “advocacy”. Most advanced democracies recognise the right of citizens to petition or lobby their government and to participate in the decision-making process.
When MP Pryce and others use the term “lobbyists” therefore, they have to make it clear who or what they are meaning – citizens exercising their constitutional rights, or, entities for hire that do lobbying on behalf of paid clients? These latter are usually private companies. For example, Manatt Phelps and Phillips which we heard of for the first time some years ago, advertises as providers of “legal services, advocacy and business strategies”.
As far as we know, Jamaica has no special registration requirements mandatory or otherwise, for such companies. This is a gap. If MP Pryce had been clear in his Motion that this is the gap he was proposing be filled there would have been no debating the need.
Dealing with professional lobbyists
In the US, the Lobbying Disclosure Act (1995) applies to lobbying at the Federal level only. It explicitly targets profit-generating companies or individuals that lobby officials as a source of their income. It requires federal lobbyists to register when they meet a financial threshold of US$3,000 in income from lobbying. Disclosure of the identity of the source of income is required at a threshold of US$5,000 and above for a specific lobbying activity, otherwise, companies need only provide aggregate information on the income received.
For NGO type groups registration and disclosure are only required if they employ an in-house lobbyist to lobby the Federal government, if such activity meets an expenditure threshold of US$12, 500 or more during a quarterly period. This means that the regular lobbying and advocacy efforts of most NGOs don’t require them to register or disclose anything.
Guarding Against ‘Tainted’ sources of funding
MP Pryce’s Motion recommends that the Parliament debates the appropriateness and need for legislation that “will, at the very least, require civil society groups, special interest groups and lobby groups – in keeping with emerging global, financial and ethical requirements – to vouchsafe and protect Jamaica’s democracy from any such compromise that could be caused by unknown or tainted sources of funds or hidden agendas”.
At a glance, the recommendation may sound reasonable but words like ‘hidden agendas’ are subjective and increasingly used in reference to those who support issues that the government and the majority of the public do not support. The term suggests there’s something sinister about the minority position being advocated or lobbied for and about those who support the position. What can a government do in response to information about the funders of minority or unpopular positions? Pass legislation that prohibits such funders? This has been done in some countries but not ones I hope Jamaica will rush to emulate.
Many are asking, well what about ‘tainted’ sources of funding? Existing Laws define tainted in terms meaning ‘illegal’. The Money Laundering Act and Proceeds of Crime Act exist to deter such activities and enable prosecution of anyone found to be accepting such funds.
The legal provisions have impacted the requirements of financial institutions too. Now if an organisation wants to open a bank account, there are exhaustive disclosure procedures.
So, listen everyone. No one is against civil society groups availing themselves of the benefits of some form of registration and we certainly stand for transparency, honesty and ethics in all civil society dealings.
We are not convinced however that the existing policy and legislative arrangements in Jamaica are inadequate where not-for-profit, civil society groups are concerned. We recognise that there’s a gap as it relates to the activities of professional, for- profit lobbyists that offer their services for hire.
The Parliament can certainly draw on the legislative models of other jurisdictions which have closed such gaps without imposing restrictive burdens on not-for-profit, citizens’ groups exercising their rights under the constitution of their country.