- Attorneys and activists raise preliminary objections on provisions in the draft Bill and cry foul over lack of stakeholder consultation
The proposed Non-Governmental Organisations (NGOs) (Registration and Supervision) Act of 2024 (which currently remains a Bill), which is to repeal and replace the Voluntary Social Service Organisations Act of 1980 (VSSO), raises a number of concerns pertaining to the freedoms available to civil society organisations (CSOs) and NGOs, both in terms of their legal recognition and operations. While certain provisions of the Bill remain questionable, the complete lack of a meaningful consultative process in the formation of the Bill is being criticised by the activists.
This situation was discussed extensively in a recent statement issued by attorney-at-law Ermiza Tegal and human rights activist Ruki Fernando. The statement said that the NGO Secretariat had repeatedly failed to respond to requests to make the draft public in advance.
The statement presented the below observations, which it said were only preliminary observations, adding that further discussion and analysis with stakeholders is required to better understand the likely impact of the proposed amendments on the diverse institutions and the civic space itself that are sought to be regulated.
Context
The statement described the context in which the said regulations are being brought in, underlining that there is a well-documented history of over three decades of politically motivated State antagonism towards NGOs, community-based organisations, civil society groups and human rights activists under authoritarian governments, which have often framed NGOs and their activities as a threat to national security and sovereignty. It added that the subject of voluntary social service and NGOs continuing to be under the purview of the Minister of Public Security, instead of the Ministry of Social Services,without any justification, casts a shadow of security related objectives on the legislative reform process.
Alleging that there has been a complete lack of a meaningful consultative process, the statement read: “When the present President (Ranil Wickremesinghe) was the Prime Minister in 2018, he requested civil society groups to submit their proposals on amendments to the VSSO. The CSO-NGO Collective was formed in response to ensure that due consideration is given to issues faced by the sector and also so that reform does not result in arbitrary or oppressive amendments. However, since the beginning, no draft has been provided for review. Civil society groups previously made several formal and informal requests to be permitted to review draft amendments and/or legislation without receiving any working draft, even though for nearly two years there have been indications from the Public Security Ministry and the Director General (DG) of the NGO Secretariat that such reforms were in the works. The Legal Draftsman had confirmed that a draft was submitted on 04 December of last year (2023) to the Ministry of Public Security under which the Secretariat functions.”
The statement said that the CSO-NGO Collective has made submissions to the NGO Secretariat and the Minister of Public Security on the nature of the issues faced by various NGOs and groups in Sri Lanka with regard to onerous and prohibitive regulations being imposed, unjustified surveillance, and arbitrary interference with plans, activities and obtaining funds, and that the CSO-NGO Collective has further submitted proposals for a draft law and guidelines to the Minister and the DG of the NGO Secretariat in January, 2023, without any response of feedback to date.
“The meeting convened on 30 January 2024, is reflective of the failure to engage stakeholders. Only a hard copy of the draft was shared. No Sinhalese and Tamil translations were made available. They refused to make the draft publicly available online, and the Secretariat insisted that feedback be provided within three weeks regardless of the fact that civil society representatives requested three months. This was without any explanation of why consultations had to be rushed,” the statement said, opining that it was evident that the meeting was not a genuine consultation, but a narrow, tokenistic measure designed to prevent broad, comprehensive and meaningful consultation.
Observations on the draft Bill
The Preamble of the Bill states that the objective of the Bill is to efficiently regulate activities of all VSSOs including NGOs, which the statement issued by Tegal and Fernando pointed out is distinct from supporting, facilitating and promoting the work of such groups.
Remarking that the Bill casts a wide net over all non-governmental groups and activities including development organisations, educational institutions, charities, corporate social responsibility foundations, human rights organisations, research institutes, and political think tanks, among others, the statement said: “It seeks to control, restrain and interfere, and in some instances, prohibit selected activities and organisations. In a context of several repressive laws recently proposed (and enacted) under the present Government, it is of serious concern that the reform of the present Law (the VSSO Act) has failed to address any of the concerns raised for years by civil society groups regarding the workings of the NGO Secretariat, and the oppressive surveillance and interference of security agencies, especially in relation to human rights, political reform, transitional justice and accountability related work.”
Noting that mandatory registration shuts out informal, voluntary collectives from legal recognition, the statement highlighted that international human rights standards and the Sri Lankan Constitution guarantees the freedoms of association and expression. It said that citizens should be free to associate in any form, and that restrictions may only apply once an activity is suspected or found to be illegal. In this context, it said that the proposed Bill seeks to regulate all non-governmental activity, which encompasses a broad spectrum of organisations, i.e. informal, formal, voluntary, paid, non-profit, for profit, national, district focused, community based, and village based, and a broad range of types of activities and aims. By regulating all forms and not focusing on harm, it was further explained that the Bill may be successful for the purpose of surveillance and casting a wide net of control, but will administratively cripple certain groups and activities.
It added that registration, supervision and regulation will be political, and that the proposed scheme is steeped in political influence by having the competent authority appointed by the Minister and the Minister being empowered to make regulations for the sector.
“Several of the powers refer to an intent that does not support views and ideologies different from the Government of the day, an example being that the competent authority is to obtain the views of the relevant Ministries before registration, the competent authority must function to ‘liaise with NGOs to make them part of the development of the country’ and ‘supervise and facilitate close cooperation between NGOs and the Government’. Also, the competent authority has the power to suspend a NGO for prima facie evidence of prejudice to national security and engaging in activities in contravention of this Act or any other law, while registered NGOs have a duty not to engage ‘in any political activity’. This poses a serious risk to organisations that are working on law reforms and challenge existing laws. This is a curtailment of the freedoms of association and expression of citizens who may wish to organise collectively for otherwise entirely lawful activities.”
The draft Bill empowering entry without a warrant and the search of premises, which interferes with physical liberty and the rights to privacy which can under the existing law only be interfered with under judicial supervision, is another concern raised in the statement.
Adding that the definition of a NGO is overly broad, the statement pointed out: “The smallest of community-based groups to the largest of national and international organisations are required to register. This includes those engaged in social services, social welfare, consensus building, advocacy, and strengthening the civil society. The draft also contemplates the competent authority having power over NGOs that are not required to register, such as religious institutions, trade unions, and cooperatives. The application of similar rules to all categories of NGOs will be particularly prohibitive for smaller organisations. Current experience whereby the NGO Secretariat and State officials are compelling organisations to obtain numerous, cumbersome approvals, and provide quarterly activity reports and proposed plans, has been too onerous for small organisations who work with few members of staff or engage in voluntary work.”