By J. C. Weliamuna
(Attorney-at-Law, Eisenhower Fellow, Senior Ashoka Fellow, Executive Director of TISL)
Civil society is rejected and hated – that is the opinion created in Sri Lanka. This did not happen overnight. Even those who contributed to the breaking of the backbone of the civil society are at times talking about the need to have a strong civil society in different contexts. Those who campaign against NGOs do not want the public to know that there are approximately two million NGOs in the United States and probably 200,000 in India.
Egypt, a Middle East, country has over 16,000 registered NGOs; in 2004 China had about 285,000 registered NGOs and over 290,000 unregistered NGOS. This article (in Two Parts) is written to identify some aspects that are forgotten in the current one-sided debate on NGOs in media, at this crucial period of our country. By no means, this article covers all aspects in the debate or counters all adverse criticisms but invites the public to consider an often forgotten side of the debate.
What is civil society or NGO?
History of civil society is as old as civilization itself, which is an indication that it is no easy task to “eradicate or eliminate” NGOs, however much one wants it to happen. Attackers on all civil society brand all non-state organizations as NGOs with sarcasm. Deliberate political attacks on NGOs have confused the understanding on the NGOs and its scope and objectives.
It is necessary to unearth the difference between civil society and Non-Governmental Organizations, if any. "The term, 'non-governmental organization' or NGO, came into currency in 1945 because of the need for the United Nations (UN) to differentiate in its Charter between participation rights for intergovernmental specialized agencies and those for international private organizations. At the UN, virtually all types of private bodies can be recognized as NGOs…..” (What is a Non-Governmental Organization?- By Professor Peter Willetts, City University, London).
Article 71 of the United Nations Charter requires the Economic and Social Council (Ecosoc) to make suitable arrangements for consultation with non-governmental organizations, which are concerned with matters tithing its competence. The ECOSOC is the UN Council that makes/initiates studies and reports on international economic, social cultural, educational and related matters to the Members and to the specialized agencies.
We need to realize that structures of NGOs vary considerably in terms of scope of work, activities, staff, funding, level of operation, membership etc. For all purposes, they are no different from individuals. They may operate in a single village, a single district, or a single country or they may be transnational. NGOs may be a part (or component) of a social movement like any other individual. Objectives of the NGOs are also different - economic, governance, human rights, environmental rights, women’s issues, governance, education, artistic and so on. They may be controversial, unorthodox or challenging.
Usually political society is seen as being composed of three sectors: government sector, the private sector and civil society, excluding businesses. All societies and interest groups generally fall under one of them. We need to recognize that all societies including philanthropist societies, interest groups, pressure groups, professional associations, old pupils associations, amadyapa samithiyas, are all part of the civil society and are, in fact, NGOs. Though political parties, trade unions and the business sector are part of the civil society, they are no longer clubbed together with the same group as other civil society groups because they grew independently with special political and economic characters.
Oldest independent societies were typically religious. The philosophical enlightenment of the 17th and 18th centuries resulted in the emergence of free and independent associations with no economic, religious, or royal (government) connections. Individual members played significant roles in the enlightenment, the American and French Revolutions, and other historical events and movements.
The form of operations of civil society (not all) has changed over the years. It has moved from pure voluntary work to different categories of activities. The evolution of all sectors has a rationale for such evolution. For example, Trade unions were not run by paid or full time employees initially, but later they changed into strong structures with higher capacity requiring full time staff and paid employees. Political parties were virtually voluntary at the beginning but later they changed into different types of entities with organized structures and funding. Civil society too went through similar evolution and hence there is no legitimacy issue simply because their structure is different and they need funding.
Participation in NGOs as Freedom of Association
Meaning of freedom of associations is quite direct but needs to be revisited for the purpose of this article. “The nature of NGOs is as diverse as are individuals themselves; it is doubtful whether one could devise categories amongst which they could all be distributed. This is because NGOs reflect the interests and concerns of individuals. What one does as an individual, one might choose to do with a group of likeminded other individuals. To group together to pursue an end or and interest is natural in human society. Once right to do so is one’s right to freedom of association.” (Civil Rights Movement publication E 02/8/96).
Participation in Civil Society certainly falls under the category of the human right called “freedom of association” - a right recognized, among others, in the Convention on Civil and Political Rights (ICCPR) and many constitutions all over the world including Sri Lanka. Interestingly, this was not initially recognized as a separate right. Dicey’s classic on British Constitutional law did not even mention about this as a separate right; nor did the US Constitution have any mention of this right, though German Basic Law and Constitutional of Republic of Ireland etc recognize this as a separate right. However, all those jurisdictions, for many centuries, have recognized freedom of association as being closely connected to the right to expression. The law developed and freedom of association emerged as a strong instrumental human right.
Freedom of expression and association has been recognized in the liberal political history as a foundation of liberal democracy. This right gave rise to the formation of grouped entities such as political parties, trade unions and NGOs. With the development of political theory, particularly the theory of social contract, centuries ago, the notion of organized political government was born, with the people giving up their right to govern in exchange of security. However, “individual liberty” was not compromised to the extent of giving up all their rights such as freedom of speech and association.
Interesting legal principles associated with “freedom of association” can be drawn from philosophical writings and jurisprudence. Some of the key aspects can be identified as follows:
(a) Freedom of speech and assembly are closely connected.
(b) There is a vital relationship between the freedom to associate and privacy in one's association.
(c) Privacy in group association is sometimes indispensable to preservation of freedom of association, particularly where a group espouses dissident beliefs.
(d) Principle of democratic society is founded on freedom of association, which is a necessary element in a participatory democracy.
(e) Freedom of association may extend to personal, associational, artistic or even academic liberty and limitless lawful objectives. In politics, participatory democracy is founded.
Contribution and Economic Advantages of NGOs
Present day one-sided and politically motivated debate on NGOs suggests only a rather bleak view of NGOs. Thus it is necessary to briefly examine at least few major contributions made by NGOs the world over, though it is not easy to give an exhaustive list of contributions and advantages of NGOs.
Literature and studies on NGOs have established beyond doubt that in modern states it is the Human Rights NGOs that call governments to account and compel consideration of policies and programmes that have been designed in disregard or violation of human rights norms. In the international level, in particular at United Nations level, it is the NGOs that contribute to the effective implementation of the conventions because states are generally reluctant to raise issues against another member state for political reasons. The work of NGOs has thus contributed effectively to prevent or control abuses of human rights at domestic and international level.
Let me take a couple of major instances of NGO intervention at international level. In early 19th century, British and Foreign Anti-Slavery Society played a major role in abolishing slavery laws. In 1994, the NGOs led a campaign titled “Fifty Years is enough” to force the World Bank to re- think about their methods and scope of work. At the famous Earth Summit held in Rio de Janeiro in 1992, NGOs were instrumental in raising public pressure to push through controlling greenhouse gases.
NGOs are an employment sector (as a source) too. In Sri Lanka, one could easily assume that NGOs have created approximately 90,000 jobs. At least 400,000 people are dependent solely from earnings from the sector. This includes all categories of employees including professionals, academics, technical experts, field workers, researchers, animators, students and part time staff.
Unlike the public or private sectors, there is always flexibility in experimenting and learning from diversity within the NGO sector. Thus, organized NGOs attract innovative people locally and internationally in several spheres. Naturally innovative people form NGOs to deliver whatever they could. This sector is also preventing brain drain to some extent. There are many instances where intellectuals have returned to the country with the opportunities available in the NGO sector. The working culture of this sector is comparatively challenging and exposure in the NGO sector is almost a pre-requisite for many international positions today.
Contrary to the misconceived belief, a country or a nation need not be poor to benefit from the contributions made by NGOs. While governments are legally responsible for meeting the needs of its citizens, there is a limit to what a government is able to do in both rich and poor countries at national or provincial levels. Thus NGOs play a vital role in complementing the State’s (or government’s) efforts to address human needs in almost all the countries. “Very few countries have reached the ideal of sustaining the human condition at an optimal level, whatever the GNP and other indicators of wealth, through dependence on government action alone. NGOs help fill in the gaps while systematically prodding government will and the collective conscience.” (NGOs, Social Development and Sustainability- Yvonne Asamoah)
Many of the established NGOs are receiving foreign donations. According to Central sources on Balance of Payment, Sri Lanka has earned on capital account alone US$ 92 Million (Rs.10,000 million) and 77 Million (Rs.8,900 million) for years 2008 and 2009 respectively through capital transfers of Non Governmental Organizations. This would appear to indicate that inclusive of amounts received on current account, NGOs have also greatly contributed towards a positive balance of payment in this country.
The contribution of the NGOs to fulfill needs of the vulnerable communities/people, in particular on livelihood, is generally not disputed. Similarly, NGOs are making a tremendous contribution to take care of the disabled people, elders, and victims of crimes. The state mechanism is nowhere near the NGOs in this service sector. Empowerment of communities on many vital issues is by and large effectively handled by the NGOs. If not for the contributions of the NGOs, the government may not be able to engage in some of the lawful service deliveries such as legal aid and awareness of services. Though contrary views exist on ethnic conflict, it was the NGOs that contributed mostly to bridge the gaps between civilians of all races. They not only facilitated such moves but also bridge the most needed gap, which the government was not capable of. In the governance field, it is the NGOs which were responsible for mainstreaming anti corruption and political integrity dialogue, amidst, of course, many unprecedented risks.
Hongying Wang, Associate Professor at Syracuse University, in a study on Chinese NGOs in the historical context found that in the 1980s, “the China gradually withdrew from planning all aspects of the economy. Then in the 1990s, there was a new focus on the state’s withdrawal from society which saw the initial emergence of NGOs. The theme, as advertised by the government, was “small government, big society.” Wang was asked, why would an authoritarian government like China allow for NGOs to exist, she gave several reasons. “They reduce the financial burden on the government, especially the welfare function; they help in the planning and coordination of the market economy; they create a channel for orderly political participation; they provide a forum for training and learning about best practices; and they respond to pressures from international organizations.”(Woodrow Wilson International Centre - China's NGOs: Independent Actors or Government Puppets? 2006). This is by far the undisputed reality the governments all over the world are faced with.
End of Part 1;
(Part 2 is on Authoritarian Regimes Vs. NGOs covering the issues of Approach of Authoritarian Regimes on NGOs, d ulterior motives of regulating NGOs and dealing with corrupt NGOs)