19 April 2021
The Commissioner for Voluntary Organisations
Block C, Beltissebħ
Sent by email: email@example.com
We have received your response to our judicial protest in which you say, with reference to your letter dated 26 February 2021, that you have taken no decision and you are inviting Repubblika to make such additional submissions it considers appropriate in the circumstances, if any such further submissions are at all necessary, following the judicial protest to which you have now replied.
We are pleased to note from your response to our judicial protest that you have not taken final decisions yet.
For the sake of clarity, we do not accept, clearly, that your letter of 26 February 2021 is anything other than a statement of a series of positions taken by you or by your lawyer.
In this regard, please note that:
- You state in your letter that our Statute “is in breach of the Voluntary Organisations Act”;
- You also state that “it is clear from the Statute of the Organisation that there is a strong element of private interest”;
- You state that “it is unequivocal that the organisation does not qualify as a voluntary organisation”;
- You state that “it also results that the said organisation is highly involved in political matters and is instigating a political propaganda and publicity”;
- Finally, you order Repubblika “to regulate itself and act in terms of law,” which must mean your position is that we are not, and order us “to amend the mentioned articles in the Statute, so as to avoid further legal proceedings which may be instituted in this regard.”
To add insult to injury, your counterprotest suggests that:
- the privileges extended to us by law are subject to us acting in a manner which pleases the government of the day;
- that we could choose to rid ourselves of your outrageous interpretations of the law and your undue interference by giving up the privileges offered to us and every other person in this country by the very law you are meant to administer for the public benefit and to good administrative standards;
- and that associating to promote democracy and rule of law, protesting publicly and expressing opinions and exposing abuse and corruption “has nothing to do with freedom of expression” and is indistinguishable from other voluntary activities less concerned with campaigning on issues of governance, public propriety and human rights. Your failure to recognise the difference is astounding and very worrying as you occupy a very sensitive post in our nation’s institutional set up.
The above having been placed on record, and we request that it be noted that we are very disappointed that a person in your position would resort to tactics such as these, we understand we are now to take your letter of 26 February 2021 as a set of charges of which we are still presumed innocent and on which you still have an open mind.
Otherwise, we would have to ask what is the use of the law requiring you to listen to representations when you have a concern on issues within your mandate and to which we are invited to give our response. That said, the tone of the letter of the 26 February demonstrates your, or at least your lawyer’s, frame of mind unequivocally.
As we have already had occasion to remind you, the Statute in its entirety, and including the articles your lawyer refers to in the letter of 26 February 2021, was reviewed by your office immediately after its adoption in January 2019. You made no adverse comments at the time.
We are not aware of any changes in legislation that justify any change in your views of the Statute. We reject the suggestion that the Statute of our organisation is in breach of the Voluntary Organisations Act.
To make sure that you have a clearly set out statement on all matters you raised in the letter of 26 February, and now the counterprotest, and you are given a clear understanding that we reject every accusation or allegation made, our response follows.
We confirm all we have submitted in our letter dated 6 March 2021 in reaction to your lawyer’s letter of the 26 February 2021 and in our protest dated 9 March 2021.
We will be using the same sub-headings used in the letter of the 26 February for our response for ease of reference.
Article 4 (f) of the Statute
There is no Article 4 (f) in our Statute.
The context of your letter suggests that you are referring to Article 4. (1) (vi) which states that “the Association asserts its right to seek and secure funding from legal sources, including individuals, businesses, civil society, international organisations, and inter-governmental organisations, as well as local, national and foreign governments.”
Whatever you may feel about the matter, and while we note that in your judicial counter- protest, you make no reference to this aspect of the matter, we reiterate strongly our assertion.
We do not believe that in and of itself the assertion is in contradiction with anything else in the Statute or the law and we certainly are not aware of having ever acted in a way that, materially or otherwise, prejudices the achievement of the purposes and objectives of the association. If you have any reason to believe otherwise, you have not stated it in your letter and have preferred to rely on generic, unsubstantiated, allegations.
In any case, why would you think that we would ever act to undermine our own purposes?
Your letter challenges us because we “legally seek funds from legal sources when such funds may be obtained by other means.” Our understanding of this statement is that you would have us source funds from illegal sources. Whilst in principle rejecting the suggestion we would be interested to learn which illegal sources you had in mind. Please do not waste your time or ours trying to re-interpret what you have written: sources that are not ‘legal sources’ can only be sources that are not legal.
Your letter challenges us because we “legally seek funds from legal sources when such legal sources are such as to burden the human and financial resources of such organisation beyond its means.” We do not know or even begin to understand what you are talking about. All funds raised by Repubblika are used to support its legitimate activities and we naturally act according to what we can afford to do. We understand our duty to operate within our means and have never acted in a way that might suggest to anyone that we would not be willing or able to continue do so.
Within our limitations we observe the sad events occurring in Malta, we bring wrongdoing to the attention of the national authorities and the institutions as well as the public, and we protest through the issue of statements and sometimes events.
Repubblika never had anything but voluntary human resources and it has never spent any of its financial resources as a cost of generating income.
For completeness, as you are aware, a few days before your letter of 26 February 2021 Repubblika engaged a single part-time employee for purposes of co-ordination and compliance, including with your own rules, but this cannot be what you are referring to as your letter came to us before even the first payment had been made.
You enquire “whether the organisation is paying exorbitant rates and expenses out of its funds when such purposes and objectives could be obtained by other means as mentioned above.”
The answer to your enquiry is no.
What kind of speculation are you (or your lawyer) engaging in? Your conduct appears to us to be inconsistent with your function under the Voluntary Organisations Act, to strengthen civil society by supporting and guiding, and as stated in article 9 (b) which guides you to support “the recognition of the contribution of voluntary action and voluntary organisations, as expressions of participation, solidarity, pluralism and subsidiarity, towards the continued enjoyment and enrichment of democratic life in Malta.”
Expressing participation, solidarity, pluralism and subsidiarity towards the continued enjoyment and enrichment of democratic life in Malta is exactly what we are doing our best to do, on occasion using the limited funds that we manage to raise. Instead, your lawyer accuses us of a breach based on nothing at all.
We, therefore, have to enquire what prompted you to make this enquiry. You are privy to our audited financial statements and have separately engaged your own auditors to audit
Repubblika’s finances. We feel we are entitled to know what raised your suspicion of “exorbitant rates and expenses” towards fundraising when our accounts show no such expense and your lawyer Maria Scicluna Criminale confirmed to me that the auditors found everything in order.
We take note of your extensive citation from the Act on private interests which do not feature in our organisation. We fail to see the connection between the unfounded allegations on fund raising and the provisions referred to and we remain satisfied that we are entirely compliant with its requirements.
In the circumstances, we can only express the feeling that the statement that we are in breach under this heading is only intended to hurt our reputation among a very politically divided population when we are doing our best to ensure that the very same population, you and us included, are assured a decent level of democracy and the rule of law through the exposure of abuse and demands that basic administrative propriety is observed in public administration.
The Statute of the Organisation – General Provisions
You state that “it is clear from the Statute of the Organisation that there is a strong element of private interest in the running of operations carried out.”
You quote extensively from the Second Schedule to the Civil Code citing what the law allows a private interest foundation to do. You then proceed to decide, or perhaps merely argue, that since Repubblika’s Statute empowers it to act in some respects in a way that it is permissible for a private interest foundation also to act, then it must mean that Repubblika is a private interest foundation and as such “does not qualify as a voluntary organisation.”
Repubblika is an association subject to the rules applicable to associations, and not a foundation. We fail to understand why a reference was made to foundations.
We also reject your lawyer’s argument as entirely fallacious. You would have to show that something in the Voluntary Organisations Act prevents us from being able to have in our Statute the provisions to which you are now objecting to, to be able to make the case you make. We submit that you will not be able to do so.
Nothing in those provisions in the Statute constitutes “private interest” as you appear to argue. For the avoidance of any doubt, which doubt only exists in your mind anyway, nothing in Repubblika’s Statute allows any person at all to have any interest, including but not limited to a financial interest, whereby that person would gain any form of benefit, privilege, exemption or advantage from Repubblika’s actions, fundraising or eventual dissolution.
There is nothing in your letter that can show that either the content of the Statute or any of Repubblika’s activities are in any way in breach of the Voluntary Organisations Act or any of the Regulations under it and therefore in any way justify your claim that Repubblika “does not qualify as a voluntary organisation.”
This is a serious allegation after your office enrolled Repubblika in the normal course of affairs and again confirms our impression that your office is trying to undermine the most basic application of the law to obstruct Repubblika in exercising its stated purposes. We consider this a serious abuse of administrative functions and purposes and request you to withdraw the allegations made.
We find disturbing the fact that you combine two statements into an entirely objectionable artificial construct with which to accuse us of being “highly involved in political matters” resulting in us being in breach of the requirement “not to be politically affiliated”. We unequivocally and without reservation reject your conclusion, it need hardly be added.
You go on to find us or accuse us of being in breach of the Act because you say we are “controlled by, related or affiliated to a political party” and that a political party “is the beneficiary of the purposes of the organisation, including the promotion of the specific vision, policies and goals of the political party or its candidates.”
Repubblika does not have a political purpose as defined in the Voluntary Organisations Act as it was not established to promote “the interests of a political party or a political candidate, whether at local, national or international level.”
The issues we deal with are not political purposes as defined in the Act (i.e., to promote the interests of a political party) but rather “social purposes” as defined by the Act, such as the promotion of human rights, conflict resolution, democracy and reconciliation.
We have reviewed the evidence you have produced to sustain your claim and we entirely reject the idea that your finding is justified by any stretch of the imagination, except perhaps an imagination fuelled by the poisonous theory that criticism of State policies or activities is in itself some form of abuse of the democratic process.
Worse is the suggestion that belief in democratic principles, the rule of law, the illegality of corruption and so on, should in anyway be considered as views voluntary organisations are forbidden from holding.
We would be interested to know, once you accuse Repubblika of being politically affiliated, whether you are able to indicate to which political party Repubblika is affiliated. You would then have to demonstrate that political party somehow has effective management or control of Repubblika.
We know that there is no evidence of this, simply because it is not the case that this is in any way a truthful representation of the real state of affairs.
After all, the desire for a genuine democracy and governance which is free of corruption and subject to the rule of law belongs to all shades of political opinion and is the monopoly of none.
What you allege has happened has no basis other than the accusations of the government and the media it controls, that use this accusation to discredit us and to crush the right of civil society of expressing any views on the spurious basis that any views civil society expresses must necessarily be handed to them by a political party.
You seem to be using the same tactic as the government in an equally disingenuous manner. But you are no ordinary government functionary. You are the Commissioner for Voluntary Organisations, the State institution created to ensure, independently and autonomously from the government, that as part of the voluntary sector we are able to freely exercise our democratic rights as part of civil society.
To this end the Voluntary Organisations Act expects “impartiality” from you and expects you not to place yourself in a position that might erode “public confidence” in your impartiality. Your actions in our regard are, for this reason as well, questionable.
Our Statute, you may have forgotten, as it is some time since you approved it, expressly states that we shall not endorse any political party or any political candidate for public office and we have never done so. This does not mean that we may not argue, campaign and express determined views on “civil rights, democratic life, the rule of law, free speech, personal freedoms, social inclusion, environmental conservations, economic sustainability and equality of access.”
These are matters on which we have strong views. We are constituted to promote these issues “by means of active participation in the national discourse and related educational, social and charitable initiatives.”
If you are now choosing to find our activities to be in breach of the Voluntary Organisations Act you will need to explain why you enrolled Repubblika in the first place when these objects, aims and purposes were expressly declared in Article 2 of our Statute that you reviewed before our enrolment. We do not believe that you are in a position to do so, it need hardly be said.
If you will forgive us a statement of the entirely obvious, there are three tests in the law to validate a voluntary organisation. Your arguments suggest that you believe we fail the first test of having any social purpose including that which qualifies as public benefit.
An organisation that campaigns for good governance, the rule of law, improvements to laws and to the Constitution, and the respect for human rights is by virtue of those campaigns an organisation with social purposes as defined in sub-paragraph (g) of the relevant definition and also qualifies as both having a public purpose and acting for public benefit for obvious reasons.
Conversely and implicitly an organisation with such purposes is the evident opposite of a “private interest” organisation and simply cannot be one.
Clearly, your reasoning collapses even only on the basis of the foregoing paragraph.
In any case, Repubblika was founded as an association by private writing and therefore cannot at law be arbitrarily reclassified as a private interest foundation that would be required by law ad validatem to be set up by public deed. Your letter, therefore, is only a very evident attempt to create an artificial argument for the invalidation of our existence altogether.
Moving on, if the country’s laws are improved or corruption in its administration is restrained, no member of Repubblika will enjoy a greater benefit from those facts than any other member of the public, including indeed, yourself.
As a second test, the Act rules out organisations with a “political purpose”.
Campaigning for civil rights, a campaign in any format which may be appropriate and affordable, is not a “political purpose” as defined in the law and you are invited to revise your interpretation, which if maintained would have the effect of banning Repubblika, which we choose to believe is not what you intend.
In your response to our judicial protest, you insisted that our existence and our right to express the views that we do express are not dependent on enrolment and that since our enrolment is voluntary this requires us to submit ourselves to what the law requires from enrolled organisations. Clearly, this is a statement of the obvious, with which we find no reason to differ.
However, we need to make a further statement of the obvious. We enrol as a voluntary organisation because that is what we are. Voluntary enrolment demonstrates our organisation’s willingness to be transparent, to submit our financial activities to independent scrutiny and to assure our donors and supporters that we are acting lawfully. Our voluntary enrolment however is not a license for you to abuse your power and to disseminate misinformation and baseless accusations against Repubblika and the volunteers and the organisation to which they choose to belong. Once again we remind you that the Act expects impartiality from you and expects you to act in a way that maintains the public’s confidence in that impartiality.
The “privileges” that come from being an enrolled organisation that you refer to in your counter- protest are ours by right once we enrol, and not a result of the grace and favour of anyone, and these rights include access to Maltese governmental and European Union and Council of Europe funding intended for initiatives that fit squarely in our objectives and that we would be prevented from accessing if we are delisted.
The EU provides specific and direct grants for civil society for projects with a European dimension with a view to promoting the rule of law. That is because as the European Commission’s Rule of Law Report 2020 states “the rule of law requires an enabling ecosystem based on respect for judicial independence, effective anti-corruption policies, free and pluralistic media, a transparent and high-quality public administration, and a free and active civil society. Preventive policies and grassroots campaigns raise citizens’ awareness and maintain respect for the rule of law high on the agenda. Investigative journalists, independent media and the scrutiny of civil society are vital to keeping decision-makers accountable.”
If the intentions manifested by you in your letter to us and counter-protest are allowed to be taken forward, you will effectively ban Repubblika from contributing to the fulfilment of this fundamental function of democracy.
Indeed, in this context, it becomes impossible to continue to consider enrolment as voluntary, if the implicit consequence of not enrolling is being prevented from accessing funding explicitly intended to support civil society organisations with our purposes. In effect, the rules make enrolment critical for any organisation intending to raise funds to undertake activities such as ours. If we cannot, in practice, opt out of enrolment, you cannot opt out of your obligation to protect our right to exist. And to do so impartially as required by the Act.
We will not allow the perverse misinterpretation of the law that arises out of the correspondence you started on 26 February 2021 to be used to crush us out of existence and we will take this matter to the highest levels possible.
We would be grateful if you would spare us the argument that delisting us would not have the effect of banning Repubblika. In practical terms we would be unable to solicit funding and donations in order to deliver our work as an organisation. This amounts to a ban on organisations whose views displease you and or the government to which your actions have rendered you servile.
The Council of Europe provides us with guidance on these matters as non-democratic states have sought to suppress civil society and voluntary organisations in the manner you are adopting.
We draw your attention to Recommendation CM/Rec(2007)14 of the Committee of Ministers to member states on the legal status of non-governmental organisations in Europe adopted by the Committee of Ministers on 10 October 2007 at the 1006th meeting of the Ministers’ Deputies. It says, inter alia:
- that NGOs should enjoy the right to freedom of expression and all other universally and regionally guaranteed rights and freedoms applicable to them;
- that the legal and fiscal framework applicable to NGOs should encourage their establishment and continued operation; and
- that NGOs should be free to undertake advocacy on issues of public debate, regardless of whether the position taken is in accord with government policy or requires a change in the law.
We also draw your attention to CM(2017)83-final, the guidelines for civil participation in political decision making, adopted by the Committee of Ministers on 27 September 2017 at the 1295th meeting of the Ministers’ Deputies.
The guidelines consider, inter alia:
- that participatory democracy, based on the right to seek to determine or to influence the exercise of a public authority’s powers and responsibilities, contributes to representative and direct democracy and that the right to civil participation in political decision-making should be secured to individuals, non-governmental organisations (NGOs) and civil society at large;
- that conditions for civil society participation include the obligation of member states to ensure the recognition and protection of and support for the role of civil society in a pluralist democracy, its functions in terms of advocacy and monitoring of public affairs and its contribution to building a diverse and vibrant society;
- that member states ensure the respect of independence of NGOs whether their opinions are consistent with those of the public authorities or not; and
- that public authorities should seek to avoid unduly burdening individuals, NGOs and civil society at large in the course of civil participation and may take appropriate action to facilitate participation.
We also draw your attention to Resolution 2096 (2016) of the Parliamentary Resolution of the Council of Europe on “How can inappropriate restrictions on NGO activities in Europe be prevented?” The Resolution calls on Member States, inter alia:
- to refrain from adopting any new laws which would result in inappropriate restrictions on NGOs;
- to ensure that NGOs are effectively involved in the consultation process concerning new legislation which concerns them and other issues of particular importance to society; and
- and to ensure an enabling environment for NGOs, in particular by refraining from any harassment (judicial, administrative or tax) and smear campaigns.
We are not facing a new law, but are seeing the law being interpreted in a manner that is not impartial and is willing to interfere with a voluntary organisation in a manner that prevents it from acting within the minimum expected in a democratic society.
We are indeed being confronted by a perverse and up-side-down interpretation of the law set- up to protect our existence and our right to collectively express views that are inconsistent with the views of the country’s regime. We are seeing an attempt for the law that exists to protect us to be used instead to seek to abolish us or in any case inhibit us from fulfilling our purposes.
Please also bear in mind, as you remind us in your letter of 26 February, that should you effectively delist us you are empowered “to order the organisation to desist from carrying out any further activities.” You may argue that that would not prevent us as individuals from expressing our views. But it would prevent us from organising, acquiring and mobilising the funding we would need to do our job collectively and effectively.
It would also infringe on the rights of our donors and supporters to contribute to our campaigns and to express their views by means of providing us with funding.
The evidence for your argument about our political activity includes a newspaper report that Repubblika made written submissions to the independent inquiry into the assassination of Daphne Caruana Galizia. The evidence you produced does not suggest that you are objecting to anything specific contained in the submissions but object, rather, to the submissions having been made at all.
The fact that you, therefore, are of the view that submissions to the Inquiry into the killing of Daphne Caruana Galizia amount to the “promotion of the interests of a political party or a political candidate” demonstrates to us that you not only wilfully misunderstand the purpose of Repubblika but wilfully and entirely misunderstand the purpose of the independent Inquiry.
In this context, whilst rejecting in the most categorical terms possible the idea that having made submissions to the Inquiry justifies our delisting and abolishing, we take this opportunity to express our heartfelt relief that you and your lawyer Ian Refalo who signed your counter-
protest were removed from the short-list of people nominated to sit on that Inquiry. It does not bear thinking about what the result of your attitude towards the Inquiry and its purpose would have been.
Since your judicial counter-protest assures us you have not taken any decision we are now to interpret the reference to your power to suspend or cancel our enrolment as a mere intimation of your intention or, to put it in simpler terms, a threat.
If you intend to delist us, please state that without any further ambiguity, so that we can exercise our rights at law in a timely fashion.
In practice, if we are struck off your list, we would be ineligible for any public, including EU and Council of Europe funding; the administrative burden of raising funds under the Public Collections Regulations would reduce our ability to raise funds and exclude fund-raising in emergency situations; and our status would prevent us from using banking facilities for our operations. In effect, therefore, to fulfil our calling and our purpose as our Statute requires us to, our continued enrolment is critical and de-listing is an implicit banishment.
In the context of critical enrolment in order for our 700 plus members to associate in pursuit of their objects and in fulfilment of our function in a democracy as explained in the Council of Europe and European Union documentation cited above, your actions can either fulfil Malta’s obligations to respect democratic life or act against them.
You cannot base your decisions on whether you like or dislike the issues of democracy and the rule of law that we choose to address or the words and methods we use to express our opinions on them. And your decision must be impartial and confirm the public’s confidence that in exercise of your functions you act independently of the government and without concern that our activities might displease or be inconsistent with the views of the government.
This, too, is a matter of democracy and the rule of law.
Moving on, while we appreciate the extensive citation of the procedure that would apply should you decide to suspend or cancel our enrolment, allow us to refer to the grounds for our threatened suspension that you list and which we must assume you are considering applying to us:
19. (2) (a)
We are indeed pursuing the purposes stated in the Statute and we are therefore not misleading the general public. Nothing in your letter of 26 February may give anyone a reasonable justification for believing otherwise.
19. (2) (c)
We are not aware of having conducted any unlawful activity whatsoever. Nothing in your letter of 26 February may give anyone a reasonable justification for believing otherwise.
19. (2) (e)
We are not misapplying funds in any way. Nothing in your letter of 26 February may give anyone a reasonable justification for believing otherwise.
None of our funds have been spent at any time for anything but a public purpose. No member of the executive committee or member of Repubblika has at any time since the inception of the organisation been compensated in any way for any activity. No one in the organisation reserves any private interest or any control beyond votes they are entitled to as regulated in the Statute on the one-member-one-vote principle. No one in the organisation is entitled to receive any funds or any assets whether that is in the Organisation’s lifetime or at its dissolution.
We therefore reject your right to apply the above provisions of the law.
The response in your counter-protest in the sense that “this is not a matter of free speech” confirms to us that indeed it is. It is not for you or the government to rule on what voluntary organisations are free to say. It is however for you to protect voluntary organisations in the
fulfilment of their mission. Our mission requires us to be vociferous and critical of outrages of human rights.
We must therefore protest your actions that are an outrage of our rights to association and free expression. By seeking to stifle Repubblika, you are in effect stifling criticism of the government, which in a democracy is unacceptable. Your position, being unfounded at law, is anti-democratic, abusive and unacceptable and you are invited to withdraw your letter of 26 February 2021 without further delay.
We reserve the right of taking further legal action to protect Repubblika from oppression and censorship.