This is just to inform you that I am (as a member of the Chapters Committee) currently reviewing your by-laws. I am deeply sorry about the delay, which is obviously related to the selection of new members to the Committee (including myself). I will inform you when I am done—it shouldn't take longer than a couple of days, and I hope to have it finished at the end of the weekend, or Tuesday at the latest. Thanks, odder (talk) 05:55, 16 March 2012 (UTC)
- Thank you for your patience; as promised, I have prepared my comments, and they have been reviewed by another member of the Committee and are outlined below. odder (talk) 00:12, 21 March 2012 (UTC)
- 1 Questions and remarks by Tomasz
- 1.1 General remarks
- 1.2 General provisions
- 1.3 Goals and subject of the Public association
- 1.4 Rights and obligations of the Public association
- 1.5 Property of the Public association
- 1.6 Members of the Public association...
- 1.7 Withdrawal from the membership of the Public association
- 1.8 Control bodies of the Public association
- 1.9 General Meeting
- 1.10 Board of the Public association
- 1.11 Executive Secretariat of the Public association
- 1.12 Audit commission of the Public association
- 1.13 Making changes, liquidation and reorganisation
- 1.14 Open questions
Questions and remarks by Tomasz
Thank you for submitting the bylaws! I have gone through them in the past few days, and will be placing my remarks and questions below. I have tried to identify all possibly controversial points (both from a legal and a Wikimedia-related point of view), not knowing the exact laws of the Republic of Kazakhstan (except the Law on Public Associations which I read in English), so if some of the points are required by your local law, please let me know and of course ignore my remarks on them.
I have also tried to identify how important those remarks are to me. Minor indicates that it is something that caught my attention, but will not have a major impact, and you are free to do whatever you want with that remark. Medium means that I think it is important for you, but it is not critical — if you have good reasons, please state them and ignore the comment further. Important means that I find the problem important, and they may be critical (of course if it is a legal constraint, so be it).
This will be quite a thorough and long analysis, so please accept my apologies for a start ;-) Thank you for your work; I'll be looking forward to hearing from you! With kind regards, odder (talk) 00:12, 21 March 2012 (UTC)
- (Mediate) In my feeling, some of the points included in the current draft of the by-laws are a bit too long; for instance, it would be nice to have points 6.3, 9.1 and 10.2 (there are some other, too) split into a few smaller points, just as you did it with section 14 ("Liquidation and reorganisation of the Public association"). I had a look at the Law on Public Associations and see that this is a usual behaviour in Kazakh law, but having more smaller points (and hence, a clearer design) makes the by-laws easier to change and understand for non-lawyers.
- Agree, split points to shorter sentences
- (Mediate) The goals and the subject of the chapters are especially long. I can see the draft has been heavily influenced by the by-laws of Wikimedia Russia, but you might want to have a look at a more general approach, visible in the by-laws of Wikimedia Deutschland or Wikimedia UK's Articles of Association.
Such a detailed approach was used by several of the chapters, so there is nothing wrong with it, just wanted to let you know about the other possibility — you might want, for instance, to have a look at the by-laws of other Kazakh non-governmental organisations for comparison. Plus, I have some detailed remarks about some of the points, and those will follow below.
- (Minor) 1.2: "The Public association (...) is established by fully legally capable individuals" — does the Kazakh law allow not fully legally capable individuals (for instance, people between 16-18 years of age, or whatever is the age of majority in your country) to establish the Association, too, for instance with permission from a parent or a legal guardian? If not, does it allow them to join the Association with such a permission, and will you be willing to accept such requests? I can imagine that there might be plenty of under-age Wikimedians willing to be part of a local Wikimedia chapter, and it would be sad not to accept them if the law allows it.
- Accroding to the legislation it can be citizens of the Republic of Kazakhstan. I've changed fully legally capable to sui juris. So, any person
- (Minor) 1.4: Is it required to have the exact address of the Association's seat included in the by-laws? Changing the address would require changing the by-laws, and possibly even calling a General Meeting, so if you could avoid having it here, I would suggest you to do so :)
- According to the rules of registration legal entity applicant must submit the Agreement for renting the office which will proof organisation's legal address. It was right mentioned that any changes in address, name or goals will need to change the Statute and submit registrations documents again.
- (Medium) 1.8: This point states that members shall not bear responsibility under the Public associations' obligations. On the other hand, point 10.2 states very clearly that members of the Board (...) shall bear individual and collegial responsibility. Could you please clarify what is this responsibility exactly about, and why there is a difference between the regular members and members of the Board in that case? I am afraid that bearing individual legal responsibility for the actions of the Board might be at least frightening for some people and would not allow the Board to make certain decisions.
- This point means that individual member can't be responsible for the actions or decision made by the legal entity with third parties, unless he is in charge. So, the Members of the Board are responsible for all decisions and action, especially regarding the interaction with the third parties (counter partners) and state bodies (Tax inspection, Labour Inspection and etc.)
- (Medium) 1.11: This might be a Kazakh specific, but I am wondering whether this point doesn't reduce the operation of the Association to Almaty only? The Association should operate in Kazakhstan as a whole, and if this point reduces that, it shouldn't really be there. Of course, feel free to ignore this remarks if this is required by law.
- According to the legislation of the RoK, there may be three types of organization National, Regional and Local. In order to get National status initiative group suppose to proof that they already have representatives in more than the half of the province and two large cities (more than 9 regions). Same time, local status do not restrict the operation area and allows to work in Kazakhstan
Goals and subject of the Public association
- (Important) There is no mention of the words open or Wikimedia in the goals of the Association at all. As correct as they are (though a bit long, see above), the goals should—in my feeling, and that's a usual thing in the by-laws of the existing chapters—include a reference to the Wikimedia movement or the Wikimedia Foundation; see the aforementioned by-laws of Wikimedia Deutschland as a good example. I can see that this, too, has been influenced by the by-laws of Wikimedia Russia, so if your situation is similar to theirs, please let us know.
- added some references to Wikimedia Foundation
- (Minor) 2.1.5 (the last bullet point): This sounds too political for me. I know that some of the existing chapters, including Wikimedia Russia (and the Wikimedia Foundation, too) have been involved with lobbying in the past few years, but having such a clause plainly included in the goals of the chapter might be just too political.
- I believe it is standard practice in Kazakhstan. As the NGO WMKK can participate in discussion regarding to knowledge, education, open licence, copyright etc. So, as the active organization it suppose to submit own proposals and actively participate in promotions such kind of activities, ideas of its members according to main goals.
- (Medium) 2.2.3 (the third bullet point): I am not sure whether "assistance in acquisition of rights" should be a goal of a Wikimedia chapter. Paying for stuff, including copyright, does happen in the Wikimedia movement, but has never been a goal on its own — and paying for knowledge is rarely seen as good by our non-paid volunteers. I see that this has been copied from the Russian by-laws — but do you think that you will be able and willing to buy out rights to some works and publish those works under free licences? If this is not planned, you might simply remove this point; sometimes less is more :)
- This point included in order to have legal base to promote open and free licenses in Kazakhstan. And it is not limited only to buy, it is also possible to negotiate with the authors to donate pictures, movies, texts under the free licenses.
- (Minor) 2.2.9 (the ninth bullet point): This seems to be already included in point 2.2.4 ("providing information to the public about its activities through information literature, mass media and other tools for public awareness"), and could possibly be removed.
- It is not very crucial or critical point to change. According to the legislation of RoK to create, found, take shares in media it should be mentioned as the goal in Statute.
- 2.2.10: I have two remarks to that point:
- (Important) This seems to be a translation-related issue: who is meant by "their own" in "protection of rights and legitimate interests of creators and consumers of Knowledge through development of their own programs"? If these are the creators and consumers of "Knowledge", this sound too dangerous from a legal point of view, as it might suggest some sort of relation between the creators and the Association, and hence possibly even a legal responsibility of the Association.
- Accepted. This point has been deleted
- (Important) The second part of the sentence sounds even more dangerous and political to me than the first one; if the Association is going to represent its members before the legislative, executive and especially judicial authorities, this might—again!—suggest some sort of legal responsibility for the actions of its members. We have already seen our chapters or Board members being sued in very weird circumstances (this happened in Italy and in Poland, for example), so avoiding ambiguity in those matters seems especially important.
- Accepted. This point has been deleted
- (Minor) 2.2.11 and 2.12: These seem excessively political for me, as well, just as the few points mentioned above; I can't see any relation between those two points and the Wikimedia movement in general except that we do sometimes lobby in very specific matters (copyright law, licences, etc.).
- It is standard practice for the NGO to suggest, offer alternative ideas, plans or programs to improve the activity of state bodies related to the goals indicated in Statute.
- (Medium) 2.2.13: Could you please clarify the meaning of "social" in "providing members (...) with social and other assistance in carrying out its activities"? Most of the time, the existing chapters support their members and employees with only financial help, for instance by paying for their trips to conferences or refunding other expenses borne by them with regards to Wikimedia-related activities.
- According to the legislation "social" means help for particular needs. It can be financial support for travel expenses, scholarships or support by providing some materials (books, papers, publications etc.)
Rights and obligations of the Public association
- (Minor) 3.1.2: I am not sure what you exactly mean by clubs and schools here. Do you really plan to open a Wikimedia school in Kazakhstan? And if not, why is this point included here? :)
- Done. Deleted
- (Minor) 3.1.4: This seems excessively political, as well, see #2.2.11 for a reference. Plus, what do you exactly mean by "proposals"? I would greatly appreciate some explanation with regards to this point.
- Done. Deleted
- (Minor) 3.1.8: There is apparently a problem with translation; I haven't been able to properly understand the meaning of this point, but it seems to be somehow related to #2.2.11. Could you please have a look at the translation and describe the intentions here? Thank you!
- Done. Deleted
- (Minor) 3.1.9: Does "economic" equal "entrepreneurial" here? A better translation would be appreciated, too.
- Done. Deleted
- (Minor) 3.1.11: This might seem a silly question, but why would the Association need any land at all? :)
- Done. Deleted
- (Medium) 3.1.12: I am especially interested in the meaning of "scientific research" here. Do you truly plan the Association to start any scientific studies, and what would those be about? Furthermore, are there any plans for the Association to produce anything (for instance, give-aways, goodies, or such)? And what are the plans for the trade, if any? If they are not planned, I think you could simply remove them from the by-laws without any losses.
- Done. Deleted
Property of the Public association
- (Medium) 5.2.1: This is very much related to point 3.1.12, seems too economical and not very Wikimedia-related; furthermore, running lotteries and auctions rather contradicts the usual behaviour of existing Wikimedia chapters, for instance giving away (as opposed to selling them on auctions) free goodies like T-shirts, lanyards, etc.
- Done. Edited. Deleted lottery and auction points
Members of the Public association...
- 6.2: I have two remarks to this point:
- (Minor) See above for a question related to non fully capable individuals and the possibility of them joining the Association;
- Done. Edited
- (Minor) This will be a very detailed remark. In logic and mathematics—and very often in law as well—there is no need to use "and/or"; a simple logical disjunction ("or") does the job. If this is a translation-related issue or a specific of your local law, please feel free to ignore this comment.
- Done. Edited
- (Medium) 6.3: "Voting via electronic communication facilities is allowed" — this is often a somehow controversial point in many countries; could you please make sure that this is legally possible in Kazakhstan? And I am not really sure what is this sentence related to; is it intended to specify that voting via electronic communication is allowed in all votes in the Association, or only in those related to accepting new members? Splitting the point into two smaller ones would definitely help in clarifying that.
- Done. Edited. Voting via electronic communication is not allowed
- 6.4: I have three comments to this point; these follow below:
- (Important) 6.4.6: I am sorry, but this is quite unacceptable for me; I don't feel that a Wikimedia chapter should give any financial or material help to its members, or any recommendations for employment (except those given to its employees) — it doesn't seem related to the goals of the Wikimedia movement at all.
- (Minor) 6.4.8: It feels obvious to have the right to have an opinion which differs from those of the governing bodies, so I would suggest removing that; but if this is anyhow required by your local law, feel free to ignore this remark.
- (Minor) 6.4.9: I haven't been able to properly understand the meaning of "after accomplishing material and other obligations before the Public association"; could you please have a look at the translation and describe the intentions here? Thank you!
- 6.6: I am concerned by the use of the word "obligation" (or "obliged", to be exact) here, especially with regards to points 6.6.3, 6.6.4, 6.6.9 and 6.6.10:
- (Important) Taking part in the activities of a Wikimedia chapter (6.6.3 and 6.6.9) should—in my feeling—be merely a right, not an obligation — this could potentially mean that there won't be enough people willing to join the Association due to this obligation. Furthermore, with an obligation usually comes a sanction — what is the sanction here? Are you going to expel those members that do not take an active part in the activities of the chapter? I can clearly see that this is included in point 7.1, but would just like to make sure this is really the case.
- (Important) 6.6.4: Attending an AGM (just like taking part in the activities of a Wikimedia chapter) should be rather a right, not an obligation, so please consider removing or rewording this point.
- (Important) 6.6.5: I am concerned about the automatic cancellation of one's membership in the Association. Point 6.3 (first sentence) states that one can only join the Association by a decision of the Board, so it would be obvious that one can be only removed by a decision of the Board. This might also seem quite tricky from a legal point of view, because the exact moment of cancellation is not clearly defined; very often chapters have to send a reminder to their members, and expel the members only afterwards. I can see point 7.2 mentioning that the Board makes the decision on the removal of members, so there is quite an ambiguity here (as in "the Board" versus "automatically").
- (Minor) 6.6.8: At the first sight, this seems obvious, but after a deeper look, I am concerned about the meaning of this point. It seems very general if you'd like the members to abstain from any actions that might possibly impair the reputation of the Association, and hence this point might be merely a dead letter — and I am sure you wouldn't like to have a dead letter in the by-laws, so I would suggest removing or rewording this point.
- (Important) 6.6.10: This is another rather unacceptable point for me; firstly, it borders with violating the freedom of speech (one should never-ever be obliged to consult the contents of his/her speech with the Board of a Wikimedia chapter), and secondly, there isn't always enough time to discuss such matters (this happened in many countries with regards to the recent SOPA protests). Instead of having such a clause in your by-laws, please consider appointing a spokesperson to deal with press contacts.
- (Minor) 6.6.12: There's probably a problem with translation here, could you please have a look at the original version and describe your intentions?
Withdrawal from the membership of the Public association
- (Medium) 7.1.1 and 7.1.2: I can see an obvious logical connection to 6.6.3, 6.6.4 and 6.6.9, but as stated above, I feel that everything we do in a Wikimedia chapter (and the Wikimedia movement as a whole) should be merely a volunteer activity, and should aim to avoid legal obligations — so, again, please consider removing or rewording this point.
- (Minor) 7.2: This seems to have been already included in 6.3 ("Exclusion from the membership shall be carried out by the Board of the Public association (...)"). I do think, however, that this is a better place for this clause, and would therefore suggest you to remove it from 6.3 and leave it here; please remember to include the right to appeal to the General Meeting, which is a popular safety measure in case of political or personal conflicts within an organisation.
Control bodies of the Public association
- (Medium) As a general remark, I would suggest changing the title of this section to something similar to Internal bodies of the Public association; there is, as far as I see, only one control body — the Audit Committee (or "commission", as you call it). If that's just a translation-related matter, please ignore this comment.
- (Important) I cannot see the General Secretariat of the Association included in this section, why is that? As a statutory internal body of the Association, it should be—in my feeling—included here, too. On the other hand, I am not entirely sure that Wikimedia Kazakhstan will be needing an Executive Director or other staff from the very beginning. As a Wikimedian (please ignore my being a ChapCom member) I would advise having only a Board and an Audit Committee just for now, and to consider adding an Executive Secretariat if such a need arises. If you decide to add it later, it should be also included somehow in the rights of the Board (or the General Assembly), though.
- (Minor) 9:1: A general remark: this point is extremely important for a good organisation of an association, and requires special care. To me, it is just too long and a bit unclear. Having said so, I would suggest splitting it into some smaller points, just as you did with the above-mentioned section 14 (for example, a separate point for meeting times, notification of a meeting, quorum at meetings, some clause on delegation and representation, etc.). More detailed comments follow below:
- (Minor) 9.1, first paragraph: Two General Meetings per year is quite a high minimum. Most chapters have only one General Meeting a year, even if they meet more often.
- (Medium) 9.1, second paragraph: I see that you decided to allow proxy voting. Could you please clarify the meaning of an order of representative and delegate voting? There seems to be a distinction between representative voting (in which an appointee has very clear instructions as how to vote) and delegate voting (when an appointee has the freedom to choose how to vote), so please specify which is the case here.
- 9.1, third paragraph: I have two comments on this point:
- (Important) It is not clear to me which General Meeting (Ordinary or Extraordinary) is being described here. The first sentence clearly describes an Extraordinary Meeting, but I am not so sure about the second sentence. For clarity reasons, you could for example have a separate point for an Ordinary Meeting, and another one for an Extraordinary Meeting (and please state clearly whether quorum, etc. are the same as with an Ordinary Meeting or different, etc.)
- (Important) In my feeling, elections for the Board and the Audit commission should be always done by a secret ballot, and as such, this should be included in the by-laws. If you have a reason not to organise this type of voting by a secret ballot, please let us know.
- (Minor) 9.2. Competence of the Public association — should be of the General Meeting, I take it? :)
Board of the Public association
- (Minor) 10.2, a general remark: This point seems too long, and should possibly be split into two or three smaller, clearly organised points: one on the voting on Board members (this might be moved to the section that discusses the General Meeting anyway), the other one on the internal organisation of the Board, and a third one on the removal of Board members.
- (Medium) 10.2, first paragraph: 10 people in a Board seems just too much to me; as far as I know, most chapters have a Board of 5-7 people at most — and, by the way, the number should be odd to avoid draws. I am also not very comfortable (but please note that it is a personal feeling only) with such a long term of the Board: it seems a bit weird to have two General Meetings a year and, at the same time, such a long term of the Board — doesn't it? A two-year term seems a good compromise in this situation.
- (Medium) 10.2, second paragraph: Doesn't it bring too much bureaucracy into an already bureaucratised process? Having to collect at least 3 written support statements and an electoral programme is a huge requirement indeed. In my experience, for most of the time simple (self)nominations work just well. Also, please see 9.1.3 and the corresponding Wikipedia article for why a secret ballot should be used in Board elections.
- (Medium) 10.2, fourth paragraph: The Wikimedia movement as a whole has been, for most of the time, consensus-driven. Don't you think it might be better to have a decision to pass with a simple majority — and without it, to fail? In my feeling, if a vote has no majority within the Board, the matter is question might be probably too controversial to be decided by just one person, and a more thorough discussion (possibly on a wider forum, e.g. a mailing list) might be required.
- (Medium) 10.2, sixth paragraph: See above (point 1.8) for a question about the individual and collegial responsibility.
- (Important) 10.2, seventh paragraph: I am not sure if non-fulfilment of the obligations of a Board member is a good reason for removal from the Board. We are all volunteers, and sometimes our real lives make it impossible to take part in some activities (even only within a Board). I am especially concerned about the third bullet point, it just seems too harsh for a volunteer-run organisation.
- (Minor) 10.3.2: The Board is not the right body to decide or hear reports on their own performance :-)
- (Medium) 10.3.6: This is related to one of the points above, so I am not going to repeat what's written there; I just am not sure if Wikimedia Kazakhstan will be needing employees from the very beginning of its existence.
- (Important) 10.5: This is yet again rather unacceptable for me; appointing people for permanent membership on the Board would only cause problems with the decision-making process in the future — and the Board would unnecessarily grow bigger and bigger with every other Chairman being chosen.
Executive Secretariat of the Public association
- (Minor) 11.2.8: Point 9.1, second sentence, states that the Board calls for the General Meeting — shouldn't it also be responsible for informing the members about it?
Audit commission of the Public association
- (Medium) 12.1: Just as with the Board, I would suggest to limit the term of the Audit commission to two years, and also limit the number of members to three. A group of three people can—in my feeling—work just as effectively as a group of five, and being in an Audit commission automatically means that one cannot be involved in any possibly controversial initiatives and decisions (because there is no other controlling body than the Audit commission).
Making changes, liquidation and reorganisation
- (Medium) Just as a general remark, I feel that the decisions on making amendments to the by-laws or liquidating the chapter require a bigger consensus among the members of the Association due to their importance and seriousness.
Some open questions for which I haven't been able to find answers:
- (Important) I can't find a way for the members to remove a member of the Board or the whole Board; some of the situations in which a Board membership can be revoked are listed in 10.2, paragraph six, but there is no mention that a General Meeting has the ability to remove a member.
- (Important) How are the different functions in the Board going to be distributed? Are the Board members elected to a function (e.g. the General meeting decides on the chairperson), or are they elected as Board members only, and then the Board itself elects its members to certain functions (for instance, the Chair, Treasurer, Secretary, etc.)?
- (Important) I can't find any mention in the by-laws about how the budget (or "planned expenses for next year") of the Associated is supposed to work. Who proposes the budget (the Board/Chair/Executive Director), and who is going to approve it (the General Meeting)? Giving the opportunity to approve the budget to the General Meeting also gives the influence on what direction the Association is really taking, and is a usual thing in many of the chapters.
Thank you for having the patience to read through all of this :) I am looking forward to hearing back from you; if you have any questions about my comments, please let me know; I will be present at the Chapters meeting in Berlin, so if you'd like to discuss some of the points face-to-face, please let me know, and I'll try to help. Thank you! odder (talk) 00:12, 21 March 2012 (UTC)