Basil Fernando
(This is the fourth and fifth 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).
Part four Manipulation of language, part five – About the definition).
(Part four)
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.
(Part five)
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.
