Democratic Governance, Voluntary

Associations and Peoples Rights

August 17, 2014,
Some months ago the Friday Forum issued a public
statement that reflected on certain emerging trends in our country, and
posed the question whether Sri Lanka is moving towards authoritarianism.
Though circulated widely, this statement did not receive extensive publicity
in the national newspapers. recent letter issued !To all "#$s! by the
%irector&'egistrar of an (nstitution known as the !"ational Secretariat for
"#$s! located in the )inistry of %efence confirms our concerns that the
government is on a dangerous path that will soon erode every basic norm
of democratic governance.
This letter of the "ational Secretariat is titled !"#$s acting beyond their
mandate.! (t states that !it has been revealed that certain "#$s conduct
press conferences, workshops, training of *ournalists, and dissemination of
press releases.! These are activities which are described as !beyond their
+"#$s, mandate.! The letter demands that !all "#$s should prevent from
such unauthorised activism with immediate effect.!
This circular clearly violates the rights of the people under our
-onstitution, as well as legally binding international treaties ratified by the
Sri Lankan State before this government assumed office. The rights of the
Sri Lankan people to freedom of association, access to information, and
freedom of speech and expression, are guaranteed in specific provisions of
our -onstitution. They have been interpreted by our Supreme -ourt and
accepted as critically important areas for realising the fundamental rights
of our people.
(n -hanna .ieris v. The ttorney #eneral +/001, 2ustice ' 3
merasinghe expressed the views of the Supreme -ourt and stated that
the citi4en5s right to freedom of association +under rticle /1 +/, +c, of our
-onstitution, is linked to other freedoms, including freedom of thought and
conscience +rticle /6,, and the right to free speech and expression
+rticle /1 +/, +a,. #roup associations, he said, advances these rights. (n
the 2anaghosha case +/001, 2ustice )ark Fernando said that these articles
of the -onstitution !recognise the right of every Sri Lankan to be different7
to think differently7 and to have and to express different opinions 8 not
merely a right to dissent privately in silence but to communicate
disagreement openly by word, conduct or action by peaceful and lawful
means!. !%issent or disagreement,! said 2ustice Fernando !is a corner
stone of the -onstitution....! 9is Lordship stated that democracy requires
not merely that dissent be tolerated, but that it be encouraged. (n
:anigasuriya v. S ( .ieris +/0;<, #.S de Silva +subsequently -hief 2ustice,
said that !a democratic polity ... implies that consent +of the governed to
be governed, shall be grounded in adequate information and discussion
aided by the widest possible dissemination of information from diverse and
antagonistic sources.!
.opular terms such as !accountability! and !transparency! are at times
used with reference to "#$s by unscrupulous persons both within and
outside the #overnment, to promote their own agendas. :e must
remember that "#$s are voluntary associations of people for purposes
that they define for themselves. They are established in Sri Lanka
according to diverse frameworks including under the -ompanies ct =66>.
Some "#$s have registered under the controversial Social Services ct,
and agreed to provide information on their budgets and work programmes.
"#$s are accountable like private persons only if they break the law of the
land. The existing laws and procedures should not restrict "#$s and the
people?s fundamental rights under the -onstitution, including the freedoms
referred to in the above decisions of the Supreme -ourt. (f there exist laws
and practices that contravene these basic principles of democracy and our
right to freedom of association and expression, then such laws should be
repealed or amended, and such practices abandoned. $ur laws and
practices should always be within the principles of the fundamental rights
assured by our constitution and the international standards to which our
country has subscribed to better secure the rights of our people.
.olice officers, at the same time, have a duty as officers of the state to
ensure that people can exercise their right to assemble together peacefully
and en*oy their right of free exchange of information and views. Such
assemblies must be protected from invasion by miscreants or other
uninvited persons, as liberty of the individual needs as much protection
from other individuals as from governments.
The #overnment and the current Foreign )inister consistently refer to the
rights of a sovereign Sri Lankan State to resist national and international
review of the government5s performance on human rights. They do not
seem to know, or are deliberately concealing from the public, the fact that
the concept of the sovereignty of a State has been modified significantly
by many decades of development in -onstitutional and (nternational
9uman 'ights law.
state which has a national constitution guaranteeing the enforceability of
citi4en5s fundamental rights, and a state which is bound by international
law under treaties that it has voluntarily signed, must fulfill legal
obligations to citi4ens under these instruments. The Sri Lankan state has
surrendered sovereignty to the extent that it has voluntarily agreed to
have its performance reviewed both by its citi4ens and the community of
member states of the @nited "ations. The government, acting through the
%efence establishment, cannot violate the rights of the people that elected
it to public office, and *ustify these violations by referring to state
sovereignty. $ur -onstitution says very clearly that !(n the 'epublic of Sri
Lanka sovereignty is in the people, and includes the powers of government
+legislative power exercised by .arliament, executive power exercised by
the .resident, fundamental rights and the franchise! 8 rticle A and 1 +a,
and +b,. The perception that any critical review of government
performance by the people including by "#$s and civil society is an act of
treachery, which undermines the independence and sovereignty of our
country, has been re*ected time and again in interpretations of our national
-onstitution by respected *udges of the apex court, the Supreme -ourt of
Sri Lanka.
"#$s are important actors that have recognised legal status under
national and international law, to raise awareness on issues concerning
governments5 performance relating to human rights protection and
fulfillment. Sri Lanka as a member state of the @nited "ations must
conform to these current norms on "#$ and civil society participation, and
their role and responsibilities in evaluating the human rights situation in
our country. ll the activities mentioned in this letter of the "#$
Secretariat fall within and not outside the mandate of "#$s, supporting
critically important citi4ens5 rights.
The criticism of the circular after it was sent to "#$s has led to
contradictory statements by officials. The Bxternal ffairs )inistry issued a
strong statement *ustifying the circular as a legal order because "#$5s
were failing to follow guidelines set for registration under the Social
Services ct. 9owever, .rime )inister %. ). 2ayaratna stated in .arliament
that the circular from the )inistry of %efence was not an order but a
circular of !instruction! with a !request! to act within the guidelines that
"#$s had accepted at the time of registration.
The public should note that the circular quoted above states that !"#$s
should prevent from such unauthorised activism with immediate effect!. (s
this the .rime )inister5s idea of language of gentle persuasion or is this a
military order from the %efence BstablishmentC
The policy8making establishment of "#$ Secretariat and the )inistry of
%efence seem unaware of the laws of our country, or are deliberately
adopting policies that violate them. (t is shocking that the .rime )inister
and )inistry of Bxternal ffairs are seeking to *ustify these violations and
the %efence )inistry circular on "#$s, supporting an erosion of our
-onstitution and the law of the land on the peoples5 right to freedom of
association, freedom of speech and information.
The recently issued and obnoxious circular to "#$s must be challenged by
the people of this country. :e must not legitimise this public re*ection of
the norms of democratic governance by a government that has been
elected to hold office on behalf of the people. :e cannot allow an erosion
of the -onstitutional guarantees on peoples5 rights by a defence
establishment that is steadily and dangerously acquiring a status and role
in government that is both illegal and dictatorial.
2ayantha %hanapala
.rof. Savitri #oonesekere
$n behalf of The Friday Forum. +)r. 2ayantha %hanapala, .rofessor Savitri
#oonesekere, %r. #. @svatte8aratchi, )s. Suriya :ickremasinghe, )s.
)anouri )uttettuwegama, .rofessor -amena #uneratne, 'ev. %r. 2ayasiri
.eiris, %r. %eepika @dagama, 't. 'everend %uleep de -hickera, %r.
%evanesan "esiah, %r.@patissa .ethiyagoda, )r. Tissa 2ayatilaka, )r.
hilan Dadirgamar, )s, %amaris :ickremesekera, )r. 2avid Eusuf, )r.
%anesh -asie8-hetty, )r. Fai48ur 'ahman, %r. Selvy Thiruchandran, %r
.-.Fisvalingam, .rofessor r*una luwihare, )r. 2.-. :eliamuna,
.rofessor 'an*ini $beyesekere, )s. Shanthi %ias, )r. -handra 2ayaratne.,
Posted by Thavam