Government proposes law to co-opt and control non-governmental activity

While we challenge these individual attempts to dismantle our freedoms and rights, it is important to take a step back and see the monstrous governance apparatus that is growing

The proposed scheme appears to introduce legal legitimacy for the current oppressive treatment of non-governmental organisations. The scheme explicitly requires organisations to comply with governmental policy and agenda, rendering unlawful those who may criticise, challenge and question Government policy and agendas. It seeks to assert authority over all forms of non-governmental associations, groups and activities by introducing mandatory registration, whilst retaining powers to give directions to institutions that are specifically excluded from registration. The Government investment in the institutional mechanism and apparatus to oversee, supervise and direct non-governmental resources and activity is quite simply a taking control of the vast breadth of institutions and groups

Introduction

On 30 January 2024, the Director General of the National Secretariat for Non-Government Organisations shared with a collective of civil society organisations a draft law to repeal and replace the Voluntary Social Services Act of 1980 (VSSO), titled ‘Non-Governmental Organizations (Registration and Supervision) Act’. It was highly unsatisfactory that the draft was only made available in English and three weeks given to respond. In fact, the informality with which the draft was shared fails to amount to an official or public release of the draft law.  

No commitment has been given to publicly engage in consultations over the draft law. To date, no Government policy on the rationale for the new law, the anticipated harm it seeks to prevent or evidence of existing harm it is responding to has been made public to justify the proposed law. This is merely the latest in a series of State attempts to regulate non-governmental organisations in Sri Lanka. This article sets out the context in which this new NGO law is being proposed, together with some broad observations on the draft law.

Recent attempts to ‘regulate’ civil society

In 2018, Cabinet approved a draft law to which objections were raised by a wide cross section of non-governmental organisations. After several civil society groups met with the then Prime Minister Ranil Wickremesinghe and subject Minister Mano Ganesan, the Cabinet-approved draft law was withdrawn. At the time, Prime Minister Wickremesinghe requested those civil society groups to provide recommendations for a new law. Thereafter, with a change of the Director General after the 2019 election of President Gotabaya Rajapaksa, a new process was initiated to draft an NGO law. Civil society groups attempted to engage with the process to no avail, and no draft was formally made available. It was only known that the drafting process had heavy involvement of security agencies. 

In October 2022, following the mass peoples’ protests, a delegitimised Parliament appointed MP Ranil Wickremesinghe as President, and with Minister Tiran Alles as Minister of Public Security, a new Director General was appointed to the National Secretariat for NGOs. In January 2023, the CSO-NGO Collective consisting of around four hundred members (large but not representative) submitted recommendations for a draft law and also a document with basic guidelines for a framework for state engagement with non-government activity. These recommendations were informed by the CSO-NGO Collective’s own consultative process with a variety of non-governmental organisations, meetings with the Central Bank, the subject Minister and NGO secretariat staff, and also extensive documentation of the various problems faced by organisations from state agencies, including the NGO Secretariat. 

While the VSSO Act provides a voluntary scheme by which organisations may register for legal personality as a ‘voluntary social service organisation’, in practice, the scope and activities of the Registrar and personnel have expanded over the past decades. The NGO Secretariat created in the 1990s attached itself to the administration of the VSSO Act under which several non-governmental organisations had been registering. At that time, the Act provided a form of registration that was not as onerous or costly as registration under the Companies Act, given that they were voluntary institutions.  

The mission of the NGO Secretariat as publicised on their website today is (1) “to mobilise the resources and co-ordinate the activities of NGO’s within the national” and (2) “to ensure all the NGOs which are functioning in Sri Lanka, registered and they are functioning within the frame of Government Policies”. The Secretariat itself currently has no basis in legislation and is an administrative creation. Its birth and existence revolves around non-governmental organisations at large and has strayed far from the narrow purpose of the VSSO Act.

Issues faced by non-governmental organisations in Sri Lanka

The NGO Secretariat is based in Colombo and enlists District Secretaries or District Government Agents to function at a District level. The Secretariat appears to categorise NGOs under three typologies – National, District and Divisional – and registration is made available at each level. The local officials aside from registering organisations, have ventured into areas not covered by any law, such as approving annual activity plans and budgets and receiving progress reports of activities of registered NGOs. It is a system that has administratively evolved with admittedly close connection to the security apparatus. The level of interference heavily constrains institutions in the North and East and is compounded by surveillance by the military. 

Since 2009, similar surveillance has been exercised over non-government institutions in other areas of the country. For example, this year a discussion organised for community members and victims of violence in a South-Western town by an individual activist at a local community hall received inquiries from the Criminal Investigations Department as to the nature of the program and identity of participating resource persons, and the police officials even asked to participate in the meeting. 

Even more intrusive and intimidatory actions by police and military personnel are commonplace across the country, particularly in the North and East, where there have been experiences of events being infiltrated, recorded or photographed, beneficiary lists demanded and organisers receiving calls or visits demanding explanation of their work. The surveillance of citizen activity, especially human rights work which is tellingly perceived as being anti-government, appears well-established.

There has been a herding of organisations towards registration under the VSSO Act. Institutions registered under other laws and with other authorities are forced to apply for registration also under the VSSO Act. Banks have been issued with instructions not to permit opening of accounts for voluntary non-profits, whether they be trusts or guarantee limited companies, unless VSSO registration is also submitted. Banks have also refused to credit remittances to existing account holders with registration under various national laws, insisting on double-registration with the VSSO Act. VSSO registration itself is no longer a less onerous process. Organisations have been finding it increasingly difficult to register an institution under the VSSO with some having no response or encountering delays of many years. The process itself is militarised, with defence clearance required for registration – something that is not and cannot be required of private companies or other institutions. The Secretariat has expanded into a cumbersome and time-consuming system of red tape. 

Voluntary social service organisations are required to provide ‘project proposals’, organisational charts along with a detailed constitution for registration. After registration, organisations fill out extremely detailed reports on a regular basis and are subject to directions and questions about how much they spend on administration, how much they pay their staff, why they engage in awareness programs when they should be engaged in development work of building drains, roads etc. The co-opting of resources secured by non-governmental agencies for governmental works is also extremely problematic.

Other institutions registered under any other law do not face this intrusion and interference with their internal workings, whether their work is successful or not, or whether it is effective or not, and whether it is loss making or not. Government policy to monitor non-governmental activity is clear overreach of its function and opens the door wide to abuse of power and arbitrary treatment. Subjective opinions and discretion of administrators will surely, as it already has, lead to rent seeking behaviour and corruption. These problems need to be addressed.

Latest draft NGO law is designed to curtail freedom of expression and association

The latest draft NGO law shared on 30 January 2024, fails to address any of the complaints raised by non-governmental organisations in relation to the functioning of the Secretariat, and military and other interferences with their activities. A few of the main problems with the draft law are discussed here. 

The proposed scheme appears to introduce legal legitimacy for the current oppressive treatment of non-governmental organisations. The scheme explicitly requires organisations to comply with governmental policy and agenda, rendering unlawful those who may criticise, challenge and question Government policy and agendas. It seeks to assert authority over all forms of non-governmental associations, groups and activities by introducing mandatory registration, whilst retaining powers to give directions to institutions that are specifically excluded from registration. The Government investment in the institutional mechanism and apparatus to oversee, supervise and direct non-governmental resources and activity is quite simply a taking control of the vast breadth of institutions and groups. 

The Government’s law reform agenda is demonstrably to grow executive institutions, expand executive power (particularly to direct, supervise, search, seize and call for information) and expand criminal law (including to cover actions that should be within citizen’s right). The trend is towards increased surveillance over citizen activity under the banner of regulation and oversight, towards violating international human rights obligations. It is also a trend of casting informality as suspicious and rendering it illegal. It is part of a larger project of oppression in which the draft NGO law is only a milestone

There is a broad spectrum of non-governmental activity in the country and regulation must have a specific stated purpose. It cannot be to ‘prevent financial criminal offences’ because that would mean that the non-governmental sector by virtue of being non-governmental is deemed suspicious of carrying out irregular financial transactions. Also, financial crimes are the domain of the Financial Intelligence Unit of the Central Bank which oversees activity regulated under the Conventions on the Suppression of Terrorist Financing Act No. 25 of 2005, the Prevention of Money Laundering Act No. 05 of 2006 (PMLA) and Financial Transactions Reporting Act No. 06 of 2006 and also the Fraud Bureau of the Sri Lanka Police. 

There is an entire legislative framework with appropriate expertise, powers and procedures to investigate and prosecute financial offences. Duplication of offences with powers being given to an institution that has no investigative or prosecutorial history and a subjective opinion of how finances must be utilised by non-governmental organisations is an opening of a floodgate of intrusive executive conduct into activities of non-governmental institutions and activities of collectives.

Such intrusion also has potentially disastrous consequences in a context in which many such organised work involves supporting vulnerable communities through the harsh impacts of the economic crisis. In many cases, where police and military personnel have been held responsible for serious violations of the constitution by Sri Lankan courts, survivors and families of victims have benefited from legal, social and other forms of support from non-governmental organisations. 

Individuals, informal collectives, community organisations and non-governmental organisations work with vulnerable communities to protect livelihoods, secure labour rights, secure land rights, protect the right to air grievances about injustice and atrocities, secure access to health, education and other social welfare assistance, address household indebtedness, address gender-based violence, resist exploitation of workers especially migrant and plantation, and the ensure that voices of the vulnerable are not silenced. 

Non-governmental organisations have also responded in times of crisis and disaster to bolster support to citizens. The government has failed and is failing to recognise the contribution made by non-governmental as well as by informal activity and social enterprises to the sustenance and maintenance of life particularly of vulnerable sections of the population. Turning a blind eye to this in a misguided and authoritarian effort to monitor and regulate, will lead to social and economic consequences for vulnerable citizens that the government itself will have to bear.

Defending civic freedoms of all non-governmental activity

Citizens in Sri Lanka are constitutionally guaranteed freedom of thought, expression and association. The Constitution protects the diversity of expression, thought and association of citizens. We may not agree with one another, we may not like others with different thoughts or projects, we may disagree with others seeking to give expression to their thoughts and ideology, but yet we are all guaranteed the space to exist without fear and consequence for holding a thought, expressing an idea and working with others to see an idea come to life. The Constitution guarantees a working arrangement by which we all co-exist together with our differences. Laws that seek to punish differences of opinion and the freedom of association to engage in holding, expressing and modelling projects that reflect different opinions are a violation of basic fundamental rights guaranteed to citizens. Such laws undermine democracy and erode the legitimacy of those who govern.

It is in a context of multiple repressive laws and reform initiatives, such as the Online Safety Act and the Anti-Terrorism Bill, and continuing human impact from the economic crisis of 2022, that this draft law is being floated. The Government’s law reform agenda is demonstrably to grow executive institutions, expand executive power (particularly to direct, supervise, search, seize and call for information) and expand criminal law (including to cover actions that should be within citizen’s right). The trend is towards increased surveillance over citizen activity under the banner of regulation and oversight, towards violating international human rights obligations. It is also a trend of casting informality as suspicious and rendering it illegal. It is part of a larger project of oppression in which the draft NGO law is only a milestone. 

While we challenge these individual attempts to dismantle our freedoms and rights, it is important to take a step back and see the monstrous governance apparatus that is growing. Let us stop normalising these practices and mechanisms of oppression. Whilst resisting the steady trend towards authoritarian governance, let us continue to envision, promote and demand a full realisation of rights and freedoms for all the citizens of this country.     

(The writer is an Attorney at Law with a practice in public law. As a legal researcher, her work focusses on improving protection for victims of torture and victims of domestic violence, reforms to constitutional protections of human rights, reforms to counter terrorism laws, reforms to family law and reforms to land laws. She has been involved with the CSO-NGO Collective since 2018.)