Tuesday, July 15, 2014

Fundamental rights of NGOs!

By Hasaka Ratnamalala

Recently a huge uproar erupted just after the Director of National Secretariat for Non Governmental Organizations issued a directive to all NGOs in the country suggesting to act according to their mandate.
Several NGOs, certain lawyers who are directly connected to those NGOs and the countries which pump money to these organizations made several press releases against this directive and most of such statements indicate that the directive of the director of National NGO secretariat violate  freedom of speech expression and the freedom of association of those organizations.
Before go further with this outcry, I think it is important for us to understand what is this freedom of speech, expression and freedom of assembly which guaranteed by the constitution of Sri Lanka and who is entitled to that right.
Sri Lanka’s Constitution in its Chapter 3, article 14 indicates: 

14. (1) Every citizen is entitled to -
(a) the freedom of speech and expression including publication;
(b) the freedom of peaceful assembly;
(c) the freedom of association;
(d) the freedom to form and join a trade union;
(e) the freedom, either by himself or in association with others, and either in public or in private, to manifest his religion or belief in worship, observance, practice or teaching;
(f) the freedom by himself or in association with others to enjoy and promote his own culture and to use his own language;
(g) the freedom to engage by himself or in association with others in any lawful occupation, profession, trade, business or enterprise;
(h)  the freedom of movement and of choosing his residence within Sri Lanka; and
(i) the freedom to return to Sri Lanka.
(2) A person who, not being a citizen of any other country, has been permanently and legally resident in Sri Lanka immediately prior to the commencement of the Constitution and continues to be so resident shall be entitled, for a period of ten years from the commencement of the Constitution, to the rights declared and recognized by paragraph (1) of this Article.

It is very clear according to article 14(1) constitution that all these rights are entitled to every Citizenand a “citizen” is as described in Article 14(2) of the Sri Lankan constitution, is “a person who, not being a citizen of any other country has been permanently and legally resident in Sri Lanka”.

Also there are no such express or implied laws to indicate that a Non Governmental Organization has the equal legal status as the citizens of the country or NGOs could be entitled to fundamental rights under the constitution of Sri Lanka.

Then how on earth a NGO could make such a claim, that the directive of the director of NGO secretariat violates; its freedom of speech, expression or the freedom of association of NGOs?

In Sri Lanka a NGO on its current format could be an incorporated organization under  the provisions of the Voluntary Social Service Organizations (Registration and Supervision) Act Number 31 of 1980 and Voluntary Social Service Organizations (Registration and Supervision) (Amendment) Act Number 8 of 1998 or as a non-profit organisations under the Companies Act. None of these Acts have any provision to indicate that once it’s being incorporated, such organization could equate with a citizen of the country.

In legal terms whether it is a NGO, a corporation or any other organization it is a legal entity, allowed by legislation, which permits a group of people, as shareholders or directors, to apply to the government for an independent organization to be created, which can then focus on pursuing set objectives, and empowered with legal rights which are usually only reserved for individuals, such as to sue and be sued, own property, hire employees or loan and borrow money.

There is no outright power to those organizations to speak or to do whatever the organization feels. Whatever they do or speak has to be within the limits of law and within its mandate. It is quite illogical to state that it could do whatever it feels.

Our constitution clearly indicates that a “Citizen” is a “natural person” and not a “legal entity” and fundamental rights are entitled only to citizens of the country.

Writer is a freelance journalist, attorney-at-Law and currently articling student at Law Society of Manitoba, Canada

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