Minister Mano Ganesan promises to withdraw it; committee to be set up to review issues
- The funding agencies are also very eager to see the organizations registered so the activities of the NGOs are looked into and monitored
- The draft amendment restricts constitutionally guaranteed rights such as the freedom of association, freedom of assembly and the freedom of expression.
- Financial scrutiny for transactions over Rs. 1 million as grants coming in and for any transaction of the prescribed amount.
- Citizens get together and have fundraising events for social welfare. But if this amendment is implemented you cannot form such groups for such purposes
In a bid to regulate, supervise and inspect Non-Governmental Organizations (NGOs) the Government introduced a draft legislation to amend the Voluntary Social Service Organizations (Registration and Supervision) Act, No 31 of 1980 and the draft had received Cabinet approval. However, the draft amendment was subjected to severe criticism and civil society vehemently opposed it.
As a result, the Minister of National Co-existence Dialogue and Official Languages Mano Ganesan, in the presence of civil society representatives last week promised to withdraw it.
The Prime Minister was also in attendance. Accordingly, a committee is to be set up which will include civil society representatives. However, civil society activists stressed that NGOs should not be targeted and if there are any allegations of malpractices within NGOs, existing laws could be used to deal with them.
Shocked and Stunned
At a press conference organized by the Collective of Civil Society Organizations Executive Director of the Center for Policy Alternatives (CPA) and a Co-Convener of the Platform for Freedom, Dr Paikiasothy Saravanamuttu, said that civil society was ‘shocked’ and ‘stunned’ that such a Cabinet paper could be presented and endorsed by the Government.
“The effect of the Cabinet Paper was to consider legislation that was so extensive and comprehensive in terms of all civil society actors,” he said.
He said the restrictions envisaged by the amendment would have had a chilling effect on civil society and would run completely contrary to the promises and commitments made by the Government with respect to governance.
Executive Secretary of Right to Life Philip Dissanayake said that the amendment went against the principles upheld by civil society and even the current Government.
Compulsory for NGOs to be registered
Currently, the National Secretariat For Non-Governmental Organizations is under the purview of the Ministry of National Coexistence, Dialogue, and
The draft amendment seen by the makes it compulsory for all NGOs operating in Sri Lanka to be registered.
Critics of the draft amendment point out that on one hand NGOs already registered under various categories such as a non-profit organization, a Trust, under the Ministry of Social Welfare, or under the Pradeshiya Sabha were required under the suggested amendment to re-register under the NGO Secretariat.
On the other hand, they point out that there was no necessity to make registration under the Secretariat compulsory unless a particular NGO collaborated with the Government for its activities.
“In some areas, citizens get together and have fundraising events for social welfare. But if this amendment is implemented you cannot form such groups for such purposes,” pointed out the Executive Director of People’s Action for Free and Fair Elections (PAFFREL), Rohana Hettiarachchi.
The draft amendment also bars an NGO from changing its name, rules governing the NGO, amending the constitution and establishing branch offices or subsidiary NGOs without the written approval of the National Secretariat for NGOs.
Hettiarachchi said that when disasters struck the country, it was the civil society that responded promptly in providing relief.
“We helped those devastated by the tsunami clean their houses and rebuild houses. But our mandate does not state that we can do such activities,” he said adding that if the amendment under scrutiny today was in existence at that time, civil society would not have been able to assist as promptly as they did, as they would have had to seek approval beforehand.
Constitutionally guaranteed rights restricted
Meanwhile, the President of Families of the Disappeared Brito Fernando said that civil society was not against introducing new legislation per se, but Constitutionally guaranteed rights should not be violated.
Attorney-at-Law Ermiza Tegal said that the draft amendment posed restrictions on Constitutionally guaranteed rights such as the freedom of association, freedom of assembly and the freedom of expression.
“The draft amendment sought to define Non-Governmental Organizations in the broadest possible sense and would have applied from village level societies to unregistered associations, to guaranteed limited companies, to social enterprises and also to corporate foundations,”
National Secretariat for NGOs
According to the draft amendment the NGO Secretariat is able to investigate complaints of misconduct in NGOs, criminal activities including terrorist financing and money laundering. The Secretariat also has the powers to enter and inspect premises of NGOs. Further, the Secretariat can obtain information related to financial activities of NGOs from banks.
Tegal said the draft law gave extraordinary Police powers to the NGO Secretariat for search and seizure.
“It has introduced financial scrutiny for transactions over Rs. 1 million as grants coming in and for any transaction of the prescribed amount. The bank would have to notify the NGO Secretariat.
“Further offences have been introduced for NGOs for actions, such as non-registration, not giving a publication of the organization and not providing information, that could have been administratively corrected,” she said. Asked if NGOs should be regulated at least to a certain extent she said it depended on the type of regulation that was in discussion. “If it is regarding financial mismanagement, fraud, corruption, terrorist financing there are regulations already in existence. You can make complaints to the Police. The Police can investigate and the Attorney General’s Department can prosecute,” she said.
“There is no need to specifically target and hamper the functioning of individuals who want to get together and form associations and NGOs. There are laws domestically that look at various kinds of wrongdoings and NGOs are subject to the same laws. NGOs are not special categories,” she said.
She further said the NGO Secretariat under the existing Act has no legal status which was also problematic.
“But it functions, issue circulars and regulations and puts various conditions on various organizations. This has been a problematic trend. At the District level organizations are being compelled to give their work plans, and invite the District Secretariat to their various events.
“This also leads to opportunities for corruption,” she pointed out. Tegal also said Police powers to enter organizations, to take copies of documents are found in the existing law as well. “The draft amendment has allocated these same powers to the NGO Secretariat,” she told the .
Nishantha Prithviraj of the Sarvodaya Shramadana Movement said that the proposed draft amendment weakened people’s sovereignty.
He pointed out the draft amendment was drafted without consulting civil society and was an injustice to civil society and the public at large.
He said existing laws could be used to deal with malpractices within organizations if there were any.
NGOs perceived with suspicion
NGOs have been viewed at with scepticism and suspicion due to perceptions created of their non-national nature resulting from their dependency on international funds. In 2008, a Parliamentary Select Committee headed by Vijitha Herath of the Janatha Vimukthi Peramuna (JVP) was appointed to investigate the operations of NGOs and their impact on sovereignty and national security.
Reports state that after the war, the Government suspicions of NGOs increased with international advocacy groups lobbying against Sri Lanka.
Under the previous regime, the NGO Secretariat was brought under the purview of the Defence Ministry and there were attempts to regulate NGOs.
For instance, a circular was introduced to control NGOs. Brito Fernando said that civil society activists gathered and burnt the circular in front of the Fort Railway Station manifesting their opposition.
“The circular was neither withdrawn nor implemented,” he said.
Fernando said he was surprised when the current draft amendment was introduced as the Prime Minister and Minister Mano Ganesan had often worked closely with the civil society.
Time and again critics have questioned the manner in which funds obtained by NGOs were utilized, and whether there has been any fraud or misappropriation of the funds received.
In response to a question posed by journalists, Rohana Hettiarachchi said that NGOs audited their accounts annually.
“NGOs registered under the Companies Act, the Social Services Department, or the District Secretariats provide records to the respective authorities,” he said.
“So, every fund we receive is audited.”
Fernando added that NGOs provide audited reports and the Government had the power and right to question them.
Draft Amendment to be withdrawn
Following discussions with the Prime Minister and Minister Mano Ganesan last week, the draft amendment has been suspended.
When the contacted Minister Mano Ganesan, he confirmed that he would withdraw the draft amendment.
Meanwhile, he tweeted that a committee was proposed with civil society members and officials from the NGO Secretariat to revisit the ‘necessities’ for new legislation and formulate means to address issues.
Dr Saravanamuttu said that civil society activists were given a commitment last week that no legislation would be based on the proposed draft amendment.
“We agreed, therefore, to meet with them to discuss and explore the need for any further regulation. In fact, if there is a need for a legislative amendment, it is to strengthen the freedom of association rather than restrict it in the way that is identified in this cabinet paper,” he said.
Need for Amendment
Speaking to the the Director General of the NGO Secretariat Shakya Nanayakkara said the draft amendment sought to include suggestions made by the Central Bank and the Ministry of Justice.
Asked why the amendment was needed he said Sri Lanka was a signatory to International Conventions which deal with issues such as money laundering and financing terrorism.
“Secondly, companies have legal personalities. But the NGO Secretariat does not have a legal personality under the existing Act. So, certain issues cropped up when initiating legal proceedings,” he said adding that the amendment, proposed to make the Secretariat a legal personality. He said the advice of the Attorney General’s Department and other Government institutes was to strengthen the NGO Secretariat as it was the body that registers NGOs. Stressing the importance of registering NGOs Nanayakkara said that an NGO became a legal entity through registration.
“The funding agencies are also very eager to see the organizations registered so the activities of the NGOs are looked into and monitored,” he added. He said that the draft amendment mandates the registration be issued within three months. “Previously, the registration process took two-and-a-half-years to three years. But the draft Amendment states that the Registrar has to issue the registration within three months,” he said. He also said that no proposed legislation could contradict prevailing Constitutional provisions such as Article 14, which among many freedoms, guarantees the freedom of association. However, he said that civil society itself was divided on this issue.
“Development Organizations want the Government assistance and support. They report to the Government Agents and they work with the Government structures. Advocacy organizations want a more liberal process. So, we have to find a middle path,” he said.