By Laksiri Fernando –
The circular ‘order’ issued by the Ministry of Defense (MoD) on 7 July 2014 with the objective of prohibiting the non-governmental organizations (NGOs) conducting “press conferences, workshops, training for journalists and dissemination of press releases” undoubtedly is the most intrusive directive issued so far by any government since independence without any reason of emergency or war (internal or external) in the country.
It is issued without any regard to the country’s Constitution (1978) and particularly the Fundamental Rights accorded to its citizens under Chapter III and Article 14 explicating the ‘Freedom of Expression and Association.’ The circular also directly contravenes the country’s international human rights obligations particularly under the International Covenant on Civil and Political Rights (ICCPR), among other conventions that Sri Lanka is party to.
It is quite fitting that a prominent leader of the opposition, Karu Jayasuriya, among other individuals and organizations, has strongly condemned the measure in the following terms.
“The Ministry of Defense that has stamped out civil liberties in unprecedented ways in the post war era, is well on the way to creating a military state in Sri Lanka. It is in such an autocratic set up that the Defense Establishment dictates the limits of an individual or collective right to speech and assembly. It is the Rajapaksa Government’s greatest ruse, to keep telling the public and the world that Sri Lanka is a functioning democracy, while the Defense Ministry runs a parallel administration that is adamant to curb freedoms and build surveillance systems to oppress the citizenry and stamp out dissent against the regime.” (My emphasis).
Violation of Fundamental Rights
Sri Lanka’s still ‘democratic and republication’ Constitution (not the political functioning of the system) stipulates in Article 14 (1) that “Every citizen is entitled to (a) the freedom of speech and expression including publication; (b) the freedom of peaceful assembly; (c) the freedom of association.”
All the activities that the Ministry of Defense intends to prohibit directly come under the above fundamental rights. If the NGOs are prohibited of those rights and thus the legal activities, then that not only amounts to what it means by “the freedom of association” in Article 14 (1) (c) quoted above, but also violates 14 (1) (g) on “the freedom to engage by himself or in association with others in any lawful occupation, profession, trade, business or enterprise.” It is in consonant with that article that individuals in association with others have formed ‘voluntary social service organizations’ what we popularly call as NGOs.
The reasons attributed to the issue of the circular are that holding of “press conferences, workshops, training of journalists or dissemination of press releases” are “beyond their mandate” and “unauthorized.”
The question arises as to who determines the ‘mandate’ of NGOs and ‘authorizes’ their activities?
It is so obvious that in a democratic country it is the NGOs or such associations that should determine their ‘mandate and activities’ within the constitutional and legal framework of the country. If there is any breach of the Constitution, or any other legislation or legal enactment, then it is up to the Judiciary to determine and not the Ministry of Defense or the Military.
It is only in dictatorships and authoritarian countries, or Fascist States, that the ‘mandates’ and ‘activities’ of NGOs and other civil society associations are determined and authorized by the State or its agencies. The Voluntary Social Services Organizations [Registration and Supervision] Act of 1980 or its Amendment in 1998 in Sri Lanka does not give such powers to the Ministry of Defense or to the National NGO Secretariat or to the Military.
As the Lawyers Collective has correctly asserted in its statement against the circular, “The Ministry of Defense does not enjoy any specific legal authority under any statute whatsoever to control freedom of speech and association of citizens, who act collectively through civil society organizations. In the circumstances, it is clear from the Press Release issued by the Defense Ministry has acted beyond its mandate.” (My emphasis).
Role of NGOs
One may agree or not, partially or fully, with one or the other, or all of the NGOs or their activities. However, as Voltaire supposed to have said, disagreement is no matter, but freedom of expression is sacred and sacrosanct for democracy.
“I disapprove of what you say, but I will defend to the death your right to say it.”
Although the name board ‘NGO’ is of recent origin, perhaps without going beyond late 1960s, such civil society organizations have existed for a very long period. For example, Sanasa organization was first formed in 1906 although it was not called a NGO at that time. Even the Theosophical Society was such a civil society organization formed in 1880, with obvious social and advocacy objectives, which become an incorporated organization only in 1998. YMCA or YWCA were similar, while YMBA and YWBA were then following suit. These were in addition to various community based organizations (CBOs) such as funeral assistance organizations (Marana Adara Samithi). The distinction between NGOs and CBOs is quite thin.
Obviously, there has emerged a strong anti-NGO discourse in Sri Lanka perhaps as a result of the nexus between International NGOs and (some) local NGOs, and more particularly after certain NGOs started to campaign on human rights, minority rights and women’s rights which are not so popular among various political elites, particularly when they come into power. As far as I could remember, the first known local NGO of the present genre was the Civil Rights Movement (CRM) which was formed aftermath of the April 1971 insurrection to look after the humanitarian and human rights interests of the detainees.
There was hostility from the beginning. However, the government NGO relations have changed over time. After Tsunami in December 2004, for example, there was a close cooperation between the government and the NGO/INGO sector. Even before, both the Janasaviya and Samurdhi programs invited NGO participation. No major political leader including the present President, Mahinda Rajapaksa, cannot easily deny their affiliations with INGOs or NGOs particularly when they were in the opposition.
One reason why many of the NGOs have to depend largely on external funding is the restricted economic capacity in Sri Lanka for voluntary and/or charity fundraising as a poor and now a lower middle income country. This is the same for the government and the public sector institutions. They depend largely on external funding sources from the West or the East. If the objectives are the same or similar, and if no unlawful activities are conducted, there cannot be any impediment to the country’s or the societal interests as a result of these external connections. Under the conditions of globalization, the external and internal links of the NGOs are natural and unavoidable.
The NGO Commission in 1993 estimated nearly 3,000 NGOs and over 25,000 CBOs. The numbers definitely are larger by now on both counts. However, the registered number of NGOs with the National Secretariat is given as 1,426 today. That also means there are so many organizations which are not registered or registered only at district levels. These organizations are a great potential for the resurrection of democracy in the country.
It is so obvious that any government which is rapidly moving away from the democratic path wants to curtail the freedom of association of citizens and their freedom of expression directly and indirectly in any country. The meaning of the recent circular by the Ministry of Defense should be understood in that context. This measure has not been taken in isolation, but after a series of measures and orchestrated events to curtail the freedom of religion of minorities in the country since the end of the war in May 2009. The next onslaught perhaps would be on the trade union movement in the country.
It is not by accident that the leader of the attacks on religious minorities, the so-called thero, Galagoda Attte Gnanasara, was the same person who had launched physical attacks on NGOs prior to the 2009 period. The connection between his Bodu Bala Sena (BBS) and the Ministry of Defense is also an open secret, although formally denied by the Defense Secretary.
It is possible that there will be efforts in the near future to divide the NGO movement and vilify certain leaders/activists of the NGOs by the government and the government controlled media. The campaign has already started in conjunction with the said circular. A usual division made is between what they might call the ‘political NGOs’ and social ‘welfare NGOs.’ What they call ‘political’ NGOs are by and large the advocacy NGOs campaigning on human rights, democracy and justice issues. There is no question that the role of both types of organizations are crucially important for a society like Sri Lanka particularly at this stage where both development and democracy are at issue and at stake. Even for both types or for any other type of NGOs, workshops and training whether for journalists or others, press conferences and dissemination of information are important.
The said circular is issued purportedly under the Voluntary Social Services Organizations [Registration and Supervision] Act 1980, as amended in 1998. However, it is highly controversial whether that circular is consistent with the Act. If the circular is consistent, it is questionable why such a circular was not issued before! In addition to the circular, the Defense Ministry spokesman, Brigadier Ruwan Wanigasooriya, has come to repeat the strictures even exacerbating them in a press conference (Daily News, 9 July 2014).
When the registration procedure was initiated, the process was conducted under the Ministry of Social Services. The purpose was to streamline the procedure of NGO financial accountability and enquire into any financial misappropriation or fraud in an event if there is any bona fide complaints. Even after the National NGO Secretariat was formed in 1999, that Secretariat was under the same ministry and not the Ministry of Defense. Therefore, it is completely misleading for Brigadier Wanigasooriya to say that “the NGO Secretariat operating under the Defense Ministry has been empowered with regulation and administration of NGOs under an Act of Parliament.” Perhaps he was dictated to say so. It is completely incorrect to say that the Secretariat or the Ministry has any powers with respect of the “administration of NGOs.” What the Act says is ‘supervision’ and even that supervision is in respect of mainly financial matters that would finally decide in Courts.
Under the registration procedure of the NGOs, there are 15 objectives stipulated giving flexibility for ‘Any Other’ for the NGOs to pursue. Some of these objectives are not only about ‘Human Rights,’ ‘Protection of Child Rights,’ ‘Gender Equity’ but also about ‘Entrepreneur Development and Training,’ and explicitly on ‘Training and Education’ in general. Therefore, it is extremely difficult to understand under normal reasoning how come that the ‘the press conferences, workshops, training for journalists or dissemination of press releases’ are beyond the mandates of the NGOs.
It appears that there can be a sinister move against a particular NGO or two at this stage, definitely moving against all others in the near future. The immediate danger might not be on well connected, Colombo based or rather ‘sophisticated’ NGOs, but more grassroots based and outspoken ones, working in ‘indigenous languages,’ that expose some of the henious violations going on in the country, while working among the people.
This is the aftermath of Aluthgama, moving ahead for several elections in the near future, including the Presidential and Parliamentary, in the midst of a sensitive UN inquiry on war crimes and war related human rights violations. Therefore, it is quite correct for the Asian Commission of Human Rights (ACHR) to warn the public and the NGOs about the impending dangers in the following strong terms.
“What the Ministry of Defense is trying to tell NGOs is that if they dare to express themselves – by conducting conferences, workshops, training of journalists, and disseminating press releases – is not only that the gates of prison are open for them, but something more: that they face dangers similar to what many other Sri Lankans have faced already.”