By JC Weliamuna
(Attorney-at-Law, Eisenhower Fellow, Senior Ashoka Fellow)
(This article is a continuation of the previous article Breaking the Backbone of the Sri Lankan Civil Society. Previous Article discussed three issues i.e. What is an NGO? Is it a human right? and the advantage of having NGOs.)
Approach of Authoritarian Regimes
The constant struggle between authoritarian regimes and NGOs reminds us of the historic struggle for freedom - the world over against oppression. Determined groups defeated feudal leaders to authoritarian dictators in the past. Probably the difference today is contextual. Today, the State utilizes a sophisticated methods and high level of technology to suppress civil society. World has witnessed that personal and political agendas of corrupt political leadership are mainly responsible for diverse moves to stultify the civil society.
Let us take one example; One time Attorney General and later Powerful Foreign Minister of Zimbabwe, late Patrick Chinamasa appealed to the newly established United Nations Human Rights Council in 2007 to come up with a framework that prohibits the funding of local NGOs operating in the field of human rights and governance saying they are being used to further the policies and interests of foreign governments that fund them.
The background of Chnamasa is worth noting here. In 2002, following what Chinamasa considered lenient conviction of three United States citizens, Zimbabwean High Court judge Fergus Blackie brought successful charges against Chinamasa for a conviction of “scandalizing the court.” Chinamasa had Blackie immediately arrested on charges of "corruption," on the grounds of having decided the case of a white woman improperly and without the support of the other judge that was sitting with him on the matter. NGOs were highly critical of the conduct of Chinamasa. After the case closed, Chinamasa declared various NGO's illegal, including leading Human Rights organisation the Amani Trust which provides support to victims of torture; and was reportedly accused of working with the British government to unseat President Robert Mugabe and destabilize the nation. Similar examples can be drawn from other authoritarian regimes and draw a parallel why NGOs are banned or harassed in those countries.
Authoritarian regimes generally accuse NGOs of being part of a hegemonic control where the West is interfering in the internal affairs of those countries. This is a usual slogan among “pro-dictatorial opinion makers” as well. This is a political debate that can be argued either way from different perspectives but if a country is subject to international law, one needs to understand the implications of violations of international law. The fact remains that the international law requires signatories of the international conventions to implement the obligations under the conventions, within their jurisdictions. All human rights conventions are implemented within a domestic jurisdiction, only if they are ratified. At no stage, for example, Sri Lanka has “involuntarily” ratified those human rights conventions.
Thus there is no justification to blame the international community or NGOs, when violations of human rights in Sri Lanka or any other country are pointed out. On the other hand, almost all human rights conventions have a mechanism to monitor the human rights conditions in the domestic jurisdictions, which is not an external interference. We should also keep in mind that gross human rights abuses are no longer a domestic matter and the international law has left no room to argue the contrary.
There is often observed commonalities among countries which do not tolerate independent associations. The leaders of political parties and high level Government officials have often failed to encourage tolerance amongst their supporters. Instead, statements have been made that overtly foster prejudices and violate the right to freedom of association. They do not believe freedom of association can be enjoyed by those who oppose their views. If an association gains international recognition at any level, then such associations will generally be called traitors (or conspirators) who damage the image of the country, as if those authoritarian regimes have built an unassailable image for the respective countries.
Authoritarian dictators (some of whom have been elected) often claim that they represent people as opposed to unelected NGOs, who are dependent on foreign funds. Legitimacy of NGOs is a topic well researched. Sources of legitimacy of NGOs are different from legitimacy of political entities or representative bodies. Their legitimacy does not depend on the number of members or endorsements from public or political authorities. They draw legitimacy from legal and moral sources. The context in which human rights organizations and NGOs operate is by no means uniform and therefore the method of gaining legitimacy may also vary. By no means should NGOs be unaccountable. They should be accountable to their members (if any), donors and the public whom they claim to represent, if any. However this article does not focus on the debate of NGO accountability. Suffice it to say here that the concept of accountability applicable to NGOs is different from that of political authorities, representative bodies or companies.
Regulating NGOs – for What?
There is also a question whether the state can regulate NGOs and, if so, to what extent. The jurisprudence on the subject makes it clear that regulating certain aspects of NGOs may not be unlawful. For example, any moves to compromise the work of NGOs may result in violating major international conventions and constitutional rights.
Human rights approach does not permit specific and arbitrary additional regulatory mechanisms affecting individual’s rights such as freedom of association. For example, if an NGO engages in distributing food, the normal law requires such food to be in edible condition and no specific or additional regulation is required to control NGOs that distribute food. The Leading case NAACP vs. Alabama involves the decision of State of Alabama to prevent the operational activities of the National Association for the Advancement of Colored People (NAACP) in Alabama. The question was the validity of the order made under the relevant law requiring the NAACP to disclose all requested data regarding the NAACP. The Supreme Court of USA held that “It is hardly a novel perception that compelled disclosure of affiliation with groups engaged in advocacy may constitute an effective restrain on freedom of association”.
Regulating NGOs is a topic discussed in many countries from time to time, without even understanding the NGOs in a proper context, particularly without understanding its human rights dimension. They often want to regulate NGOs with a view to controlling their activities and making them ineffective. There is evidence the world over that often regulations and specific investigations (such as ad hoc commissions of inquiries) into affairs of NGOs are nothing but witch-hunting. Often the political leaders are misled on the subject by corrupt officials and political appointees, when their corruption is exposed by NGOs. Legitimate statutory power is abused often to silence the NGOs.
Among the tools used by corrupt regimes to curtail NGO activities are establishment of partisan parliamentary committees, arbitrary police action, Central Banks interventions, spying through telecommunication and other regulatory authorities and ad hoc committees/ commissions appointed by the executive. In that context, regulating the NGOs becomes yet another sham.
It is often recognized in modern democracies that threats on human rights defenders, NGO activists and unfair moves against NGOs have a chilling effect on citizen’s freedom of association. Thus any moves to regulate or control NGOs, beyond the recognized limitations under the human rights conventions, will be seen by the international legal community as being a major violation of human rights. This aspect is often forgotten, when hurried actions are taken by politicians instigated by interested parties.
Unfortunately in our country, politicians want the people to believe that the sun rises and flowers blossom because of the politicians! Any challenges to this myth might be called a conspiracy against sovereignty.
NGOs in Sri Lanka Corrupt? Let Us Close Them!
NGOs are corrupt and therefore they must be shut! This is a common but probably the poorest argument of all. The surveys conducted in Sri Lanka, (also backed by various statements of public authorities themselves) often suggest that police and politicians are the most corrupt entities in the country. Are we therefore demanding that the police to be closed? Or, Politicians to be imported? Certainly the answer is No. We need to take measures to ensure integrity of those public institutions. If the parliamentarians or police are corrupt, is it not so serious as not to address the issue? We must address the integrity issues of institutions as a matter of urgency. Similarly, if the NGOs are corrupt, then steps must be taken immediately to deal with those corrupt NGOs, under the normal law, while addressing integrity issues of NGOs. Undoubtedly, there are corrupt NGOs, corrupt politicians, corrupt public institutions, corrupt journalists and corrupt priests but the issue of corruption needs to be addressed separately in a more systemic and transparent manner, without ulterior motives.
Regulating NGOs and restricting NGO activities today does not seem to be motivated to clean NGOs (or any legitimate ground) but rather to silence the dissenting voices and prevent exposure of corruption. There may also be certain political opinions that civil society is taking the place of political parties and thus politicians lose their ground. Is there any alternative to NGOs at least to complement the government’s efforts in meeting human needs in Sri Lanka?
In many countries respecting values of self esteem and democracy, NGOs are not enemies but friends and partners. Ill-conceived advisers of governments and misconceived political ideologies in few countries have made NGOs enemies of the government itself. I like to end this discussion with a quote from Nelson Mandela: “If you want to make peace with your enemy, you have to work with your enemy. Then he becomes your partner." Democracies are easily identifiable; one yardstick is that in a democracy, the government is a friend of the civil society, even though they peacefully, but powerfully, challenge the political ideology of the government.