There is a vast difference between prosecution and persecution. This difference may not be quite so clear in Sri Lanka anymore. There is a great deal of persecution going on under the name of prosecution and the public may be very much confused about what is a legitimate prosecution and what is, in fact, a terrible persecution.
Leaving aside this contextual situation in Sri Lanka for a moment let us go into a basic reflection on what, under a rule of law system, is a legitimate prosecution and what is, in fact, a persecution. A legitimate prosecution begins with an existing law in the country. The law clearly lays down some act which may be considered a crime. A complaint about the commission of a crime by someone is the beginning of a path that may lead to a prosecution before a court of law.
The subject matter of the present controversy on NGOs is the allegation that they may be illegally benefiting from funds received from donors for public purposes. Basically the allegation is that there is some form of corruption going on. Such perceptions exist in the country not only regarding NGOs but also many other persons. Throughout the country one of the main complaints is about corruption and the Illicit Enrichment of persons who misuse funds which belong to the public.
A clear basis for dealing with such situations is to have a law that clearly defines Illicit Enrichment and other laws that have been adopted in other countries for the purpose. Like the public servants who use public funds others who also use funds from donors could easily be brought within the category of persons who come under the purview of such a law. In Bhutan for example, the Illicit Enrichment law applies to all public servants and others who use public funds including NGOS. In India also there is room for persons other than public servants to be included under similar legal provisions.
The importance is that whenever investigations begin they should begin within the framework of a clearly defined crime and that the persons being investigated must be clearly told of the crime for which they are being investigated. The Sri Lankan Constitution clearly provides the right of any person who is being investigated to be told the reason for such investigation on the basic of whatever crime he is alleged to have committed. Arbitrary investigations without clear accusations about what the suspicions are and the wrong that has been committed is a clear infringement of the rights of persons, whether the persons are public servants or citizens, including those persons belonging to NGOs.
Besides, all investigations need to be conducted under the provisions of criminal law. All citizens are equal before the law. (Unfortunately, even this basic legal premise is not valid in Sri Lanka as the executive president is placed above the law by Article 35 of the constitution). Investigations outside the provisions of the Criminal Procedure Code amount to an arbitrary action.
To talk sanctimoniously about the prevention of corruption without taking action to enact proper laws to enable prosecution of all violations is pure hypocrisy.
Prosecutions require an impartial prosecution agency. How far Sri Lanka can claim to have such an agency now is very doubtful.
Under these circumstances what appears to be taking place under the guise of an investigation into some NGOS appears more like a persecution rather than a legitimate action.
The Asian Human Rights Commission has been calling for a long time now for the reform of the country’s corruption laws and the development of an effective corruption control agency similar to that of Hong Kong’s Independent Commission against Corruption (ICAC). While reaffirming our position on this matter we also call for the reform of the country’s prosecutor’s office which the Attorney General’s Department. These measures are necessary for many reasons including the prevention of persecution under the guise of prosecution.