GOVERNMENT OF THE PEOPLE'S REPUBLIC OF BANGLADESH

THE LAW COMMISSION

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SUBJECT-

REPORT OF THE LA W COMMISSION ON THE BILL TITLED

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OLD HIGH COURT BUILDING DHAKA-1 000

DECEMBER 03, 2001

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On a reference from the Ministry oflJaw, Justice and Parliamentary Affai!"s, the Law Commission received a Bill titled "':f1~~
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consolidating four Acts, namely;

1. The Societies Registration Act, 1860; 2. The yoluntaty

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Social Welfare Agencies (Registration and Control)

Ordina~ce, t961 (Ordinance No :XLVI of 1961); 3. The Foreign Donations (Voluntiiry Activities) Regulation Ordinance, 1978 (Ol~dinhnce No- XLVI of ] 978); 4. The Foreign Contribution (Regulation) Ordinance, 1982 (Ordinance No XXXI of 1982).

After receipt of the Bi]l Research Officers of the Commission were assigned to examine it under the guidance of the Members of the Commission. During the process of the examination the Commission exchanged views with the persons representing Christian community, namely; Archbishop Michel Rezario, Bishop BD Mondo1, Denis De)ip Dutta and Sustinto Adhikaty. Besides the Commission held meetings wid, Associations of Development Agencies in Bangladesh and Credit and Development Forum. After completion of the process of discussion the Commission came out with the preparation of final repoti and its recommendations. The repoti has been prepared keeping in

view the protection of interests of all concerned invo]ved in the voluntary socia] activities. The Commission in its recommendations viewed that the Societies Regisn:ation Act, 1860 may not be repealed\while the three other Acts
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may be repeated paving the way for making the proposed Bi)) into Act of Parliament.
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Ikteder Ahmed .
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Secretary

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Report on the proposed bill concerning consolidation of 4 (four) existing laws on Voluntary Social Welfare Organisation.

This is a referenceby the Government under section6 (Ena) of the Law Commission Act, 1996. The relevant portion of the letter of reference addressed to the Commission by the MinistIy of Law, Justice and ParliamentaryAffairs underletter no.82 Ain Dated 13.2.2000 runs asfollows:-

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OUR VIEWS

The terms of referencerespectingamalgamationof the 4 existing laws hasreceivedour anxiousconsideration.

The laws soughtto be consolidated underthe proposed bill are:

1.. 2.

The SocietiesRegistrationAct, 1860; The Voluntary Social Welfare Agencies (Registration And Control) Ordinance,1961(Ordinance No. XLVI of 1961);

3.
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The Foreign Donations (Voluntary Activities) Ordinance,1978(OrdinanceNo. XL VI of 1978);and

Regulation

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The Foreign Contributions (Regulation) Ordinance, 1982 (OrdinanceNo. XXXI of 1982).

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The proposed bill hasbeenaimedat substituting all the aforesaid

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The preambles and the provisions of the respective Act and Ordinancesand also the definitions therein indicate that the purposesof the said Act and Ordinancesare not one and the same. The Societies Registration Act, 1860, was enactedfor enabling any seven or more personsfor associating themselves for any literary or scientific purposeor for suchpurposesas are mentionedin section20 of the Actl (seesection 1). Such associationswere not conceived to be dependentupon any internal or external donations. The purposesto be achieved by such associationshave been enumeratedunder section 20 of the said Act namely,"Societies established for the promotion of science,literature, or the fine arts, for instruction, the diffusion of useful knowledge, (the diffusion of political education), the foundation or maintenanceof libraries or readingrooms for generaluse amongthe membersor opento
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the public, or public museumsand galleriesof painting and other works of art, collections of natural history, mechanical and philosophical inventions, instruments, or designs". Such societies fulfilling the conditionsof the said Act areto be registered by the Registrarof the Joint stock Company without any option to reject registration. The words occurring in section3 of the said Act namely, "upon such memorandum and certified copy being filed, the registrar shall certify under his hand that the societyis registeredunderthis Act", amply clarify this point.
1 TheSocieties Registration Act, 1860.

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'f Welfare Agencies. The Voluntary Social Welfare Agency as defined in section 2(t) of the Ordinance is, "An organization, association or undertakingestablished by personsof their own free will for the purpose of rendering welfare servicesin anyone or more of the fields mentioned in the Scheduleand dependingfor its resourceson public subscriptions, donationsor Governmentaid." Section3 of the said Ordinanceprovides that, "No agencyshall be established or continuedexcept in accordance with the provisions of this Ordinance."Again accordingto section4 (2) of the Ordinance, "The Registration Authority may, on receipt of the application, make such enquiries as it considersnecessary,and either grant the application,or, for reasonsto be recordedin writing, reject it." This provision appearsto have been made obviously for regulating the social welfare organizations getting and depending on public subscriptions/ donations/government aid.

On the other handthe Ordinanceof 1961is aboutVoluntary Social

It may also be observed that a registered agency under this Ordinanceis enjoined to "maintain audited accountsin the mannerlaid down by the Registration Authority, to submit its Annual Report and audited accountsto the RegistrationAuthority and publish the samefor generalinformation, pay all moneysreceivedby it into a separate account kept in its name at such bank or banks as may be approved by the Registration Authority and hlrnish to the Registration Authority such particularswith regard to accountsand other recordsas the Registration Authority may from time to time require."

Sub-section(2) of section 7 authorizesthe RegistrationAuthority to inspectthe books of accountandotherrecordsof the agency.

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On the other handthe Ordinanceof 1961is about Voluntary Social

WelfareAgencies. The VoluntarySocialWelfareAgencyas definedin

section 2(f) of the Ordinance is, "An organization, association or undertakingestablished by personsof their own free will for the purpose of rendering welfare servicesin anyone or more of the fields mentioned in the Scheduleand dependingfor its resources on public subscriptions, donationsor Governmentaid." Section3 of the said Ordinanceprovides that, "No agencyshall be established or continuedexcept in accordance with the provisions of this Ordinance."Again accordingto section4 (2) of the Ordinance, "The Registration Authority may, on receipt of the application, make such enquiries as it considersnecessary,and either grant the application,or, for reasonsto be recordedin writing, reject it," This provision appearsto have been made obviously for regulating the social welfare organizations getting and depending on public subscriptions/ donations/government aid.

It may also be observed that a registered agency under this Ordinanceis enjoined to "maintain audited accountsin the mannerlaid down by the Registration Authority, to submit its Annual Report and auditedaccountsto the RegistrationAuthority and publish the samefor generalinformation, pay all moneysreceivedby it into a separate account kept in its name at such bank or banks as may be approved by the Registration Authority and filrnish to the Registration Authority such particularswith regard to accountsand other recordsas the Registration Authority may from time to time require."

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Sub-section(2) of section 7 authorizesthe RegistrationAuthority to inspectthe books of accountandotherrecordsof the agency.

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All these show that the purpose of the Ordinanceof 1961 is to

regulate the useandexpenditure of subscriptions anddonations received

by the agency. The Scheduleof the activities of the Voluntary Social Welfare Agency Ordinance, 1961, is also different from that of the Societies RegistrationAct, 1860,in character and nature.They are: "Child welfare, Youth welfare, Women's welfare, Welfare of the physically and mentally handicapped,Family planning, Recreational programmes intended to keep people away form ant-social activities, Social ed: cion, that is,

education of adults aimed at developing senseof civic responsibility, Welfare and rehabilitation of releasedprisoners, Welfare of juvenile delinquents,Welfare of the socially handicapped, Welfare of the beggars and destitutes, Welfare and rehabilitationof patients,Welfare of the aged and infirm, Training in social work and Co-ordinationof social Welfare agencies". The Foreign Do.."ations (Voluntary Activities) Regulation Ordinance, 1978 (OrdinanceNo. XLVI of 1978) was promulgatedto regulatethe receipts and expenditureof foreign donationsfor voluntary activities. "Foreign donation" has been defined in this Ordinanceas, "a donation, contribution or grant of any kind made for any voluntary activity in Bangladeshby any foreign Governmentor organisationor a citizen of a foreign Stateand includes, except in the caseof a donation madefor suchcharity as the Government may specify any donationmade for any voluntary activity in Bangladesh by a Bangladeshicitizen living or working abroad". This meansthat any donation,contribution or grant madeby any foreign government,org~nizationor any inc~ idual would
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be consideredas foreign donationfor the purposeof the Ordinance.But idonations made by Bangladeshipersonnel living abroad for purposes
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specified by the Governmentwould not be consideredas foreign

donation. These donations are obviously for voluntary activity of the welfare organisations. The voluntary activity accordingto this Ordinance is, "an activity undertakenor carried on by any personor organisationof his or its own free will to render agricultural, relief, missionary, educational, cultural, vocational, social welfare and developmental servicesand shall include any suchactivity asthe Government may, from time to time, specifyto be a voluntary activity." Section 3 of this Ordinance prohibits undertaking of any such voluntary activity as defined under section2(d) of the Act without prior approval of the Government. In this Ordinance there are elaborate provisions about governmentalinspection of documents and audit of accountsetc. There is also a provision for penalty for false declaration andcontravention of the provisionsof this Ordinance.

The Foreign Contributions (Regulation) Ordinance, 1982, (Ordinance No. XXXI of 1982)hasbeendesigned to put restrictionsupon a citizen or an organization in Bangladeshfrom receiving any foreign contribution without prior permission of the government.Receipt of contributionscontrary to the provisionsof this Ordinancehas beenmade penal offence. Foreign contribution has been defined as, "Any donation, grant or assistance, whether in cash or in kind, including a ticket for journey abroad, made by any Government,organisationor citizen of foreign state." Thus, there has been an extension of the meaning of donation occurring in the Ordinanceof 1978 by way of giving a new definition namely,of contribution.
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The above discussion makes it amply clear that the Societies

~~egistration Act, 1860,standsaltogetherapart,on a different footing and

objective from the Ordinances of 1961,1978and1982whicharemoreor

less allied and akin in nature.Therefore,we may leave out the Societies RegistrationAct, 1860, to operateindependentlyin its own field. This law has stoodthe test of time andhasbeenin force for over a century.

The Ordinances of 1961, 1978 and 1982 are all designed to regulate receipt of donations and contributions generally for voluntary welfare activities inside the country. The Ordinanceof 1961 conceives only of public subscriptions,donations or government aid while the Ordinancesof 1978 and 1982 have referenceto foreign donationsand contributions. It may be desirableto amalgamate thesethree Ordinances incorporatingall the aims and objects of the concernedsocietiesand the vital provisionsof the Ordinances in a singleAct.

A pertinent question might arise in this connection, namely, whethersection3 of the draft bill would militate againstArticle 38 of the Constitution.We have considered both Article 38 of the Constitutionand section3 of the draft bill. Article 38 gives every citizen a right to form associations or unions, subjectto any reasonable restrictionsimposedby law in the interestof morality or public order. Section3 of the proposed bill is to the following effect, " \!)I ~ ~ ~~~12f~ f*~~ ~~~ ~i&" b1'11~~1 ~$ ~~ ~ mf:fg - I!j~~~~ R~ ~'t ~ ~ c~b~1c~~

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of governmental supervision. There does not appear to be any bar upon

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the establishment of social welfare organizations in this provision. The provision only regulates the operation of the societies drawing upon donations and contributions from both local and foreign sources. This section does not seem to offend the provision of Article 38 of the Constitution.

However, the heading of section 3 does not appear to be in cons.;jnance with the contents of the section.

DISCUSSION ON THE PROPOSED BILL

In section 4 it has been proposed for appointment of three different authorities as registering authorities. This would likely to create avoidable complications and lead to unnecessary cumbersome procedures.

Registration and control of the organisations should be made easy, transparent and not create any hassle for them, discouraging submission to the law. We, therefore, suggestthat there should be a single registering authority which may be appropriately decided by the Government. As to proposed section 5 we find no objection to sub-section (1), (2) and (4) but with regard to sub-section (3) we ~~el~hat a time-limit should be set for disposal of an application for registration. Thus, sub-

section (3) maybe amended by way of addingthe words,"~O~

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We have examined section6 to section24 of the proposed bill.

These may remain as proposed.

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.So far as section~~ of the proposedbill is concernedwe suggest omission of the words, ~)"
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Act shouldremain in place andoperative. Sub-section(2) of section 25 doesnot seemto be well conceived because the scopeof the CompaniesAct, 1994,and that of the proposed bill are different. As to the schedule1 of the proposedbill, we suggest that the aims and objectspertaining to the SocietiesRegistrationAct, 1860, should be left out. The Voluntary Social Welfare Agencies (Registration and Control) Ordinance, 1961 (Ordinance No. XLVI of 1961), and the Foreign Donations (Voluntary Activities) Regulation Ordinance, 1978 (OrdinanceNo. XLVI of 1978) have got schedulesof their activities, while the Foreign Contributions(Regulation)Ordinance,1982,hasnone. So, we would suggestamalgamationand consolidationof the aims and objects of the Ordinancesof 1961 and 1978 in the scheduleof the proposed bill which, accordingly,may standasbelow:-

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In view of the above discussion,we answer the queries under referenceasbelow:-

ka) Yes. To the extentandmannerwe havediscussed and indicated above. kha) The bill shouldbe goodenoughin fulfilling its objectives. ga) The necessaryamendmentsand additions etc. have been indicatedin our discussion of the proposed bill.

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Recommendations
In the light of the above discussions our recommendations are as follows:1) The SocietiesRegistrationAct, 1860may not be repealed.

2)

The Voluntary Social Welfare Agencies (Registration and

Control) Ordinance, 1961 (OrdinanceNo. XLVI of 1961); The Foreign Donations(Voluntary Activities) RegulationOrdinance,1978(Ordinance No. XL VI of 1978); and The Foreign Contributions (Regulation) Ordinance,1982(OrdinanceNo. XXXI of 1982)may be repealedandthe proposed bill may be processedfor enactmentwith the amendments suggested in the body of the report above.

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(Justice AKM Sadeque) Member-2 ).1""1 '3. Il.,

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