Prof. Rohan Samarajiva.
Why control?
It is reasonable to ask why a Government that cannot exert effective control over its prisons and foreign-debt repayments (both core activities of the state) wants to control the activities of those providing social services without the use of taxpayer funds (the rationale for current VSSO Act). If the Government is giving taxpayer money to a social service organisation, conditions may be imposed on the grant without going to all this trouble. And what is the rationale for wanting to supervise CSR activities of for-profit entities if they are not specifically mentioned in the Articles of Association (section 2(3))?
To the best of my knowledge, there has been no performance audit of the NGO Secretariat that has been functioning for over four decades. It is illogical to create a Competent Authority (CA) that evokes emergency rule and add more powers to the NGO Secretariat and expand its scope absent such as assessment. The bill should be withdrawn until the completion of a performance audit of the NGO Secretariat under the current VSSO Act. This would be the basis for the formulation of legislation that will provide an effective solution to a real need.
It may be inferred that the motivation for the legislation lies in the need to “develop appropriate methodology to identify, assess and understand money laundering, terrorist financing and financing of proliferation of weapons of mass destruction risks of non-governmental organisations, and conduct monitoring of non-governmental organisations on a risk-based approach” (section 4(1)(j)). If this is indeed the objective, It is unclear why the Government believes the CA and the NGO Secretariat, constrained by Government pay scales and rules, will possess the expertise that is now being developed at the far-better-endowed Financial Intelligence Unit (FIU), the Central Bank of Sri Lanka (CBSL) and the FCID. Finding evidence of money laundering etc. is not a simple matter. It requires specialised skills and access to information within banks. The CA and the NGO Secretariat possess neither of these attributes. The FIU, the CBSL, and the FCID do to varying degrees.
Optimal solution
Problems caused by money laundering and associated actions are better addressed by mandating each organisation considered as being potentially engaged in these activities to maintain audited accounts and submit them to their respective registering authorities. This obligation currently applies to all entities incorporated under the Companies Act, No. 7 of 2007. The Societies Ordinance, No. 16 of 1891 as amended, also has this requirement. If there are any others, such as political parties or entities created by Private Member’s Motions approved by Parliament, the requirement may be added through amendments to the relevant statutes. If the objective is legislation that can be shown as evidence of responsiveness to Financial Action Task Force (FATF) recommendations, this can take the form of a new Act.
The audited accounts may be published online by the relevant government authorities allowing any member of the public or any organisation to flag suspicious transactions for the attention of the FIU, CBSL or the FCID. If state institutions possess the capability, they may also use AI to proactively detect anomalies in the published accounts and initiate investigations.
This would make the proposed Bill (except for section 24(1) which repeals the VSSO Act) redundant.
Second-best solution
In the event the Government does not accept, for whatever political reason, the above solution to the problems of money laundering, etc. and insists on proceeding with this pernicious bill,
the harm caused to fundamental rights as enunciated in Article 14(1) of the Constitution may be alleviated by a few amendments.
The duties set out in section 15 of the Bill, especially the duties to “Align with the policies of the Government” and “Not induce or cause to induce any public disorder which affect safety and interests of the general public,” may be made less offensive to democratic values. In many instances it is unclear what the Government policy on a specific matter is.
For example, the Department responsible for the implementation of the National Physical Plan has objected in writing to the extension of the Central Expressway to Galagedara and to the Ruwanpura Expressway. But the government has allocated funds for both and is proceeding with their construction. What is the policy NGOs must align with, and which can they protest?
What is the duty to “align”? Who decides whether the alignment is adequate? And why should every organisation in the country (other than those exempted) align with the policies of governments?
The broad sweep of the law subjects to intrusive government regulation the basic democratic right to advocate for changes in legislation (such as the present bill) and public policies. Take the case of a company advocating for legislative or policy changes, such as those affecting the mushrooming online betting industry. Would they be exempt if they claim that such actions are intended to bolster their profits (likely to blunt the power of their lobbying, but feasible)? But a not-for-profit organisation that is engaged in similar (but opposed) lobbying to regulate or ban online betting on the basis of the public interest be subject to censure or worse by the CA because it lacks a profit motivation. Policy making and legislative processes will be diminished by reducing the permitted voices to those of profit-motivated entities.
Who defines what the interests of the general public are? How does one differentiate between “peaceful assembly” guaranteed by the Constitution and “public disorder”? The drafters are directed to the Janaghosha decision (Amaratunga v. Sirimal and others (1993) 1 Sri L.R. 264. SC APPLICATION NO. 468/92)
It would be necessary to radically reduce the draconian powers granted to the CA by section 5, 15, 16, and 17 by ensuring that court orders are sought for any intrusions into the functioning of entities created by citizens in the course of operationalising their rights under the Constitution, including but not limited to Article 14(c ) the freedom of association, and Article 14(f) freedom to enjoy and promote his own culture.
It is only reasonable that the CA, even if left with diminished powers as proposed above, be shielded from political direction and influence. This would necessitate amending the current bill to require the CA (ideally a differently named collegial body) to be appointed with the concurrence of the Constitutional Council as the Attorney General conceded in the case of the Online Safety Bill. The appropriate provisions for reappointment, remuneration, term and removal may be taken from prior legislation.