Re: New legislation threatens freedoms of assembly, association, opinion, and expression
To: Dr. Gauhar Rizvi, Honourable Adviser to the Prime Minister, International Affairs
From: Siobhan Airey, M.Sc., LLM, PhD candidate, LRWC
Date: December 3, 2012
I am writing to you on behalf of Lawyers’ Rights Watch Canada (LRWC), a committee of lawyers that promotes human rights and the rule of law internationally by protecting advocacy rights.
We are concerned that legislation currently being considered by the Government of the People’s Republic of Bangladesh on the regulation of NGOs will infringe on the right to peaceful assembly and association detailed in the UN International Covenant on Civil and Political Rights (ICCPR) in a manner contrary to the UN Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms (the “Declaration on Human Rights Defenders”), and the Constitution of the People’s Republic of Bangladesh.
The NGO Affairs Bureau (NGOAB), under the Prime Minister’s Office, has drafted a proposed Bill, the Foreign Donations (Voluntary Activities) Regulation Act 2012, which is a combination of two existing ordinances (the Foreign Donations (Voluntary Activities) Regulation Ordinance, 1978 (XLVI of 1978) and the Foreign Contributions (Regulation) Ordinance, 1982 (XXXI of 1982)) (the “Draft Foreign Donations Bill”).
LRWC understands that the purpose of the Draft Foreign Donations Bill is to regulate NGO activities. We are concerned that its provisions may be interpreted and used by government officials to wrongfully curtail the legitimate activities of human rights organisations, thereby posing a serious threat to the financial and operational independence of civil society organisations in Bangladesh.
LRWC reminds the Government of the People’s Republic of Bangladesh of its positive obligation to ensure freedoms of peaceful assembly, association, opinion and expression (in accordance with Articles 19, 21 and 22 of the ICCPR), to respect the principles set forth in the Declaration on Human Rights Defenders, and to protect rights guaranteed by the Constitution of the People’s Republic of Bangladesh.
LRWC stresses the importance of ensuring that revisions to the laws governing NGOs are undertaken in consultation with civil society, in line with the Declaration of the Fourth High-Level Forum on Aid Effectiveness in Busan in 2011.
Provisions of concern
LRWC is particularly concerned with clauses in the Draft Foreign Donations Bill that provide the NGOAB with broad discretionary powers to:
- deny registration to NGOs in receipt of foreign donations/contributions, with provision for only a ‘reasonable opportunity’ to be heard (clause 17);
- change or make corrections in the proposed project of an NGO before approving the project (clause 10(5));
- monitor and evaluate the activities of NGOs in receipt of foreign donations/contributions at the local level, with vague guidance on how this should be undertaken (clause 15 (13));
- penalise NGOs that do not comply with the regulations on grounds that are too vague to enable compliance; and
- cancel NGO registration on extensive grounds that are also vague and overly broad.
Reports received by LRWC from civil society in Bangladesh indicate that, in recent months, the NGOAB is implementing provisions of the Draft Foreign Donations Bill before it is passed and using draft provisions to prevent NGOs from engaging in legitimate activities in regions around Bangladesh.
In contravention of ICCPR
Provisions of the Draft Foreign Donations Bill potentially contravene the ICCPR (ratified by Bangladesh 6 September 2000) guarantees of rights of peaceful assembly (article 21) and association (article 22). Freedom of association includes the right of groups to operate freely and to be protected from undue interference. States have a negative obligation not to unduly obstruct the exercise of this right through arbitrary activities, procedures, and practices that may put the independence of associations and the safety of their members at risk.
Furthermore, the UN Special Rapporteur on the Rights to Freedom of Assembly and Association recommends, as best practice, legislation that does not prescribe the approval of authorities before receiving domestic and foreign funding. The Rapporteur highlights that states’ responsibilities to address money-laundering and terrorism can better be addressed through alternative mechanisms, such as banking and criminal laws that specifically prohibit these acts.
LRWC strongly encourages compliance with the Special Rapporteur’s recommendations on best practice regarding government regulation of associations in order to ensure that the legislation ultimately passed is fully compliant with Bangladesh’s international human rights obligations. Specific clauses in the Draft Foreign Donations Bill, such as those relating to the suspension and dissolution of NGOs, are clearly in contravention of best practice recommendations. With regard to NGO dissolution, the Rapporteur notes that:
The suspension and the involuntarily dissolution of an association are the severest types of restrictions on freedom of association. As a result, it should only be possible when there is a clear and imminent danger resulting in a flagrant violation of national law, in compliance with international human rights law. It should be strictly proportional to the legitimate aim pursued and used only when softer measures would be insufficient…. (and) that such drastic measures be taken by independent and impartial courts.
The provisions of the Draft Foreign Donations Bill do not meet the standards identified in this approach.
In contravention of the UN Declaration on Human Rights Defenders
LRWC also draws your attention to possible contraventions of state duties articulated in the Declaration on Human Rights Defenders. Adopted unanimously by the UN General Assembly in 1999, the Declaration affirms principles and rights that are based on human rights standards enshrined in legally binding instruments such as the ICCPR. Article 13 of the Declaration states that:
Everyone has the right, individually and in association with others, to solicit, receive and utilize resources for the express purpose of promoting and protecting human rights and fundamental freedoms through peaceful means, in accordance with article 3 of the present Declaration.
Limitations of this right – to collectively and individually engage in human rights advocacy – must accord with the scope and purpose of the restrictions allowed by the ICCPR and the Declaration.
The UN Special Rapporteur on Human Rights Defenders, Ms. Margaret Sekaggya, on presentation of her report to the UN General Assembly on 2 November 2012, cautioned against the use of funding restrictions to arbitrarily interfere with the word of human rights defenders, saying:
Access to funding is the area which has seen the most restrictions under recently enacted legislation. Restrictions on funding from abroad are being swiftly introduced in a number of States, with associations risking treason charges, having to declare themselves ‘foreign agents’ and to seek prior approval to do fundraising…..Legislation needs to be non-discriminatory, clearly defined, proportionate and necessary to ensure it is not applied arbitrarily, and not used to hinder the work of human rights defenders.
The Special Rapporteur’s report includes recommendations on minimum standards that should be applied in the development and application of legislation affecting the activities of human rights defenders based on principles of legality, necessity, proportionality, and non-discrimination, and with the provision of a range of constitutional and procedural safeguards.
LRWC encourages the Government of the People’s Republic of Bangladesh to consider the Special Rapporteur’s recommendations on best practices for laws regulating NGOs that respect and facilitate their work, and ensure that the legislation ultimately passed is fully compliant with Bangladesh’s international human rights obligations.
In contravention of the Constitution of the People’s Republic of Bangladesh (Constitution)
The Draft Foreign Donations Bill appears to also be contrary to provisions of the Constitution guaranteeing the right of all people to freedom of assembly (Article 37), freedom of association (Article 38), and freedom of thought and conscience (article 39).
LRWC strongly urges the Government of Bangladesh to ensure that the Draft Foreign Donations Bill is revised to comply with the requirements of the Constitution, the ICCPR and the Declaration and that revisions made are undertaken in consultation with civil society.
Thank you for your consideration of LRWC’s concerns. We look forward to your reply.