Basil Fernando
(This article 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)
The purported aim of the committee and its report is to prevent the abuse of funds by non-governmental organisations (NGOs), a very laudable aim. If this be the actual aim there is a very easy and simple solution which is to improve the law, and the implementation of the law, relating to bribery and corruption in Sri Lanka. If there is such a huge hole in the net for catching anyone engaged in the abuse of funds that should reach the public, it is not possible to catch anyone with such a net. The very enterprise will be one that begins with absurd notions and can have only absurd results. Unfortunately, that is what this report is all about. It tries to address the possible abuse of funds by NGOs while ignoring and allowing the abuse of funds by all state agencies and all public sector institutions. This is like trying to catch a three inch sprat with a shark net thereby leaving all the big fish free; it is like trying to catch an ant in a jungle of corruption.
Good auditing is essential in preventing abuse of funds. The records of all public institutions in Sri Lanka, particularly in recent years, demonstrate careless and criminal disregard with respect for proper auditing. Let us begin with the Sri Lankan policing system, which after all is the law enforcement agency in the country.
Corruption revealed by audited accounts in the policing service
In October of this year the Auditor Generals report revealed widespread corruption in the police department regarding purchases. The buying of items such as spoons made from coconut shell which can be bought for Rs 20/- in the market and which were accounted for at Rs 200/- each; a door mat worth Rs 200/= which was accounted for at Rs 2,600/50 each; a hand towel worth Rs 20/= which was purchased at Rs. 120/= each and an electric coconut shredder worth Rs 5,500/= and which was purchased at Rs 23,500/= are among the many items which have been questioned by the Auditor Generals Department. Since these items are often bought in large quantities to serve various operations where many thousands of officers participate, the alleged fraud involves large amounts of money. For one operation alone the amount comes to Rs 5,247,584/=. When many such transactions are taken together it comes to a staggering amount.
Corruption revealed by the audits regarding the Inland Revenue Department
In September 2005 a massive fraud was revealed in the Inland Revenue Department. The alleged fraud was in the amount of Rs 3,570 million (US $ 35.70 million). According to a trade union source from the Inland Revenue Service Union, the report stated that the fraud was alleged to have taken place in the VAT Division of the IRD. The newspaper reported also that the Auditor General, when contacted for his comments admitted, That there was an audit query on the fraud alleged by the unions and a report has been submitted to Parliament but so far it had not been tabled..
Corruption revealed regarding tsunami funds
In September 2005 the Auditor General published a report concerning the numerous irregularities in tsunami reconstruction, rehabilitation and fund management. Covering the period from December 2004 to June 2005, the document is an interim report on post-tsunami activities and was presented to the Sri Lankan parliament.
The media has commented on the tough stance taken by the report, which among other things, highlights the lack of records on the collection of aid money from individuals and institutions, as well as the absence of any government scheme for the utilization of this money. The report further notes the irregular distribution of funds; in one divisional secretariat where 599 families had been recorded as being affected by the tsunami, 15,843 families received assistance.
Corruption relating to defense expenditure
A major theme for many years has been corruption relating to military purchases involving enormous sums of money. Numerous reports have been published and many political speeches have been made but no action has been taken to satisfy the public about the massive expenditure in defense. One of the incidents that were discussed widely was the purchase of five MiG 27 aircraft which is said to have had a total purchase cost of Rs. 1,065 Million. That was of course, just one such alleged fraud. Instead of conducting inquiries severe restrictions on the non-government media were imposed and journalists were exposed to severe punishments for talking on these issues. Discussion on corruption relating to defense spending was tabooed as a matter effecting national security.
Seven thousand queries by auditors from the public sector have been ignored
Within the last year over 7,000 queries by auditors from government institutions have been ignored. When auditors queries are ignored the only assumption that can be made is that they are being ignored because an explanation consistent with innocence cannot be given.
The former auditor generals call for an Auditors Act
The former Auditor General, who acquired an almost legendary name for his services, suggested an Auditors Act and submitted a draft law to that effect. Nothing has been done to enact that law. With the former Auditors Generals knowledge there is no doubt that he would have brought all the necessary experience from developments relating to auditing in the modern world and from this experience of the problems in Sri Lanka he would also have provided legal provisions for overcoming all such problems. If there is any seriousness in ensuring proper maintenance of a system of accountability in terms of the highest auditing standards, the simplest thing to do would be to enact this law. When such an advanced document is available for a group of non-professionals to tamper with the issue is tomfoolery.
The 17th Amendment to the Constitution
In a constitutional setup completely dilapidated by the horrible experience of the 1978 Constitution, one ray of hope aimed at the start of work towards accountability was the 17th Amendment to the Constitution. This has been completely and deliberated abandoned. After allowing the catastrophe of non-accountability to flood the country, to be talking about the accountability of some small organisations cannot be taken seriously. This may be perhaps better expressed by the local term, trying to wear underwear to stop diarrhea.
The lack of effective laws to prevent foreigners bribing Sri Lankans, including top politicians
For decades now the issue of massive bribes being paid by foreigners and foreign companies to Sri Lankans, including top politicians, for the purpose of gaining advantages in contracts, tenders and other business deals, has been reported. How some politicians have purchased apple yards and built huge houses in foreign lands has been pictorially depicted in the political discourse in Sri Lanka. Everyone knows that foreign companies and corporations have to engage in extensive bribe payments to obtain a foothold in the country. In return they are provided with opportunities to take away monies that should have gone to the local public. No law has been passed and not even the existing laws have been used to stop this massive form of corruption.
The few items mentioned above are merely a few samples of the mountains of corruption that have risen have permeated every nook and cranny of Sri Lankan life. In fact, from the point of view of corruption, Sri Lanka is a mountainous country and from the point of view of doing nothing to stop this, Sri Lankas record is a dismal one.
The Interim report lacks seriousness
If the abuse of funds is what the Select Committee was interested in, the Interim Report demonstrates an absence of seriousness. It is perhaps, what in the local Sri Lankan parlance would be called, trying to light a cigar when the moustache is burning. In short, the report borders on being nonsensical.
How abuse of public funds is eliminated and proper auditing is maintained in other jurisdictions
It we discuss this with one example from Hong Kong there are no special laws to deal with NGOs. The idea of trying to bring a special law to ensure auditing among NGOs would be regarded as ridiculous because under the law, the Independent Commission against Corruption (ICAC) in Hong Kong has been established and is now acknowledged globally as an effective corruption control agency. Its influence has spread into the policing system, the public service and the private sector which includes also, NGOs. Anyone who violates that law by abuse of funds and trying to cheat auditors is risking time in jail. There is no such fuss and meetings in the Legislative Council on such small players as NGOs. Everyone is under the law and the law is well implemented.
Conclusion
Imposing strict audit requirements and avoiding abuse of funds meant for the public is absolutely a laudable aim. The NGOs cannot claim exception to this and, in fact, I would not think any sensible NGO would object to this. In public perception it is the politicians who avoid accountability. However, it is not possible to achieve this laudable aim without a holistic approach. Where there are mountains of corruption, trying to remove a piece of stone makes no sense. Therefore, the Select Committee should have critically examined its mandate and reported that the only condition on which proper accountability can be established for any sector or group is through the improvement in law and the implementation of an accountability mechanism in Sri Lanka which means improvements in the law relating to bribery and corruption and the reform of institutions responsible for the implementation of law.
2
About origins
In this part of the article we will discuss the Select Committees attempt to write history and even science. Charles Darwin wrote the Origin of the Species; the Select Committee is trying to write about the origin of Non-Governmental organisations.
Charles Darwin offered his book for the purview of scientists and it was the work of a scientist. Writing about the origins of anything, including various societal matters is a subject that belongs to social sciences. This is not a matter for parliamentary select committees or even parliament itself. There was a time in the middle-ages when the work of a person would be adopted by the monarch as the officially valid version on a particular subject. That kind of thing was also done by regimes such as that of Hitler and Joseph Stalin. These are attempts that may be described by the local saying, the donkey trying to do dogs work.
The narrow view adopted by the Select Committee to the effect that Non-Governmental organisations have descended from charitable and humanitarian work, which had a prominent place in the industrial countries prior to the 19th century does not at all cover the full scope of the subject on the origins of what are now called Non-Governmental Organisations. It was, in fact, not within the competence of a select committee of parliament to write on that matter. Inquiries into this belong to the area of history and science and are not jobs for a parliamentary select committee. By adopting a very narrow description the Select Committee, can in fact, mislead itself and also mislead parliament if parliament were to adopt some policies and practical measures on the basis of this report. If the Select Committees views were expressed to achieve some self-serving agenda then that should be unworthy of a committee which has been given a mandate by the parliament representing a government which calls itself a government of the people, by the people and for the people.
The purpose of this comment is not at all to enter into a scientific inquiry into the origin and evolution of this important development which now comes under the name of Non-Governmental Organisations. The aim here is to show that this particular phenomena has a far more important history and, looked at it from that history, the Parliamentary Select Committee has not understood the subject it has written an interim report about.
What is now referred to as non-governmental started a long time ago, perhaps at the very origin of human history, which was a long time before the governments came into being. Spontaneous cooperation between human beings started at the very origin of the species.
If we go into the histories of all the earliest civilizations, whether they be indigenous communities, hunter-gatherers, agricultural societies and the like, what we see is the spontaneous cooperation among humans to deal with their normal problems as well as to preserve their species.
In the earliest forms of cooperation were the linkages between the male and the female having offspring and the development of relationships in order to preserve the species (we may say that the first non-governmental organisation was the family). These were the dynamic relationships that helped to develop the types of organisations and communications that laid the foundations for all types of organisational work such as irrigation, cultivation, animal farming, selective planting of crops and the like. All these things happened a long time before the state, as we know it today, came into being. Thus, what is today called non-governmental started a long time before people ever thought of governments.
In one sense it is these spontaneous activities of the people which laid the foundations for their civilisations which also at a latter day gave rise to governments. However, from the very first day the governments came into existence there was a conflict between the humans in their natural state and these governments.
From the very date of their birth governments contained within themselves an element of repression and the repression was towards the very creators of the government. Latter day struggles among human beings to gain certain controls over the repressive nature of governance gave rise to many manifold forms of non-governmental activities. Many forms of resistance to repression from oral protests, individual protests, family protests, clan level protests, community protests, organised societal protests by particular groups such as farmers, workers, businessmen, traders, bankers and many others who had particular interests, formed much of what is called human activity. None of these were governmental actions. They were what today come under non-governmental actions.
The totalitarian state
From the time totalitarian states began to develop either as absolute monarchies, military dictatorships, fascist dictatorships or Stalinist regimes the state has attempted to appropriate all actions to itself. The state is the spokesman for everything, the state is also the interpreter of everything and the state is the actor in everything. In fact, the totalitarian state will not only control action but also thought. George Orwell in his insightful novel, 1984, portrays the totalitarianism in its most absolute and purest form. At that point only the state exists, nothing else exists. The past, present and the future exist only through those in power; that is the party. Whether we call it Big Brother as he called it or Big Brothers does not matter at all. In this form of state only power exists, and it exists for its own sake. Thus, the so-called state exists and nothing else. In fact, the conversation between two of the main characters of the novel, Winston and OBrien, is worthy of serious contemplation for anyone who tries to understand what totalitarianism has come to be in our times.
With a totalitarian state non-governmental, meaning anything other than what the government does, should not and does not exist. The government of the people, by the people and for the people thus becomes some kind of a joke. The citizen is reduced to nothingness. It is this kind of mentality that is presented in the Select Committees Report. Under the pretext of trying to stop abuse of funds the real attempt is to introduce government into everything. To paraphrase Bertold Brecht this would mean that the sun will not rise, the winds will not blow, plants will not grow, children will not play and men and women will not make love except by the will of omnipresent, omnipotent big brother/s.
As OBrien would say, this talk about abuse of funds would not matter at all. All the scandals, all the confessions are just sham. What really matters is that entire societies should surrender all their power and allow big brother/s to do whatever and to exist forever.
Perhaps the total project carried out under the pretext of preventing NGO abuse of funds seems to be to abolish all activities against corruption. We have shown in the first part of this article how auditing has been undermined severely by ignoring the queries and exposures of the Auditor General. Perhaps auditing in public institutions and even in the private sector may be abolished and exist only in name. Creating room for absolute corruption requires the undoing of the very concept of corruption and reducing it to some kind of triviality. Already, auditing has been reduced to some kind of triviality in public life. Sri Lankans may have to learn to believe that whatever the government says is right and that figures, statistics and the like are matters of no consequence. Sri Lanka has travelled a long way in that direction. Now for the most part crime does not exist. By a process of stopping the receipt of complaints about crimes and also stopping investigations into crimes, the very existence of these crimes may be made to disappear. People may still be killed, women raped, people robbed and plunder may take place of public property, but these are just the private concerns of the affected persons. Your loved one may have been killed, you may make some noises and when there is no response of any sort you will have that sense of powerlessness which makes you feel that perhaps it is not worth bothering about that killing anymore. By making things lose social significance it is possible to make them also lose personal significance. After all, what is personal? Like virtually tens of thousands of people who have over the last several decades seen the forced disappearances of their family members and were able to do nothing about it, those who become victims of corruption may also have to believe that no such corruption took place at all.
To bring society to a stage where the state can do whatever it likes it has to constantly create enemies. For Hitler, it was the communists first and then the Jews. For Stalin it was the counter-revolutionaries, the Trotskyites and Kulaks and so many others. In George Orwells 1984 the enemy of Oceania was Goldstein. For Sri Lanka it was first the trade unions, then the Janatha Vimukthi Peramuna and the LTTE and added to these there were also minor enemies such as the NGOs and even lawyers who represent aggrieved persons in corruption and human rights abuses.
Thus, to understand the origins of the Select Committee itself and its report it is necessary to go into the origins of the contemporary political reality of Sri Lanka which, at least from 1978 has been one where totalitarianism is trying to devour the entire population of the country. What is meant by devouring is the misappropriation of all national resources by a few persons. That is, in fact, the private use of public resources and funds. The problem to be addressed, if it can be addressed at all is how to defeat this totalitarian project.
3
Early Buddhist and Jainist movements as belonging to non-governmental
In this part of this article we will discuss origins of the non-governmental organisations in the history of India, particularly in terms of the Buddhist and Jainist movements and in Sri Lanka, particularly in terms of the Anuradhapura period. The beginning of the totalitarian project started in early history when the caste system was entrenched in India. Buddhism and Jainism arose out of the spontaneous movements of protest of the time. In Sri Lanka this Indian development made its influence felt in the early Anuradhapura period but later with the influence of Indian invasions and Brahminical influences two institutions grew up to stifle the natural development of civil society and these two institutions were the assimilation of the caste system and the development of absolute monarchies.
The Interim Report of the Select Committee treats non-governmental organisations as having descended from the charitable and humanitarian work of industrial countries. However, any research into any of the civilisations from the earliest of times would demonstrate the existence of what is now called the presence of the non-governmental sector. In fact, more dynamic periods of these civilisations is when the non-governmental sector played a significant role through various societal movements. We will take one example from neighbouring India to illustrate this.
Many thousands of years ago people came from all over the world and settled down in various parts of India. From these many migrations arose various kinds of communities which over a long period of time grew into a homogenous culture. The state has not yet come into being but out of the peoples cooperation grew various forms of economic activities, languages, dances and music and other forms of culture. These manifold activities in todays language would fall within the non-governmental. Thus, the very foundation of Indian civilisation happened within the framework of the non-governmental.
One strange development was that there also grew from within this setup itself, the type of social control and repression which has the same features as the totalitarianism that is described in George Orwells 1984. What Orwell saw would happen in the 20th century happened in India more than 3,000 years ago. This was the growth of the Indian caste system. The Indian caste system is not a mode of social control by the state. It is a mode of social control through social stratification. However, all the features of the worst forms of totalitarianism were manifest within this system. Caste has a tremendous ideological base which was expressed through various notions which were given a religious twist. The Vedas provided justification for the system which segregated a small group of privileged persons from the rest of society who were to do all forms of physical labour. At the top were the Brahmins, the priests, who claimed to have been born from the mouth of God. They were the interpreters of the rules governing society. These rules were enforced through rituals. Brahmins who claimed a monopoly on knowledge also claimed all the privileges. At the bottom was the low caste that were without rights and also without humanity.
In this system also, like in Orwells totalitarian universe, nothing mattered except the system. To create that belief it was necessary to deny the existence of the external world. Everything existed only in the mind in the same way as OBrien, the interpreter of the system in the novel 1984, explained to Winston. The Brahmins explained everything existing in the mind and called all things as illusions.
The emergence of movements of protest and reforms against caste; Buddhism and Jainism
It was against this absolutely controlled society that the movements of Buddhism and Jainism arose. The founders of these movements attacked the very foundations of this social control which were the twisted religious notions. They challenged every aspect of Brahminism including the divine origin of caste. Their protest found support from the millions of wretched people in their society. For the time the whole system broke down and for a few centuries Buddhism and Jainism spread throughout India.
In the early Buddhism we find the growth of movements to educate those who are called low caste, the creation of hospitals for the sick and educational institutions. Art, culture and science flourished during this period and became so powerful that even a powerful emperor such as Ashoka could not ignore the influence of this spontaneous movement of the people. Thus what may today be called non-governmental so deeply influenced the state in order to change a brutally war-mongering emperor into one of the greatest examples of a ruler who concerned himself with the welfare of the people. Regarding this, Romila Thapar, wrote:
Ashokan pillar
Buddhism of (Emperor Asholkas ) age was not merely a religion belief; it was in addition a social and intellectual movement at many levels, influencing many aspects of society. Obviously, any statesman worth the name would have to come to terms with it.
(A History of India – Thapar 1990: 85)
The Anuradhapura period
It was the rebellion that rose against and destroyed, at least for some time, the caste system of India that influenced Sri Lanka in the period which is generally known as the Anuradhapura period. This period also laid the foundation for Sri Lanka, which despite of strong influences against it later, by the introduction of the caste system and the development of absolute monarchy with Brahmins as the political architects, remains some of the most positive aspects of the Sri Lankan society and culture. In this period it was the spontaneous movements of the people cooperating to build their irrigation systems that created some of the engineering feats that even today baffle the observer. Again in this society it was not the state control that drove the people. The peoples spontaneous initiatives and capacity for cooperation laid the foundation, not only for the economy but also for art and culture.
The above is meant to be brief comments merely to illustrate that the claim that non-governmental organisations arose out of industrial countries, as claimed by the interim report does not make any sense.
Furthermore, understanding of non-governmental in the comprehensive sense is necessary in order to grasp the attempt by the promoters of totalitarianism to have absolute social control over everything, over all initiatives by the people.
In the next part of this article we will discuss the manipulation of language in the Interim Report by such use of words as interference, sensitive matters and sovereignty in order to create confusion and to generate impressions in support of totalitarian social control.
4
Manipulation of language
In this part of the article we will discuss the manipulation of language in the Interim Report by such use of words as interference, sensitive matters and sovereignty in order to create confusion and to generate impressions in support of totalitarian social control.
In the interim report we find the following statements as unnecessary interferences, interferences into highly sensitive issues and the like. This brings us to the question of who interferes with what?
In a democratic society it is the interference of the state beyond its legitimate sphere that is a major concern because this has to deal with the freedoms of the people. While the government has to exist it has to exist within limits and its interference beyond those limits into the freedoms of the people is illegal. In fact, the constitutional law of any democracy is an attempt to articulate the principles through which the state is to be bound.
In the totalitarian state there are no boundaries to the states power. In fact, everything that is done must be done by the state. For the people to do anything for themselves is illegal. In Pol Pots Cambodia even cooking in a private kitchen was not only illegal but carried the death sentence. All cooking had to be done in collective kitchens and the cooks and the distributers of food had official status. Every small detail of life was regimented by the state. Even the care of small babies was taken out of the hands of the mothers and handed over to official crèches. Studies of every other form of a totalitarian state provides volumes of information about the way the state attempts to control every aspect of life which under normal circumstances would have belonged to the private sphere.
As for sensitivities for the totalitarian state every activity which belongs to the private sphere is a sensitive matter. By the word, sensitive, what it means is that all such activities or expressions or even thoughts can lead to serious punishments. In various totalitarian experiments in the 20th century thousands of people have lost their lives or have suffered long periods of imprisonment for making a trivial remark or even listening to somebody who is making a remark that is not approved by the state.
Another word that is used manipulatively is sovereignty. The concept of sovereignty in a country which recognises a form of government of the people, by the people and for the people, is very different to the question of sovereignty in the totalitarian state. In the latter a small ruling clique, together with the military hierarchy is sovereign. The people do not matter at all. On the other hand in a democracy the people are sovereign and the government derives sovereignty from the people. The sovereign people have the right to criticise their government and when the government goes against the peoples interest even the right to get rid of the government. What the people do and say within the framework of law constitutes the exercise of sovereignty. The law itself has to respect the rights of the people. If the law does not respect the rights of the people such law itself is invalid because it violations the sovereignty of the people. Sovereignty, when it is used for the purpose of justifying abuse of power and corruption denigrates the very meaning of the word. Here the following observation made by one of the commissions appointed to inquire into forced disappearances needs to be recalled:
Two problems are facing this country. One is the problem of the youth which took militant form under the J.V.P. The other is ethnic problems which takes militant form under the L.T.T.E. These two problems unless handled with vision and statesmanship will distort all organs of Society and make the Army arbiter in national issues.
Thus, the use of words like, interference and sensitive matters and sovereignty in the report, which the report never defines, indicates an attempt to create a climate where the freedom of the people becomes less a matter of concern as against the power of the state to do and say whatever it likes.
In any discussion about civil society matters, which is what matters about non-governmental means that the primary objective has to be the preservation of the freedoms of the people against the interferences by the state. This is what gives any meaning to the non-governmental activity. Such activity exists for the purpose of resisting the state in all matters when the freedom of the people is at stake. If such resistance is considered interference or a matter too sensitive for people to bother about then there is no scope for civil society in such a situation. It is not unfair from looking at the entirety of this project against the NGOs to conclude that it reflects a larger scheme of trying to take complete control of all societal initiatives by the state.
5
About the definition
The Select Committee suggests the following definition proposed by it to be legalised:
“All organisations formed by an individual or a group of individuals with no state agreement for the purpose of rendering volunteer service with local and foreign aid, with no expectation for profit but aiming at social security, welfare and development, with a constitution and a management system consistent with the domestic legal and policy framework and ethics are defined as voluntary social organisations or non governmental organisations.
Of what use is a legal definition?
In Sri Lanka there are laws relating to bribery and corruption and the definitions of such laws. However, the laws are not enforced. Corruption thrives as never before. There are also laws relating to auditing about the enforcement of which the same thing can be said. And there is the Constitution itself, which too, is not enforced. All that one needs to do regarding this is to look into the fate of the 17th Amendment to the Constitution. If these existing laws are enforced the abuse of funds meant for the public by anyone, including the NGOs, can be prevented in which case no new law is necessary. On the other hand if these laws are not enforced as is the case, there is no plausible reason to believe that the new law will be enforced. In either case a new law and new definitions are not going to be any use. Furthermore, if laws which apply to almost every activity are not enforced, is there any plausible reason to evolve a specific law for a specific activity?
What practical use will there be from this definition?
If this definition is adopted anything that falls outside of it will not be covered by this law. For example if there is an organisation that does not have a constitution as required by this definition, it will not fall under the category of NGOs. What would that imply? It would only imply that for the purpose of this law the organisation without a constitution is not an NGO. So what? Would it mean that, therefore, it is illegal? That would mean that all activities which do not fall under this definition will be illegal; again, so what? Will such activity or organisation therefore cease to exist or will it be penalized?
The result of this definition would be to have non-governmental activities which fall within this particular law and those that fall outside it. Those which fall outside it will have no need to be under a particular authority or to have registration and the like as proposed by the select committee. The easiest way, therefore, to escape from the ambit of falling within this law is not to have a constitution or one of the elements that are mentioned in the definition. Thus, the definition itself will be self defeating and have very little consequence.
Who falls within this definition?
Even a school literary society or a debating society, associations of parents, past students and even the students unions will fall within this definition. Every village Maranadhara Samethi (societies formed to collect monies to help with burial of bodies coffin funds), will fall within this definition. All Dansalas which local people organise on the occasion of Vesak to give soft drinks and sometimes even eatables to passersby; all Dayaka Sabavas of all Buddhist temples and the equivalent of this in Christian churches known as parish councils; every organisation that is formed for felicitating some person, or institutions for particular events or achievements; any form of ad hoc committee or group organised for the purpose of arranging events such as entertainments, picnics and manifold other activities. All activities performed outside the patronage of the government related to art and culture will also fall under this definition. For example a group of persons who want to hold a street drama or those who want to promote books or those who want to conduct art exhibitions for promotion of art, will all fall within this definition; the same will apply to those who want to promote science, technology and the like without having a profit motive. The groups of persons who form themselves to ensure better services for commuters; groups that want to promote education relating to sanitary facilities or health awareness; groups that organise night patrols in their areas in order to prevent theft and robberies; any freelance activity to provide legal aid for needy persons and many other thousands of activities of this sort would fall within this definition and will have to conform to the proposed NGO law. All these activities which are of the nature of volunteer services require donations (aid) from local or foreign sources, expect no profit and aims at social security, welfare and the like as required are in this definition.
On what basis will the distinctions be made? The problem with having legal definitions of a particular thing is to include everything that falls within that definition, within that law or to exclude anything that falls outside it from the operation of that law. How could the distinctions be made from among the activities mentioned above as those which should fall within the proposed NGO law or not? If the purpose of this law is to be used in a court of law how is the court to decide which activities fall within and which activities fall outside? The courts will have to decide purely on the basis of the legalised definition.
Thus, the definition cannot lead to any practical consequence in indicating which activity will fall within and which will fall outside it.
If the definition is literally applied then virtually nothing outside government patronage can be done without following the legal formalities that would be required.
While much more can be said about the absurdities arising from this definition the above mentioned considerations will suffice for the present.
6
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.
