By Charitha Ratwatte –
Space for civil society
Lanka’s National Secretariat for Non Governmental Organisations (NGOs) issued a statement on 1 July, reportedly stating that: ‘It has been revealed that certain NGOs conduct press conferences, workshops, trainings (sic) for journalists and dissemination of press releases, which is beyond their mandate. We reiterate that all NGO should prevent from such unauthorised activities with immediate effect.’ The newspapers state that this circular has only been issued to NGOs registered with the National Secretariat for NGOs.
Two questions arise here. What is an NGO? How is its mandate determined and by whom? The commonly-accepted definition of a NGO is that it is an organisation that is neither a part of the government nor a conventional for-profit business. Usually set up by ordinary citizens, NGOs may be funded by governments, foundations, or businesses. Some NGO avoid formal funding altogether and are run by volunteers.
NGO are highly diverse groups or organisations engaged in a wide range of activities and take different forms in different parts of the world. Some may have charitable status, while others may be approved for tax exemption based on the acceptance of their social objectives. Others may be fronts for political, religious or other special interest groups.
It is accepted that NGO are difficult to define precisely. For definition purposes, the most common factors focused upon is on the organisations ‘orientation’ and ‘level of operation’. Orientation coves the types of activities it takes on. For example human rights, environmental conservation or human development work. Level of operation is taken to mean the scale at which an organisation works, such as local, regional, national or international.
In 1945 when the United Nations Organization (UNO) was created, the UN being an inter-governmental organisation, provided for certain approved, specialised international non-state agencies or NGOs to be awarded observer status at UN assemblies and some of the UN’s meetings. The UN acceptance of an NGO is, it should be private, not for profit, independent from governmental control, not criminal and not a cover for an opposition political party.
Lanka Voluntary Social Service Organisations
In terms of Lanka Voluntary Social Service Organisations [VSSO] (Registration and Supervision) Act No. 31 of 1980, it is enacted that: ‘A Voluntary Social Service Organisation means any organisation formed by a group of persons on a voluntary basis and (a) is of a non-governmental nature, (b) is dependent on public contributions, charities, grants payable by the government or donations local or foreign, in carrying out its functions, (c) having its main objectives, the provision of such relief and services as are necessary for the mentally-retarded or physically-disabled, the poor, the sick, the orphans and the destitute, and the provision of relief to the needy in times of disaster, and includes a community hostel.’
The VSSO act’s long title describes the statute as one providing for the registration with the government of VSSO, to provide for their inspection and supervision, to facilitate the coordination of the activities of such organisations, to give governmental recognition to such organisations which are properly constituted, to enforce the accountability of such organisations in respect of financial and policy management under the existing rules of such organisations.
In Lanka we have therefore a definition of VSSO, as defined in the act, which are of a non-governmental nature. This is the only definition of a non-governmental organisation found in any law in Lanka. All NGOs in Sri Lanka ranging from the Civil Rights Movement (1971), Organisation of Parents and Family Members of the Disappeared (1989), Helping Hambantota (2005) are all VSSO. Does the NGO Secretariat circular apply to VSSO as registered under the Act?
The VSSO Act creates an office of Registrar of VSSO. Is this institution different from the National Secretariat for NGO and the Director/Registrar, who has issued the circular? However, recent news reported that this circular has been sent out to all NGOs by the Director of the National Secretariat for NGOs, which has stated that NGOs are acting beyond their mandate by engaging in certain unauthorised activities.
Civil society organisations react
Civil society organisations have reacted to this circular with anger. The Centre for Environment and Nature Studies states: ‘Sri Lanka is struggling with many problems, including those related to environment and bio piracy. Instead of addressing these issues, the Government is trying to take action against the freedom of expression. This will lead to more troubles for all of us.’
Lawyers for Democracy and Lawyers Collective criticised the circular as being ‘a blatant violation and a curtailing of the fundamental rights of citizens’. The Lanka Working Journalists Association said that the circular is ‘a sinister move aimed at silencing and stifling already-persecuted voices of dissent, and a clear attack on the freedom of expression.’ It has called on the Government to rescind the blatantly undemocratic and unconstitutional decree.
The Centre for Policy Alternatives (CPA) said that the circular was a direct threat and challenge to civil society and to Lanka as a functioning democracy. The CPA went on to state: ‘The chilling effect it intends on the freedom of speech and expression and on the freedom of association, confirms that this regime is either unwilling or unable to comprehend the basic requirements of democratic governance and that it is authoritarian to the core. The move displayed the authoritarian status of the Government and the near collapse of the Rule of Law. This is a serious blow to civil society and a step towards the militarisation of the minds. There is no basic law for this move and is of an authoritarian nature. The Government was sick and sad minded if it thinks that even the mild criticism against it had to with a regime change.’
The Civil Society Collective (CSC) has declared that the move to ban NGOs from holding press conferences and workshops was illegal and therefore they would ignore the ban and continue with their activities. The CSC said that it ‘strongly condemns this detrimental move. This is a serious blow to democracy in the country. We as part of civil society have the right to the freedom of speech and association. The Ministry has gone beyond its mandate by issuing this circular. We have decided to ignore the ban as it is illegal and will carry out our programs as usual.’
It further urged the Defence Ministry to withdraw the circular immediately and warned that legal action would be taken it was serious about implementing it. It was alleged that that the issue of this circular was not spontaneous but was the result of a long-planned-out strategy… To quote: ‘The crusade against NGOs and Civil Society Organisations (CSOs) began with the banning of the training program for journalists by Transparency International (TISL). The Government is misguided in its thinking that NGOs and CSOs are its enemies and that they are working for the international community and that NGO are critics of the Government. The CSC said the Government was attempting to diminish the alternative the alternative opinions being expressed and that’s why it had made this move. We won’t stop here. We will continue our work and we will hold a convention in the near future to strengthen civil society.’
Obstacles to democracy
The former President of the Federation of University Teachers Associations (FUTA) stated that this move had helped NGOs and CSOs to raise their voice about obstacles to democracy in the country. The NGOs have been raising their voice on democratic issues in the country but had not been taken seriously by the people. People will now realise that there are real issues.
The Movement for Against All Forms of Discrimination and Racism stated that the NGO community and civil society were acting within the framework of democracy. They stated: ‘We have in no way exceeded our mandate. We work within the mandate of the International Covenant on Civil and Political Rights ICCPR) and the International Covenant on Economic Social and Cultural Rights (ICESCR). Our vision is based on the rights of the people. We can hold news conferences to explain our objectives.’ They would continue to work within this mandate and the Constitution of the country as usual to move ahead.
Government’s ‘biggest challenge’
Analysts point out that the Government of Lanka seems to see civil society organisations as its biggest challenge. The Ministry of External Affairs has also issued a statement claiming a legal basis for the impugned statement based on the VSSO Act and, regulations and circulars of the Presidential Secretariat. Directions have also reportedly been given to the External Affairs Ministry to draft laws to monitor the funding of foreign NGOs. The laws would be drafted to monitor the entire process, including auditing and accountability, so that these NGOs do not act in manner inimical to the State.
Analysts further point out that the Government’s restriction of visas for aid workers has affected the operations of several international NGOs which are reportedly downsizing their staff in Colombo. It is reported that most of the international NGOs affected are those that are working on areas like governance, peace building, conflict resolution and post-war trauma counselling. Reportedly Parliament has been told that the circular is nothing more than a mere advisory note!
It may be more than coincidence that while these events are taking place in Lanka, in neighbouring India too, there are allegations of attempts to muzzle civil society. Soon after the Modi tsunami hit the Indian political scene and the BJP Government took office, the Indian Central Bureau of Intelligence (CBI) submitted a classified document to the Government allegedly identifying several foreign-funded NGOs that are ‘negatively impacting economic development’.
The report, a few pages of which were leaked, allegedly states that a significant number of these NGOs have been observed to be using people-centric populist issues to create an environment which lends itself to stalling Government projects.
Agitation against nuclear plants at Kudankulam in Tamil Nadu, uranium mines, and coal-fired power plants, genetically-modified organisms, mega industrial projects, hydrel projects and extractive industries at localities in Arunachal Pradesh, and North East India among others.
The CBI alleged that ‘these foreign donors lead local NGOs to provide field reports which are used to build a record against India and serve as tools for the strategic foreign policy interests of Western governments,’ while reputed international NGOs such as Green Peace have rubbished the report, saying that the intent of their campaigns have deliberately been misunderstood and that this is a conscious attempt to crush and stifle opposing voices in civil society.
Several other NGOs have voiced their concerns about the intention of the Government of India in this context. The NGO community in India is very strong, and has used the Right to Information Law to control the abuse of power and corruption. The CBI report, in this context is an aberration.
Deteriorating democratic environment
The International Crisis Group, an NGO working to prevent conflict worldwide, states that the Sri Lankan Government’s most-recent directive to gag NGOs indicates a deteriorating democratic environment. The Government, it alleges, has for years been hostile to NGOs, both local and international and have placed obstacles and restrictions on their work in various ways.
Government sources claim that many NGOs are working, either openly or covertly, against the interests of the Sri Lanka Government. In reality it seems that Government officials are unhappy at the public criticism they receive from the NGO community. In what is termed as an increasingly-authoritarian political context, where the media is largely controlled by the Government, NGOs remain one of the few sources of independent information and political criticism of Government policies.
The 1 July prohibition of NGOs holding press conferences and workshops ‘outside their mandate’ appears to some analysts as a reaction to public criticism by some NGOs and civil society activists at the Government’s alleged support for radical supremacist groups and the Government’s inability to prevent violence allegedly instigated by them and the inability to take any culprits into custody.
How is the directive to be implemented? Legally it seems bereft of any legal or administrative basis. The mandate of an NGO is to be found in the legal document which creates it. A deed for a trust, articles and memorandum of association of a company, a deed of partnership, constitution or whatever. Such a document will lay out in detail the aims and objectives of the organisation. The question whether any NGO has acted within outside this mandate, in holding press conferences or ‘trainings’ (sic) or whatever, is a matter of proof, before a judicial tribunal following the laws of evidence. The powers and functions of the NGO as laid down in its basic document have to be legally interpreted.
Generally authoritarian governments around the world are wary of private, non-government, independent organisations, set up by volunteers. Authoritarianism is a mindset which is suspicious of any forces, of whatever nature, outside its control, which the authority cannot control and whose behaviour it cannot predict. But from the mists of time historically, likeminded people have been voluntarily getting together to because they believe in some philosophy or principle to carry forward their beliefs. Faith and religious groups are the prime example.
In Sri Lanka, Dayaka Sabhas, or its equivalent by whatever name, exist around each and every Buddhist temple and institutions of other faiths, churches, mosques and Hindu temples. Similarly, the ubiquitous death aid societies (Marana Adhara Samithi) and Rotating Savings and Credit Associations (ROSCAs – cheetus). There is no way a government, however authoritarian, can even hope to control and manage each and every one of such organisations.
Authoritarian states such as Iran, Russia, Cuba and the People’s Republic of China have softened their stand against organisations not subservient to the government. Indeed some very interesting examples of how an outwardly-authoritarian administration is compelled to adjust in the face of reality has emanated from China.
In 2008 China brought into operation an ‘Open Government Information’ (OGI) scheme. This on paper at least brought about a profound change on how the hitherto authoritarian government of China handles some kinds of information. A culture of extreme secrecy had for decades been the mainstay of the Communist party’s authoritarian state. But the Chinese pragmatic leaders have realised that in this modern era of instant communication with text messages and Twitter, absolute opacity can cause discontent and threaten stability of the Communist regime.
For example, the Chinese Government’s failure to disclose information about the spread of the SAARS respiratory disease in 2003 hurt its credibility and standing both domestically and aboard. As the Chinese State media put it at that time, a Government operating in the ‘sunshine’ could regain citizens’ trust and the Communist Party hoped would reduce and ease tensions.
The OGI is in no way comparable to the Right to Information Laws which are found in democracies, such as India, for example which has resulted in NGO and civic-minded individuals driving a proverbial herd of rampaging elephants through the machinations of corrupt politicians, bureaucrats and crony capitalism. But the Chinese Communist Party has probably seen the writing on the wall, and decided that a little bit of opening up could not be avoided.
In 2012 the All China Environment Federation, an NGO, took the Environment Protection Bureau of Guizhou Province to court for having twice failed to answer an OGI on a dairy farm which was discharging waste and polluting the neighbourhood. The court ordered the release of the information within 10 days. Such rulings against government departments, once unheard of, are now becoming common.
Research has shown that in 2010 the chances of a citizen winning an OGI-related law suit in Beijing was a mere 5%, but in 2012 the courts ruled with the citizens against the Government in 12% of the cases. History is being made! On 1 April this year, the State Council, China’s Cabinet of Ministers, issued new guidelines, requiring that officials pay more attention to disclosing information.
From China is also an example of collaboration with an NGO, called Included, which the Government of China has accepted as doing useful work. Included has Government support for four community support centres it runs for migrant children in Beijing and one in Shanghai, providing after school programs for more than 400 migrant children. Included works with the Government-run China Social Welfare Foundation. Both the Beijing and Shanghai Government have provided Included with funding support. Clearly even authoritarian governments have realised that there is sense in allowing civil society organisations the space to assist communities.
To add fuel to the Lanka fire, the Department of External Resources has published a notice informing everybody, including the Government itself, civil society and the general public requesting them to ‘Be Alert’ of what is done with foreign remittances. Further, the newspapers carry a story that a Cabinet Minister has violated this ‘Be Alert’ advisory! Is the External Resources’ edict even worth the paper it is printed on? Is it within the External Resources Department’s mandate? More on this later.
Interestingly, a notice by the Ministry of Finance and Planning invites civil society and NGOs, among others, to submit proposals for the 2015 Budget. Is there no issue of this being “within their mandate”!?
The right hand does not know what the left hand is doing!