NGO Repubblikka has called for there to be oversight over the Office of the Commissioner for Voluntary Organisation by the Malta Council for Voluntary Organisations, mentioning issues it had in the past.

This emerged in a position paper it issued regarding the public consultation document titled "Bl-oħla dawl libbist" published by the Ministry for Inclusion and the Voluntary Sector.  

"Repubblika was founded in January 2019 and it was enrolled for the purposes of the law within a few months of its foundation. It was set up by 'individuals who act independently of government and other interests and seeks to promote civil rights, democratic life, the rule of law, free speech, personal freedoms, social inclusion, environmental conservation, economic sustainability and equality of access, by means of active participation in the national discourse and related educational, social and charitable initiatives.' A few months into our existence the Commissioner for Voluntary Organisations started procedures with a view of dissolving Repubblika on the basis of preliminary findings by the Commissioner that Repubblika was conducting the activities of a political party. The evidence for these findings were copies of articles written by members of Repubblika that contained opinions that were critical of the authorities. The proceedings were subsequently terminated unilaterally by the Commissioner without explanation." It said that, "this unlawful process for dissolution was not ordered by the incumbent Commissioner, but by his predecessor."

The NGO said that the powers of the Commissioner for Voluntary Organisation are an existential threat to voluntary organisations. "The position of Commissioner is filled at the pleasure of the authorities who may be motivated by their discomfort at the policies and views expressed by organisations that are regulated by the Commissioner."

It said that "the threat of use or misuse of the Commissioner's power has a chilling effect on the free and unhindered exercise of the rights to free association and free expression and on the fulfilment of the role of voluntary organisations in a democratic society."

"We are proposing however the inclusion of a new safeguard at law applying models available in other EU member states, and that is that in parallel with the Commissioner for Voluntary Organisation the law provides for an alternative judicial path for the registration of organisations."

It proposed that: New organisations seeking enrolment are given the opportunity to choose between an administrative registration with the OCVO or a judicial registration in the civil court; Organisations that are already enrolled are given the opportunity at the time of their next reporting date, to file in court an application to have their enrolment recognised as having been approved by judicial order at the time of first registration; Organisations that have been enrolled (or later recognised) by the judicial process may only be dissolved by judicial process.

Protection of identity of members

The NGO said that while it is reasonable that the identity of administrators of NGOs is recorded and made publicly available, "membership in advocacy organisations is an expression of an individual's rights to free association and free expression and should never be put at risk of retaliation by the authorities. It should therefore be expressly stated at law that NGOs are never forced to reveal the identity of their members to the authorities. Whilst we insist on the protection of the right of people to support and join an organisation without fear of retaliation, we are also acutely aware that people in official positions must owe their loyalty to the public and not to some organisation they belong to in secret. We clarify therefore that we do not endorse membership of people occupying public positions in secretive organisations such as freemasonry and will support measures that oblige people in official positions to disclose any such memberships."

Oversight of the conduct of the Commissioner

The NGO said that while it appreciates the need for a regulatory entity "we feel it is poor governance practice for the competences of the Commissioner to be free of any management and policy oversight which is also free of ministerial interference."

It again cited issues it had with the previous commissioner.

"We recommend that the Malta Council for Voluntary Organisations, which is to be composed of persons elected from all the identified categories of NGOs, including Advocacy Groups, act as an oversight committee for the activities of the Commissioner. The Commissioner is to periodically report to the Council on their activities, and that reporting must include actions taken by the Commissioner against an NGO and motivations for those actions. Though we accept that executive authority remains with the Commissioner, it is our view that when acting against the advice of the Council, the Commissioner must publish the objections they received and the reasons why they decided to overrule them.

"Similarly we feel that the investigative powers of the Commissioner without any form of external oversight that currently include the power to access any individual's bank accounts, or data held in confidence by other entities, should be contained to the normal standards that prevent abusive intrusion in the right of every citizen to privacy. Participation in a voluntary organisation should not in itself be an implicit renunciation of the rights that protect every citizen. It is our view that the Commissioner should only be able to exercise these powers on the basis of probable cause and subject to judicial oversight. An individual's bank account, for example, should only be accessed if a judicial warrant is issued on the basis of reasonable suspicion of crime. We welcome the initiative of the incumbent Commissioner who, we are informed, introduced administrative procedures to restrict the use of this power to access personal bank accounts of volunteers and activists. However this is insufficient as it relies on the restraint of the Commissioner who happens to be serving at any time."

Statutory participation in consultative and legislative processes

Repubblika said that it should be a requirement at law for the authorities to substantially, materially, and effectively consult with advocacy NGOs in matters of policy in which they register their interest in a publicly available registry. "There should also be a Parliamentary register of advocacy NGOs that express interest in policy areas and are allowed to participate in mandatory consultation stages held in public in between readings of a bill concerning their area of interest."

Public Funding

Among other things, the NGO also addressed the issue of public funding.

"While we appreciate the funding programs administered by the Council, it is our view that the role of the non-profit sector (whether social or political) has a far greater potential than is currently recognised. For this potential to be fulfilled, organisations must function with autonomy and should not therefore function in a way that requires them to seek to remain in the good favour of ministers. They should also enjoy a measure of financial security that gives them the resources to focus on their activities and to bridge any gaps between project-based funding opportunities." For this purpose it proposed a number of measures for the authorities' consideration.

It said that in order to protect the independence, autonomy, and collective credibility of voluntary and not-for-profit organisations, "we feel it is imperative for safeguards to be introduced that ensure that the vehicle of an NGO is not used by the government as a way to avoid rules of transparency, procurement, and disbursement that would normally govern public authorities. For this purpose we believe that NGOs whose income, calculated over a period of time such as yearly, has a greater share than 50% which is obtained from government (including Local Councils, excluding inter-governmental or international entities) on a discretionary or unilateral basis and outside competitive schemes, are to be considered at law as a part of the public sector. They are to be identified as such and they are to be subject by all the rules of transparency, non-discrimination, procurement and disbursement that are applicable to public entities or entities in which the government enjoys a controlling interest."

"While NGOs who do not provide services depend on irregular funding from members and donors, they also mobilise to acquire project funding, typically from the EU. Project-based funding provides important opportunities of growth for NGOs but they come with problems: 1. Applications are complex and require resources and experience which need funding in and of themselves. It is very hard to climb the first rung of the funding ladder; 2. Project funds are allocated according to the criteria set by the donor and are often lateral to the core purpose or intention of the organisationl; 3. Project funds are, by definition, finite which means that all employment generated by project funds is definite and insecure. This discourages people from taking mid-career commitments to EU-funded projects operated by NGOs; 4. Project funding largely excludes coverage for ongoing activities and most overheads," the NGO said. To address these issues, NGOs need access to consistent streams of funding that allow them to ramp up their capacity, it said.

"Taxpayers should be given the option to add to their income tax contributions a percentage to be added to their tax dues to be allocated for not for profit activities provided by the third sector. In other EU member states this normally ranges between 0.8% to 1.5% which are added to the tax return on a purely voluntary basis." The funds, it said, would be administered by a representative entity of the voluntary sector and would be dedicated to the funding of overheads and ongoing activities of the eligible organisations. "Funds would be apportioned to the different categories of organisations including, but not limited to, advocacy groups."

EU funds

Access to EU funds requires NGOs to demonstrate the capacity to put up their own percentage contribution which, depending on the project, ranges from 10 to more than 50% of the project cost, it said. "We propose a National Fund to match advocacy projects approved by EU institutions for advocacy NGOs. There would be no separate evaluation of eligibility of the projects and those projects that have been approved by funding by the EU have their contribution funded by the National Fund."