Basil Fernando
(This is the sixth part of an article which is a comment on the Interim Report of the Select Committee of Parliament for investigation of the Operations of non-governmental Organizations and their Impact, which was presented to parliament on December 8, 2008).
On double registration, censorship and surveillance
The Interim Report proposes that organisations which are already registered under several other legal enactments should also register themselves under the proposed NGO law. The report mentions the following forms of registration, which should be subjected to double registration: organisations registered under the Voluntary Social Service Organizations (Registration and Monitoring) Act No. 31 of 1980 and Amendment Act No 08 of 1998, Companies Act No. 17 of 1982, Special Acts of Parliament, Societies Act of 1972, Companies Ordinance (Amendment) of 1891, Agrarian Development Act No. 46 of 2000, Rural Development Act, Protection of the Rights of Elders Act No 09 of 2000, Consumer Affairs Authority Act and the Trustee Ordinance. What would be the legal significance of double registration? If an organisation is already registered under one of these acts it has to fulfill the requirements of those acts and also abide by the rules and regulations relating to such acts. By registration under these the organisation becomes a legal person with legal rights and obligations. If an organisation which is registered under one of these acts does not again register itself under the proposed law in the Interim Report does it cease to be a legal person and become an entity that has no existence before the law? Will the validity of the registration under these acts depend on a further registration under a different law?
If the validity of a registration under one law is to depend on a further registration under another law that would be a legal absurdity. To make the latter condition imperative it would be necessary to amend all the laws that were mentioned above and enforce a further condition into each of these laws to the effect that the validity of registration under any of these acts will depend on the validity of a further registration under a non-governmental organisation law as proposed.
Further legal absurdities involved can be illustrated thus: suppose a charitable trust is created by someone for a purpose such as providing care for the blind, for the promotion of a particular religion, for the education of the poor and the like and is registered under the Trustee Ordinance, would not such a Trust come into being until it is also registered under the newly proposed law? Further, what happens to the already existing Trust? Do all of these cease to exist if they do not also register under the new law? That would create chaos. The law relating to Trust in Sri Lanka evolved from the Common Law of Equity which has a few centuries of history. Has all that now to be changed in Sri Lanka? If the Interim Report is proposing that task then it would indeed be a tall task. The same thing can be said of organisations having to have double registration.
Registration for giving legal recognition and registration for social control
The purpose of any registration under law is to give legal recognition and thus provide legal rights and impose legal obligations. Many acts under which organisations are registered are based on this principle.
However, the purpose of the newly proposed law of double registration is not for the purpose of giving legal recognition but for the purpose of imposing social controls and to take away rights and obligations that are conferred by law when organisations are registered under any particular law.
A new kind of state censorship and state interference
Under the existing laws there are all the legal avenues for ensuring proper use of funds which are meant for the public. If these laws are not properly enforced that is the problem of the defects of the law enforcement mechanisms in the country. If any remedy is needed it is the law enforcement mechanisms that need to be improved and provided with competence and the facilities to do their jobs. Instead bringing about a new authority for censoring and the surveillance of the activities outside the government is a totalitarian exercise. Through such an authority, a particular regime that is in power for the time will impose its perspectives, policies and its restrictions on all these organisations, the net result will be that these organisations will cease to be independent.
The proposed new law of double registration and controls will violate the fundamental human rights of equality before law, the right to hold opinions, freedom of expression and freedom of association.
The law in Sri Lanka has to conform to the Constitution. Further under international treaty obligations it must also conform to the International Covenant on Civil and Political Rights. All such rights will be fundamentally violated by the implementation of proposals made by the Interim Report for double registration and for instituting an authority which has powers of censorship and surveillance.
The full article consisting of all six parts can be obtained from the Asian Human Rights Commission
