Some inputs related to the current updated version of Law on Associations

Posted at: WEDnesday - 16/11/2016 13:29 - post name: Cộng tác viên

 

The draft Law on Associations issued on 10th October 2016 is the most updated version submitted by National Assembly’s Standing Committee for discussion and endorsement in the coming November. However, it is noteworthy that some important comments which were taken and updated into previous versions after a number of discussions have been changed dramatically in the current draft version (dated 16th September 2016). At the moments, National Assembly delegations from provinces and cities are starting their consultation processes which is open for organizations, individuals and associations.

      In order to provide objective and fair comments, it is very important to have an objective and fair approach. In the last time, it was said by a number of stakeholders, including mass media, the public and even National Assembly’s delegates that running the system of associations was very costly meanwhile their effectiveness was still uncertain. It was also said that the number of staff nominated for the associations was up to several dozens of thousands of people or state budget allocated to them was up to 14,000 billion dong. The values of real estates, headquarters, transportation means, working equipment and other work-related costs for the associations were also rumored to be more than 50,000 billion dong. Vusta.vn already published, although not timely enough,  an analysis of the distinction between the associations under Fatherland Front and those under the category of socio-political associations (Trade Union, Youth Union, Farmer Union, Women Union and veterans) with mass associations. Such “enormous” figures cited above are mostly related to those under the Fatherland Front and
5 socio-political unions and just a very small proportion (around 10%) were allocated for mass organizations despite of their huge number of members (around 500 national association members, thousands of provincial association members and dozens of thousands of association members at district and lower levels). In another hand, we must see that the evolution of civil societies together with the states and markets has created a “tripod” for a modern society to be fair and sustainable. It is normal to say that in the current world, everything has two sides. The positive side is that civil societies will foster the advancement of a society and the development of a nation. However there are also negative impacts. This is inevitable and we must cope with. This is the way that a nation can grow and does the administration system.  

          Below are some specific comments.

  • Scope of regulation (article 1); subjects of application (article 2) and rights to establish associations (article 3).
  • It was considered in previous draft versions that the scope of regulation did not include Fatherland Front and 5 socio-political associations and religious associations, but did include civil associations, Vietnamese citizens and legal entities related to operation of associations, Vietnamese overseas, foreigners legally residing in Vietnam, foreign enterprises in Vietnam, non-governmental organizations operating in Vietnam. According to the new version, Vietnamese overseas, foreigners legally residing in Vietnam, foreign enterprises in Vietnam, non-governmental organizations operating in Vietnam are excluded.

    The operation of the mentioned-above stakeholders in relation to associations and non-governmental organizations in Vietnam is an object fact which is reasonable with the trend of integration. Including this into the law does not contradict with the Constitution. If not being included into the Law on Associations, the fact should be regulated by a legal document or sub-law documents. And it must be very clear that the stakeholders will be governed by which legal document and at which level to avoid any confusion.

              2. State policies towards associations (article 7)  

    The policies are provisioned in the  clauses: 1, 2, 3 and 4 to aim for creating favorable conditions for associations to engage in the socialization of public services, implement projects, programs, provide budget for associations to implement the tasks nominated by the state competent authorities. To implement the policies in the reality, the state will have to translate them into specific mechanism and provisions. Therefore, the article should nominate the responsibility to the government for further elaboration.

              3.  Limited rights to establish associations (article 8)

    • State officials and those working in the military are entitled to create associations, register the establishment of associations or take lead the operation of associations only when being nominated by competent authorities (clause 3).

                + Those taking lead the operation of associations here refer to the ones in the Board of Directors (or Steering Committee) or refer to the Presidents, full-time Vice Presidents? For example, the steering committee of provincial Union of Science and Technology Associations normally consists of up to 30-40 members, including both state officials and leaders of association members. Besides that the Central Council of Vietnam Union of Science and Technology Associations has more than 200 members, including many state officials and leaders of association members. Should it be necessary for all the state officials to be nominated by competent authorities when they want to be members of provincial or central Union of Science and Technology Associations?

                + Personnel of associations, particularly the key personnel (Presidents, Vice-Presidents) are under the direction of Party’s Standing Committee of the same level but are voted by Congress. Therefore, if it is regulated that state officials need to be introduced and nominated by competent authorities when they want to be leaders, presidents, vice presidents of associations, the word “nomination” here will be easily interpreted as “oppression”.

    • Associations not in conjunction or integration with foreign associations, not receiving foreign fund; special cases regulated by the Government (article 5)

     In the reality, many domestic associations have been mobilizing and receiving funding sources not only from domestic individuals and organizations but also from foreign non-governmental organizations to serve for the purpose of science, social well-fare, charity, humanitarian aid to contribute to the socio-economic development at both local level and nationwide. Many associations have engaged into cooperation activities at regional and international level and are members of regional and international organizations. Such situation is quite popular. Therefore, in the previous versions, there was no provision on limiting the creation of legitimate income sources, legally mobilize and receive legal funds and aids from domestic or foreign individuals and organizations to realize their associations’ missions and purpose of operation. There was also no provision limiting their international cooperation or being a member of an international organizations provided that legal regulations must be complied with. However, the new version does limit the rights and just only “special cases” are “regulated by the Government”.

    This is the most pressing issue that needs to be thoroughly discussed by the National Assembly.

    4. Conditions to establish associations ( article 10), dossiers (article 11)

    - Rule of operation, document proofing the legitimate rights to use the headquarters and assets to ensure the operation of association are in place. 

    Rule of operation. The requirement for rule of operation to be in place is only suitable with independent associations. In the reality, many associations at local levels (in the same area) are members of a higher level association and they follow the same rule of operation that has been approved for competent authorities for the higher level associations. In the cases, only the rule of operation of the higher level association is required to be submitted.

    Conditions regarding headquarter and assets. Many associations (associations of fellow-countrymen, association of cock-fighting, association of bird-raising, ect) use their members’ house to be their office. Therefore how should the provision that
    “having document proving legal rights of using headquarter and other assets to guarantee the operation of association” be interpreted to avoid the hindrance of the such mentioned-above associations to be established?

    5. Rights of associations (article 22)

    - Rights to counsel and feedbacks. The rights were included in the previous versions of the law. However, the current updated version has deleted the provision and just only kept the rights “to provide comments and inputs in the legal document-making process, make proposals to competent authorities regarding the matters related to associations and operational areas of associations” (Clause 5). Providing counsel and feedbacks are more knowledge-required and more science-based than just providing comments and inputs. Actually, the functions of providing counsel and feedbacks of Vietnam Union of Science and Technology Associations have been included in the Decision 22/2003/QD-TTg and updated in the Decision 14/2014/QD-TTg of the Prime Minister.

    -    Rights to mobilize foreign funding sources and international integration (Clause 6). Comments were provided in the above part. The rights were included in previous versions but has been removed out of the current updated versions without reasonable justifications. Therefore, this should be more carefully considered.

      -  Rights to establish legal entities under associations. Under associations, there are both entities with and without legal status.

    + Legal entities. Legal entities under associations are mostly in the form of centers (with seal and account), self-reliant and not dependent on state budget or personnel. The key purposes of the centers are not for profit however, more or less they must generate profit for their existence and development. As a result, the fact that associations are not for profit but legal entities under associations are for profit is not a contradiction.

    + Entities under associations without legal status. There are district associations. Most of provincial or city-level associations have district associations (without seal, account and not entitled to sign any contract or civil transaction).

    As a result, the right to obtain legal status of associations should be amended as “rights to establish subordinate organizations with and without legal status”.

    It is very much expected such issues should be considered by associations to provide inputs at consultation conferences organized by respective provincial National Assembly’s delegations. Particularly, the paper looks forwards to be taken for reference by National Assembly delegates who are leaders of Union of Science and Technology Associations.

    Author: Phan Đức Ngữ (Son La Union of Science and Technology)
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